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Legal news from Monday, March 30, 2009

Rights group urges Arab League to pressure Sudan president to readmit aid groups
Devin Montgomery on March 30, 2009 5:04 PM ET

[JURIST] Advocacy group Human Rights Watch [advocacy website] has called on the League of Arab States [official website, in Arabic] to urge Sudanese President Omar al-Bashir [BBC profile; JURIST news archive] to allow expelled foreign aid agencies [JURIST report] back into the country, according to a letter [text; press release] released by HRW on Monday. Bashir took the action after the International Criminal Court (ICC) [official website] issued a warrant [JURIST report] for his arrest on war crimes charges. HRW warned that the expulsion of the agencies has effectively cut in half the aid going to Darfur refugees, and that some camps are now without clean water or medical care. HRW also urged the Arab League to abandon its calls for the UN Security Council to exercise its power to suspend the charges [Rome Statute text] against Bashir, saying that such action is unwarranted and would only prolong existing problems in the country:

Human Rights Watch believes that a deferral would be wholly inappropriate in the current context. It would reward the denial of vital assistance to vulnerable populations-thereby encouraging further abuses-and would risk impunity for widespread atrocities without identifiable benefits for international peace and security.

The peace process for Darfur has long been stalled, as you know, because of lack of political will to end the conflict that is unrelated to the ICC. Although the Sudanese government and one rebel group, JEM, signed a "declaration of intent" in February 2009, it did not include any significant concessions or a commitment to a ceasefire. Moreover, as a suspension under article 16 is limited to 12-month periods, once a deferral takes effect, the Sudanese government can be expected to use annual threats of violence and empty promises to secure renewals.
The Arab League has maintained that the warrant against Bashir threatens [JURIST report] the country's peace process, a claim which HRW rejects. Despite the call by HRW, Arab League leaders reiterated their support [NYT report] for Bashir during an annual meeting Monday.

Last week, ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] said that Bashir's decision to expel the groups demonstrates that the ICC was justified [JURIST report] in pursuing the charges against him. Bashir has also threatened to expel [JURIST report] any remaining agencies, diplomats and peacekeepers in Sudan. Human rights and other groups have previously urged Bashir [JURIST report] to allow the agencies to remain in the country, and UN High Commissioner for Human Rights [official website] spokesman Rupert Colville has said that his office may investigate [JURIST report] whether Sudan's removal of the groups itself is a possible breach of human rights law or war crime.

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Supreme Court hears bankruptcy court jurisdiction case
Devin Montgomery on March 30, 2009 3:49 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] Monday in Travelers Indemnity v. Bailey [oral arguments transcript, PDF; JURIST report], where the Court will consider whether a bankruptcy court has jurisdiction to approve a third-party injunction provision in a plan of reorganization or related confirmation order. The cases arise from the bankruptcy of asbestos manufacturer Johns-Manville Corp. [corporate website]. The US Court of Appeals for the Second Circuit in 2004 held [opinion, PDF] that a bankruptcy court lacked that jurisdiction. Petitioners in the case argue that the court did have the authority under federal law [11 USC § 524 text], and that the Second Circuit itself had upheld that authority in an earlier 1986 ruling.

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Supreme Court to hear oral arguments on intervening in original jurisdiction cases
Jaclyn Belczyk on March 30, 2009 2:20 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] agreed [order list, PDF] Monday to hear oral arguments in the case of South Carolina v. North Carolina to decide whether additional parties may intervene in a lawsuit between two states, over which the Court has original jurisdiction. A special master recommended [report, PDF] that three parties - the city of Charlotte, North Carolina, the Catawba River Water Supply Project, and Duke Energy Carolinas - be allowed to intervene in the lawsuit brought by South Carolina over water flows from the Catawba River. The state of South Carolina and the US government both dispute that recommendation, arguing that the states should speak for the interests of all their citizens.

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Cambodia genocide court begins substantive trial of ex-Khmer Rouge leader 'Duch'
Brian Jackson on March 30, 2009 1:27 PM ET

[JURIST] The Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] began the substantive portion of the first trial of a former Khmer Rogue [BBC backgrounder] leader Monday when Kaing Guek Eav [Trialwatch backgrounder; JURIST news archive] was brought before the court. Pretrial hearings [JURIST report] against Kaing, also known as "Duch," began last month, but the substantive portion of the trial began when the proceedings resumed [Phnom Penh Post report] Monday. The schedule of events [closing order, PDF] in the ECCC on Monday included a formal identification of Kaing, a recitation of his rights, and a reading of the charges against him [closing order, PDF], which include war crimes, premeditated murder, and torture. The trial will continue [court document, PDF] with opening statements on Tuesday and Wednesday of this week, and after that every Monday through Thursday until early July.

Kaing's trial is the first of eight [JURIST report] that the ECCC hopes to hear against former members of the Khmer Rouge, which has been accused of murdering 1.7 million Cambodians [PPU backgrounder] during their nearly four year reign. The ECCC has long been plagued with accusations of corruption and inadequate funding, with greater problems in recent years. Earlier this month, the ECCC reported that it would be unable to pay its Cambodian employees [JURIST report] for that month, one year after the court had requested $114 million dollars from the UN [JURIST report]. In February, Human Rights Watch warned that the ECCC trials were in danger of being tainted for their failure to follow fair trial standards [JURIST report], and in January a Cambodian court agreed to hear a corruption case [JURIST report] involving two ECCC judges.

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Rights group urges Greece to investigate alleged police abuses in wake of riots
Benjamin Hackman on March 30, 2009 12:39 PM ET

[JURIST] Greek authorities are not doing enough to ensure that the nation's police respect human rights, according to a Monday briefing [text, PDF; press release] from Amnesty International (AI) [advocacy website] urging the government to investigate and address "long-standing problems of policing." AI said allegations of human-rights abuses, including torture, the use of excessive force, arbitrary detentions, and denial of prompt legal assistance, continue to be lodged against Greek police. AI's briefing sets forth recommendations for helping Greece comply with its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms [text, PDF] and the International Covenant on Civil and Political Rights [text]. The recommendations include establishing an independent commission to investigate and publish a report about the December 2008 shooting death of 15-year-old Alexis Grigoropoulos [BBC report] and the protests that ensued; implementing measures to prevent police from using excessive force when responding to demonstrations; and investigating patterns of alleged abuses that have diminished public confidence in policing. Greece has not responded to the AI briefing.

The Greek government said earlier this month that it would revamp its police force [JURIST report] in light of December demonstrations and riots [BBC backgrounder] that occurred in response to Grigoropoulos' death. An Athens police officer shot and killed Grigoropoulos after he and other youths allegedly threw stones at a police car. Police said Grigoropoulos was shot as he tried to hurl an explosive at officers. Demonstrations and riots protesting the shooting took place for weeks after Grigoropoulos' death. The officer who shot Grigoropoulos was suspended and charged with manslaughter. The Greek police have been accused of being both ineffective and unnecessarily violent [JURIST op-ed] in their response to the protests.

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Second US Army sergeant convicted of killing Iraqi detainees
Matt Glenn on March 30, 2009 10:25 AM ET

[JURIST] A US Army [official website] sergeant was convicted Monday and sentenced to 35 years in prison for killing four unarmed Iraqi prisoners [NYT report] in 2007. Sgt. First Class Joseph Mayo, formerly of the 1st Battalion, 18th Infantry [official website] and two other soldiers were charged in September [JURIST report] with shooting the four bound and blindfolded prisoners and disposing of their bodies in a canal. Mayo pleaded guilty at his court-martial proceeding Monday, saying he shot the prisoners because he feared they would be released due to lack of evidence against them. The killings followed a series of attacks against US troops and may have been retribution for the deaths of two US soldiers. Sgt. John Hatley, also charged in the killings, faces court martial proceedings [JURIST report] beginning April 13. According to Mayo's lawyer, Mayo has agreed to testify against Hatley [AP report].

The third man charged, Sgt. Michael Leahy Jr., was convicted [JURIST report] in February and sentenced to life in prison with the possibility of parole. Staff Sgt. Jess Cunningham, originally an alleged co-conspirator against whom charges were dropped, testified against Leahy [JURIST report] at his trial. Fellow unit members Spc. Belmor Ramon and Spc. Steven Ribordy pleaded guilty last year to conspiracy and accessory to murder [JURIST reports], respectively, in connection with the incident.

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Afghanistan high court extends presidential term until delayed August election
Jay Carmella on March 30, 2009 8:16 AM ET

[JURIST] The Supreme Court of Afghanistan [official website] decided Sunday to allow President Hamid Karzai [BBC profile; JURIST news archive] to remain in office until this August's general election [AOP election materials]. Under the Afghanistan Constitution [text], Karzai's term in office expires May 21, but the court held [NYT report] that since the extension of the election until August for security reasons was contrary to the constitution, the extension of Karzai's presidency would also be appropriate. Karzai's rivals hoped the court would require the appointment of a temporary government, fearing an extension of his term will give him an unfair advantage in the upcoming election. The court's decision is not binding. A grand tribunal, made up of approximately 1,000 delegates from around the country, has final authority on issues related to the constitution. A spokesperson for the US Department of State [official website] welcomed [statement] the court's ruling, and "call[ed] on the Government of Afghanistan, joined by its international partners, to make every effort to ensure that the conditions are created for genuinely free and fair elections that will reflect the will of the Afghan people."

Previous Afghani elections have been marred by allegations of fraud, allowing officials to remain in power beyond the expiration of their terms while results were reviewed. In 2005, the official results of the assembly elections were not available for nearly two months due to allegations of fraud [JURIST reports]. During that election a joint electoral board formed between Afghanistan and UN found that the irregularities were not enough [JURIST report] to call the results into question.

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Spain abortion law proposed changes cause widespread protests
Tere Miller-Sporrer on March 30, 2009 8:08 AM ET

[JURIST] Thousands protested the proposed liberalization of Spain's abortion laws in Madrid on Sunday. The changes, proposed earlier this month [JURIST report], include allowing abortions up to week 14 of pregnancy for any reason and lowering the age required for an abortion from 18 to 16. These reforms are in sharp contrast with the current law, established in 1985, which allows women over the age of 18 the right to abort only up to 12 weeks in cases of rape, up to 22 weeks in cases of fetal malformation, and at any stage where there are serious health risks to the mother. In protests organized by pro-life groups Derecho a Vivir, Hazte Oir, Medicos por la Vida and Provida Madrid [advocacy websites, in Spanish], demonstrators chanted "no right to kill, right to life" and urged the government not to adopt the proposed changes [AFP report]. Similar demonstrations [El Pais report, in Spanish] took place in cities throughout Spain on Sunday.

The panel tasked with investigating changes to Spanish abortion law was formed in September [JURIST report] at the request of Prime Minister Jose Luis Rodriguez Zapatero as part of a series of social reforms including the legalization of same-sex marriage [JURIST report] and streamlined divorce proceedings. Since the committee was formed, the conservative Popular Party [official website, in Spanish] has repeatedly expressed the opinion [El Pais report, in Spanish] that relaxed abortion laws would stand in opposition to Article 15 of the Spanish Constitution [text, in Spanish], which guarantees the right to life.

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DC Circuit dismisses suit against US for 1998 executive order to bomb Sudan
Eszter Bardi on March 30, 2009 7:53 AM ET

[JURIST] The US Court of Appeals for the DC Circuit [official website] on Friday upheld the dismissal [opinion, PDF] of a $50 million lawsuit against the US for the 1998 executive order authorizing a missile strike against a Sudan pharmaceutical plant issued by former president Bill Clinton [official profile]. The three-judge panel made its decision on grounds that Clinton's order was purely a political question [Cornell LII backgrounder] and not subject to judicial review. The Clinton administration justified the 1998 missile attacks as a response to terrorist attacks on US embassies in Kenya and Tanzania, since the pharmaceutical plant owned by El-Shifa Pharmaceutical Industries Company and Salah El Din Ahmed Mohammed Idris was allegedly financed by Osama bin Laden [BBC profile; JURIST news archive] and served as a base for terrorist operations. Plaintiffs El-Shifa and Idris deny any involvement in terrorist operations and filed a defamation and a law of nations claim under the Federal Torts Claim Act (FTCA) [28 USC § 1346(b)], seeking a declaratory judgment to absolve them from any alleged terrorist connections and compensation for the plant's allegedly unjustified destruction. While the district court dismissed the claim for a lack of subject matter jurisdiction, on appeal, the court relied on the principle that policy choices involving national security and foreign policy are the province of the executive branch and, as a matter of the separation of powers principle, fall outside of the judicial branch's review:

The making of such justifications is itself a policy decision that cannot be separated from the conduct of foreign relations and the exercise of the war power that it explains. Accordingly, we conclude that a decision on the defamation claim would necessarily cross the barrier marked by the political question doctrine. ... Plaintiffs’ defamation claim presents a challenge to the Executive’s foreign policy and national security decisionmaking, two areas clearly outside our authority. [citations omitted]
This was the third attempt of plaintiffs El-Shifa and Idris to recover damages for the destruction of the pharmaceutical plant. The initial suit was filed and dismissed as nonjusticiable in the US Court of Federal Claims [official website] under the Takings Clause of the US Constitution. The second action, brought as an administrative claim with the Central Intelligence Agency (CIA) [official website] under the FTCA, was dismissed by the CIA.

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For more legal news check the Paper Chase Archive...


Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible, ad-free format.


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