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Legal news from Monday, May 4, 2009

Sierra Leone war crimes court denies Taylor motion to acquit
Safiya Boucaud on May 4, 2009 4:42 PM ET

[JURIST] Judges for the Special Court for Sierra Leone (SCSL) [official website; JURIST news archive] on Monday rejected [press release, PDF] a motion for acquittal of all charges filed by lawyers for former Liberian president Charles Taylor [case materials; JURIST news archive]. The Rule 98 motion for acquittal [materials], which was submitted [JURIST report] last month following the close of the prosecution's case, maintained that the prosecution failed to provide evidence linking Taylor to any of the charges. In denying the motion, the court found that there was evidence that Taylor had participated in the crimes. Reading the court's decision, Justice Richard Lussick said:

it is not necessary for the purposes of Rule 98 to evaluate the sufficiency of the evidence in relation to each mode of liability and that it is sufficient if there is evidence capable supporting a conviction on the basis of one of those modes. ... In relation to the alleged participation of the accused, the Trial Chamber finds that there is evidence that the accused participated in the joint criminal enterprise.
Taylor's trial will resume in June.

Taylor is charged with 11 counts [indictment, PDF] of crimes against humanity, violations of the Geneva Conventions [materials], and other violations of international humanitarian law, to which he pleaded not guilty. In February, officials announced [JURIST report] that they expected the court to render a verdict by 2010, despite the SCSL's ongoing financial troubles. After complaints [JURIST report] of prejudice in 2007, the SCSL increased [JURIST report] Taylor's defense funding to $100,000 a month. Taylor claims to be indigent, but, in June 2007, a five-member UN investigatory panel found [JURIST report] that he retains control over millions of dollars hidden in African banks.

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Supreme Court orders Third Circuit to revisit FCC fine for Super Bowl mishap
Jaclyn Belczyk on May 4, 2009 3:54 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ordered [order list, PDF] the US Court of Appeals for the Third Circuit to reconsider its ruling upholding a $550,000 fine [JURIST report] against CBS for the infamous "wardrobe malfunction" incident in which pop singer Janet Jackson's breast was briefly exposed during the 2004 Super Bowl telecast. The Court granted certiorari in FCC v. CBS Corp. [docket], vacated the decision below, and remanded the case for further consideration in light of last week's decision in FCC v. Fox Television Stations [Cornell LII backgrounder], in which the Court ruled [opinion, PDF; JURIST report] 5-4 that the Federal Communications Commission (FCC) [official website] did not act arbitrarily and capriciously in changing its policy regarding fines for the broadcast of isolated expletives. The Third Circuit must now decide whether last week's ruling has an impact on the decision to uphold the fine.

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Japan protesters divided on calls for constitutional reform
Caitlin Price on May 4, 2009 3:46 PM ET

[JURIST] Japanese activists demonstrated [Japan Times report] Sunday on Japan's 62nd Constitution Day to voice opposing views about an approaching referendum on the country's pacifist constitution [text; JURIST news archive]. Efforts to reform the constitution are particularly focused on Article 9 [text], which has been interpreted to bar Japan from maintaining military forces and from using force in international conflicts except in self-defense. A three-year public consultation period on possible amendments is set to expire in 2010, thus paving the way for a national referendum on the proposals [JURIST report]. Proponents of the reforms say the constitution is outmoded and restricts Japanese participation in international negotiations, arguing that the text was forced on the country following World War II [Mainichi Daily News report] and must be updated. A bloc of activists opposed to the reforms [JURIST report] fear that pacifist ideals will be lost in the amendments. A recent survey found that 64 percent of Japanese residents oppose [Xinhua report] an Article 9 amendment.

Under Article 96 of the Constitution, possible constitutional amendments must be approved by both houses of the National Diet by a two-thirds vote, and the changes must then be approved by a majority of voters in a national referendum. Japan has struggled in recent years to balance its constitution with international demands. In January, Japanese defense minister Yasukazu Hamada ordered the country's Maritime Self-Defense Force [JURIST report] to combat piracy [JURIST news archive] in the waters surrounding Somalia, despite concerns that combat could be prohibited by Article 9. In April 2008, a Japanese court ruled that the country's dispatch of air force troops in Kuwait is unconstitutional [JURIST report], but did not order the government to redeploy the personnel. Former Japanese prime minister Shinzo Abe called for constitutional reform [JURIST report] in 2007, arguing that the pacifist constitution does not reflect changes in the country's foreign and security policies.

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US asking Germany to accept 10 Guantanamo detainees: reports
Safiya Boucaud on May 4, 2009 2:47 PM ET

[JURIST] A spokesperson for the German Interior Ministry [official website, in German] said Sunday that the US has asked Germany to take in up to 10 detainees from the Guantanamo Bay [JURIST news archive] military prison. The US government reportedly asked [Washington Post report] Germany and other European nations to accept detainees who cannot go back to their home countries but have been given clearance for release by the US government. The German government, like other European countries, is open to the idea but is being cautious and intends to review the detainees files on a case-by-case basis. The request has stirred up some opposition [Der Speigel report] among the German governing coalition members who believe that Germany should not get involved. In order to grant the US request to accept detainees, there must be approval by Germany's 16 interior ministers.

Last week, US Attorney General Eric Holder [official profile] said that the US has cleared 30 Guantanamo Bay detainees for release and will begin formally requesting [JURIST report] that European countries accept them within weeks. In March, top officials from the Obama administration met with leaders from the European Union (EU) [official website] to discuss preliminary plans to transfer [JURIST report] Guantanamo Bay detainees to European countries. Individual member states have also indicated their openness to accepting detainees, including Lithuania, Ireland, Germany, and Portugal [JURIST reports]. Other states have expressed reservations about accepting detainees, including Poland and Spain, while Italy [JURIST reports] and the Netherlands [AFP report] have said they will not accept detainees.

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Spain judge orders investigation of Israel role in 2002 Gaza bombing to continue
Caitlin Price on May 4, 2009 2:10 PM ET

[JURIST] A Spanish National Court [CJA backgrounder] judge on Monday ordered [text, PDF, in Spanish] investigations to continue into alleged crimes against humanity committed in a 2002 Israeli attack in the Gaza Strip [El Pais report, in Spanish; JURIST report], despite heavy criticism from Spanish politicians and prosecutors. Last month, Spanish prosecutors urged the court to decline the case [El Pais report, in Spanish] while an Israeli investigation remained open. The Israeli Office of the State Attorney also submitted a letter [text, PDF] to the Spanish court insisting that the Israeli judiciary was equipped to handle the inquiry and any resulting prosecutions. Judge Fernando Andreu [JURIST news archive] rejected the arguments, characterizing the Israeli inquiry as administrative rather than legal and ordering the Spanish case to continue. Israeli Defense Minister Ehud Barak [official profile] decried the order and said he would appeal to the Spanish government [Haaretz report] to block the proceedings. The Palestinian Centre for Human Rights [advocacy website], which initiated the complaint in the Spanish court, called [press release] the order "a major step towards achieving justice for victims."

The investigation implicates former Israeli defense minister Benjamin Ben-Eliezer [official profile] and six soldiers under his command in the 2002 bombing of former Hamas leader Salah Shehadeh's home in Gaza City that killed 15 people [NYT report], including Shehadeh and his family, and resulted in approximately 140 injuries. Israel has heavily criticized [Haaretz report] Article 23.4 [UN backgrounder, PDF] of the Judicial Power Organization Act, which allows Spanish courts to prosecute people outside of Spain for war crimes even when no Spanish citizens are involved. Spain is currently considering legislation [JURIST report] to limit the the scope of universal jurisdiction [AI backgrounder] applied by the National Court, which would restrict the court's jurisdiction over war crimes and genocide charges to those cases that have a substantial link to the country or its citizens by requiring an arrest in Spain and that the crimes be committed against Spaniards or have some historical link to the country. No date has been set for parliamentary consideration of the bill.

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Supreme Court to rule on constitutionality of life sentences for juveniles
Jaclyn Belczyk on May 4, 2009 11:50 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in four cases. In two of the cases, the Court will consider juvenile life sentences. In Graham v. Florida [docket; cert. petition, PDF], the Court will consider whether the Eight Amendment ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile's commission of a non-homicide. In the similar case of Sullivan v. Florida [docket; cert. petition, PDF], the Court will consider whether the imposition of a life without parole sentence on a 13-year-old for a non-homicide violates the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments, where the extremely rare imposition of such a sentence reflects a national consensus on the reduced criminal culpability of children.

In Hemi Group, LLC v. New York [docket; cert. petition, PDF], the Court will consider whether city government meets the Racketeer Influenced and Corrupt Organizations Act (RICO) [text] standing requirement that a plaintiff be directly injured in its "business or property" by alleging non commercial injury resulting from non payment of taxes by non litigant third parties.

In Shady Grove Orthopedic Association v. Allstate Insurance Co. [docket; cert. petition, PDF], the Court will consider whether a state legislature can properly prohibit the federal courts from using the class action device for state law claims.

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Supreme Court rules in identity theft, supplemental jurisdiction, arbitration cases
Jaclyn Belczyk on May 4, 2009 10:21 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] issued four opinions Monday. The Court ruled [opinion, PDF] unanimously in Flores-Figueroa v. United States [Cornell LII backgrounder; JURIST report] that a federal "aggravated identity theft" statute [18 USC § 1028A(a)(1)] applies only to individuals who knowingly use another person's identification documents. The US Court of Appeals for the Eighth Circuit had upheld [opinion, PDF] Ignacio Flores-Figueroa's conviction for using counterfeit social security and resident alien cards. In reversing the lower court decision, Justice Stephen Breyer wrote:

Congress used the word "knowingly" followed by a list of offense elements. And we cannot find indications in statements of its purpose or in the practical problems of enforcement sufficient to overcome the ordinary meaning, in English or through ordinary interpretive practice, of the words that it wrote.

We conclude that § 1028A(a)(1) requires the Government to show that the defendant knew that the means of identification at issue belonged to another person.
Justice Samuel Alito filed a concurring opinion, and Justice Antonin Scalia filed a concurring opinion, joined by Justice Clarence Thomas.

The Court ruled [opinion, PDF] unanimously in Carlsbad Technology, Inc. v. HIF Bio, Inc. [Cornell LII backgrounder] that a district court's order remanding a case to state court following its discretionary decision not to exercise supplemental jurisdiction [text, 28 USC § 1367(c)] is subject to appellate review. The US Court of Appeals for the Federal Circuit ruled [opinion, PDF] that such an order is barred from review [28 USC 1447(d)] as a remand for lack of subject matter jurisdiction. Reversing the opinion below, Thomas wrote, "[w]hen a district court remands claims to a state court after declining to exercise supplemental jurisdiction, the remand order is not based on a lack of subject-matter jurisdiction for purposes of §§1447(c) and (d)." Stevens and Scalia filed concurring opinions. Breyer filed a concurring opinion, in which Justice David Souter joined.

The Court ruled [opinion, PDF] 6-3 in Arthur Andersen LLP v. Carlisle [Cornell LII backgrounder; JURIST report] that the Federal Arbitration Act (FAA) [text] gives federal appeals courts jurisdiction to rule on the denial of compelled arbitration motions by non-parties to the agreement. The case stems from an effort by Arthur Andersen [corporate website] and other firms to limit the tax exposure of Carlisle and his business associates after the sale of their construction company. Carlisle had signed an arbitration agreement with Bricolage Capital LLC, one of the firms involved in the "leveraged option strategy" intended as a tax shelter. The IRS declared this strategy to be an abusive shelter, and assessed more than $25 million against Carlisle and his associates. Arthur Andersen sought to stay the proceedings of a suit brought by Carlisle alleging misconduct in a tax shelter scheme, on the grounds that another party to the suit had an arbitration agreement with the plaintiffs, and that equitable estoppel required that their claims also be arbitrated under that agreement. The US Court of Appeals for the Sixth Circuit disagreed [opinion, PDF]. In reversing the lower court ruling, Scalia wrote:
We hold that the Sixth Circuit had jurisdiction to review the denial of petitioners’ request for a § 3 stay and that a litigant who was not a party to the relevant arbitration agreement may invoke § 3 if the relevant state contract law allows him to enforce the agreement.
Souter filed a dissenting opinion, joined by Stevens and Chief Justice John Roberts.

The Court ruled [opinion, PDF] 8-1 in the consolidated cases of Burlington Northern and Santa Fe Railway Company v. United States [Cornell LII backgrounder] and Shell Oil Co. v. United States involving government reimbursement under the Comprehensive, Environmental, Response, Compensation and Liability Act (CERCLA) [text; EPA backgrounder] for remediation of hazardous waste sites. The companies were challenging decisions by the US Court of Appeals for the Ninth Circuit holding them jointly and severally liable for remediation. The Court reversed the decision below in an opinion by Stevens:
we conclude that the Court of Appeals erred by holding Shell liable as an arranger under CERCLA for the costs of remediating environmental contamination at the Arvin, California facility. Furthermore, we conclude that the District Court reasonably apportioned the Railroads’ share of the site remediation costs at 9%. The judgment is reversed...
Justice Ruth Bader Ginsburg filed a dissenting opinion.

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Senate judiciary chair expects confirmation of Souter replacement by October
Jaclyn Belczyk on May 4, 2009 8:54 AM ET

[JURIST] US Senate Judiciary Committee [official website] chairman Patrick Leahy (D-VT) [official website; JURIST news archive] said Sunday in an interview [transcript] with ABC that he hopes to have a replacement for retiring Supreme Court Justice David Souter [JURIST report] confirmed by the beginning of the Court's 2009 term in October. Leahy said, "It would be irresponsible if we didn't have somebody in place by the beginning of the October session." When asked whether he thought that President Barack Obama should nominate a woman, Leahy said:

I would like to see certainly more women on the court. Having only one woman on the Supreme Court does not reflect the makeup of the United States. I think we should have more women. We should have more minorities.

I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge...
Leahy also pledged to consult with both Democratic and Republican leadership to set a date for confirmation hearings as soon as possible after Obama announces his choice. Newly-declared Democrat Senator Arlen Specter (D-PA) [official website] also indicated that he would like to see a nominee from outside the judiciary during interviews Sunday with CBS [transcript, PDF] and NBC [transcript].

Rumors of Souter's retirement began to circulate late Thursday, and were confirmed by the end of the day Friday. Souter has submitted a letter of resignation [text, PDF], and the Supreme Court has issued a press release [text, DOC] confirming his retirement. The eight other justices also issued statements [text, DOC] about Souter's retirement. Obama interrupted a press briefing [text] Friday to speak about the impending retirement [JURIST report], saying he would, "seek somebody with a sharp and independent mind and a record of excellence and integrity." Souter, 69, was nominated to the Supreme Court by then-president George H.W. Bush and was seated in October 1990. He previously served on the US Court of Appeals for the First Circuit and the New Hampshire Supreme Court. Souter was viewed as one of the more liberal justices, often siding with Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer.

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

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