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Legal news from Monday, June 1, 2009

Khadr seeks dismissal of US military defense lawyers
Christian Ehret on June 1, 2009 3:35 PM ET

[JURIST] Canadian Guantanamo detainee Omar Khadr [DOD materials; JURIST news archive] Monday asked to have his US military lawyers dismissed [CBC report] for arguing and disagreeing among themselves. The disputes among the members of Khadr's US defense team arose from chief defense counsel Colonel Peter Masciola's efforts to dismiss Lieutenant Commander William Kuebler [JURIST news archive] as lead counsel for Khadr after Kuebler filed a formal complaint against Masciola alleging a conflict of interest. Although Khadr eventually agreed to keep Kuebler on the case for the time being, he maintained his desire to have Canadian lawyers Dennis Edney and Nathan Whitling, who were not present on Monday, represent him. Military judge Colonel Patrick Parrish said Monday that Khadr could meet with his Canadian lawyers before making a final decision about dismissing his US counsel. Kuebler continues to argue that Khadr should be returned to Canada [JURIST report]. Monday's hearing was the first military commission hearing to be held since President Barack Obama delayed [JURIST report] the military commission tribunals in January. He has since said he wants to revive the commissions [JURIST report] with additional due process protections.

In April, the Federal Court of Canada ruled [JURIST report] that Prime Minister Stephen Harper must advocate for Khadr's repatriation based on the Canadian Charter of Rights and Freedom [text]. Soon after the ruling, an official for the Canadian Department of Foreign Affairs [official website] confirmed [JURIST report] the government’s intention to appeal. After Masciola removed Kuebler [JURIST report] from the case, Parrish reinstated him [JURIST report], ruling that Masciola did not have the authority to remove counsel. Kuebler has long criticized Masciola's handling of the case and, in February, stated that he had prompted the investigation [JURIST report] of the defense team's ethics based on Masciola's leadership. Khadr has allegedly admitted to throwing a hand grenade [JURIST report] that killed a US soldier in Afghanistan, and was charged [JURIST report] in April 2007 with murder, attempted murder, conspiracy, providing material support for terrorism, and spying.

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Finland prosecutor charges Rwanda pastor with genocide
Andrew Morgan on June 1, 2009 2:34 PM ET

[JURIST] Finland's Office of the Prosecutor General [official website, in Finnish] on Monday charged [press release] former Rwandan pastor Francois Bazaramba with genocide and 15 associated murders. Bazaramba is accused of organizing and carrying out the killing of more than 5,000 civilians in the in the town of Nyakizu during the 1994 Rwandan genocide [HRW backgrounder; BBC backgrounder]. Bazaramba was taken into custody in Finland on suspicion of war crimes since 2007, after seeking asylum there in 2003. The Finnish government refused to extradite [press release] Bazaramba to Rwanda in February, saying that they were not convinced that he would receive a fair trial. Bazaramba faces life in prison under Finnish law, which allows the prosecution of war crimes committed outside of Finland under universal jurisdiction [AI backgrounder; JURIST commentary].

Several countries have prosecuted and convicted Rwandan war crimes suspects. Last week, Rwandan Hutu Desire Munyaneza [Trial Watch profile], the first person to be tried under Canada's Crimes Against Humanity and War Crimes Act [text, PDF], was convicted [JURIST report] by the Supreme Court of Quebec [official website] of seven counts of genocide, crimes against humanity, and war crimes. In March, a Dutch court sentenced [JURIST report] Rwandan Hutu Joseph Mpambara [Trial Watch profile] to 20 years in for killings committed when he was allegedly a member of the extremist Hutu militia Interahamwe [GlobalSecurity backgrounder]. In January, a court in the Rwandan capital of Kigali successfully prosecuted former justice minister Agnes Ntamabyariro, sentencing her to life in prison [JURIST report] for planning acts of genocide, distributing weapons, and arranging the assassination of then-Butare Province governor Jean Baptiste Habyarimana, who opposed the genocide.

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New US border crossing rules take effect
Christian Ehret on June 1, 2009 1:56 PM ET

[JURIST] The US Western Hemisphere Travel Initiative [official website; rule, PDF] went into effect Monday, heightening document requirements [text] for entering and re-entering the US by land or sea. The initiative requires all citizens of the US, Canada, Mexico, Bermuda, and Caribbean nations to have a passport or other form of approved documentation in order to enter or depart the US. The rules were promulgated under the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) [text; JURIST report] which required the US Department of Homeland Security (DHS) and the Department of State (DOS) [official websites] to develop and implement a plan to require travelers to present secure identification documents when entering or re-entering the US. There have been concerns about the ramifications the rules will have on tourism in the US and Canada, which traditionally have benefited from what had become known as the "world's longest undefended border". Tourism officials in the Canadian province of New Brunswick say that American tourism has declined [CBC report] in the region since the passport requirement was announced.

The air travel portion of the initiative went into effect in January 2007 and requires all travelers entering the US by air to present a passport or other secure travel document. The portion taking effect Monday covers land and sea travel and will complete the full implementation of the initiative. In the past, US citizens who entered the country by land or sea from within the Western Hemisphere, except from Cuba, have been exempt from passport requirements but were still required to show identification documents and orally declare their citizenship. The number of passport applications has increased since new border-crossing requirements were enacted as part of the IRTPA. In September, a group of Texans filed suit [JURIST report] against the DOS, alleging that they had been denied passports because they are of Mexican descent.

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General Motors files for bankruptcy in US court
Andrew Morgan on June 1, 2009 12:56 PM ET

[JURIST] US automaker General Motors (GM) [corporate website] filed [case materials] for Chapter 11 [text] bankruptcy protection Monday. The proceedings will be handled by Judge Robert Gerber of the US Bankruptcy Court for the Southern District of New York [official website], the court which is also overseeing the bankruptcy of rival automaker Chrysler Group [corporate website]. US President Barack Obama [official profile] addressed concerns that the federal government's large ownership stake in GM may hinder the company's recovery saying [transcript]:

What we are not doing - what I have no interest in doing - is running GM. GM will be run by a private board of directors and management team with a track record in American manufacturing that reflects a commitment to innovation and quality. They - and not the government - will call the shots and make the decisions about how to turn this company around. The federal government will refrain from exercising its rights as a shareholder in all but the most fundamental corporate decisions.
With its initial filing, GM said it has asked the court to approve measures [press release] that would "provide for a smooth transition to the New GM," including allowing the US and Canadian governments to back existing GM warranties, allowing for $33 billion in additional Debtor-in-Possession financing to continue corporate operations, and ensuring that current GM employees become "part of the New GM." GM President and CEO Fritz Henderson [professional profile], who assumed control in March, said in an open letter [text, PDF] that:
Today marks a defining moment in the reinvention of GM. In the face of an economic crisis that has caused enormous disruption in the auto industry, we have reached ground breaking agreements with the U.S. Treasury, the Canadian and Ontario governments, and the UAW and CAW unions, and we have the support of a substantial portion of GM’s bondholders. These agreements allow us to launch a leaner, quicker, more customer-focused and cost-competitive New GM.
A senior Obama administration official, speaking on a conference call with reporters [transcript], said that the "we do not expect [bankruptcy proceedings] to be as speedy as Chrysler's because GM is a far larger, far more complicated global company, but we do expect it to proceed, broadly speaking, along similar lines to the Chrysler one." The United Auto Workers (UAW) [official website] had ratified a settlement agreement [press release] with GM on Friday in an unsuccessful effort to meet the 60-day deadline for GM to restructure its debt announced [transcript] by Obama in March.

The other members of Detroit's "Big Three" automakers have also faced financial troubles recently. Chrysler filed for bankruptcy protection [case materials] in April after failing to negotiate the return of $6.9 billion in debt for $2 billion in cash with secured debt holders. Judge Arthur Gonzales on Monday approved [JURIST report] the sale of most of the assets currently held by Chrysler Group to Italian automaker Fiat S.p.A. [corporate websites]. Ford Motor Company [corporate website] is seeking to regain lost market share [WSJ report] while its domestic rivals are involved in bankruptcy proceedings.

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Supreme Court grants government delay in detainee photos appeal
Christian Ehret on June 1, 2009 12:16 PM ET

[JURIST] The US Supreme Court [official website] issued an order Monday allowing the government more time to appeal a ruling [JURIST report] mandating the release of photos allegedly depicting detainee abuse in Iraq and Afghanistan. The order, issued by Justice Ruth Bader Ginsburg [UPI report], follows a Department of Justice (DOJ) [official website] request [motion, PDF; JURIST report] last week to recall the mandate because "the Solicitor General has determined that the government will file a petition for a writ of certiorari in this case, absent intervening legislation." The order grants a 30-day delay to the government, extending the deadline to appeal from June 9 to July 9. Congress is currently considering legislation [S 1100 materials] that would exempt the disclosure of certain photographs under the Freedom of Information Act (FOIA) [text] in cases where the secretary of defense certifies that such disclosure would endanger US personnel. The proposed FOIA amendment was already agreed to by the Senate [Senate record, PDF] as an amendment to the Supplemental Appropriations Act [S 1054 materials, PDF] and would apply to any photograph taken between September 11, 2001 and January 22, 2009 that involves the treatment of those "engage[d], captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States." The new deadline for the government to appeal gives Congress more time to act.

Last week, former US Major General Antonio Taguba said that the photographs of detainee abuse at Abu Ghraib prison depict acts of rape and sexual assault [JURIST report]. The Pentagon has denied [Reuters report] the allegations. Earlier this month, US President Barack Obama decided to seek a delay [JURIST report] of the release of the photographs in question, contrary to a previous agreement by the DOJ to release them pursuant to a court order [order, PDF]. After Obama's decision to not release the photographs, the DOJ sent a letter [text, PDF] to district Judge Alvin Hellerstein saying that "the Government has decided to pursue further options regarding that decision, including, but not limited to the option of seeking certiorari." Last month, the DOJ had sent a letter [text, PDF] to Hellerstein saying that they would comply with his 2005 order to release 21 photos from Abu Ghraib. The original district court order resulted from a FOIA challenge [ACLU materials] brought by the American Civil Liberties Union [advocacy website] against the Department of Defense. The US Court of Appeals for the Second Circuit [official website] affirmed the order in April.

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Israel cabinet rejects loyalty oath propopsal
Andrew Morgan on June 1, 2009 12:06 PM ET

[JURIST] The legislative committee of the Israeli cabinet [official website] on Sunday rejected a bill that would make a declaration of allegiance to a "Jewish, Zionist and democratic" Israel a prerequisite to the issuance of a national identity card. The measure was proposed last week by Knesset [official website] member David Rotem of the Israel Beytenu [official websites] party, which was the only party to vote in favor of the bill [Haaretz report]. Israel Beytenu spokesman Tal Nahum criticized [Reuters report] the vote and said that the party would continue to pursue this and similar measures. Abe Foxman, director of the Anti-Defamation League [advocacy website], told the New York Jewish Week last week that the proposal was discriminatory [report], aimed at only the Arab minority.

Israel Beytenu, the nationalist party of Foreign Minister Avigdor Lieberman [official profile], recently proposed a series of controversial bills, including one that would criminalize anti-Israel statements [JURIST report] and another that would criminalize "Nakba," the practice of marking Israeli Independence Day as a day of mourning. The Association for Civil Rights in Israel (ACRI) [advocacy website] called the measures "draconian," saying [Jerusalem Post report] that they would diminish public discourse. Last week, the Knesset approved [JURIST report] 47-34 the preliminary reading of a bill that would punish public statements likely to "cause an act of hatred, scorn or disloyalty to the state" with one year in prison.

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Supreme Court rules mental capacity hearing does not violate double jeopardy
Andrew Morgan on June 1, 2009 10:26 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] issued opinions in two cases on Monday. In Bobby v. Bies [Cornell LII backgrounder; JURIST report], the Court ruled [opinion, PDF] unanimously that a post-conviction hearing to determine the mental competency of a capital defendant convicted before the Court's 2002 ruling in Atkins v. Virginia [opinion, PDF], which prohibits the execution of mentally retarded persons, does not violate the Double Jeopardy [Cornell LII backgrounder] clause. In so doing, the Court overruled the Sixth Circuit Court of Appeals, which ruled [opinion, PDF] that the Ohio Supreme Court [official website] had definitively decided the issue of Bies' competency, and therefore he was entitled to a life sentence under Atkins. Finding that the federal courts had "derailed" state court proceedings intended to determine the validity of Bies' claim under Atkins, the Court said that the Sixth Circuit erred in finding that Bies was entitled to life sentence:

At the time Bies was sentenced and on direct appeal, [Penry v. Lynaugh], not Atkins, was this Court’s guiding decision. Under Penry, no single mitigator or aggravator was determinative of the judgment. Instead, the dispositive issue, correctly comprehended by the Ohio courts, was whether "the aggravating circumstances outweigh[ed] the mitigating factors beyond a reasonable doubt."
Justice Ruth Bader-Ginsburg delivered the opinion of the Court.

The Court also ruled [opinion, PDF] 7-2 in CSX Transportation v. Hensley [docket] that the Tennessee Court of Appeals [official website] misapplied the Court's ruling in Norfolk & Western R. Co. v. Ayers [opinion text] in holding that an asbestosis sufferer may recover for pain and suffering related to fear of contracting lung cancer without specific jury instructions on the applicable standard. Finding that the trial court had inappropriately excluded jury instructions necessary to determine liability under the Federal Employers' Liability Act (FELA) [text], the Court said:
the fact that cancer claims could "evoke raw emotions" is a powerful reason to instruct the jury on the proper legal standard. Giving the instruction on this point is particularly important in the FELA context. That is because of the volume of pending asbestos claims and also because the nature of those claims enhances the danger that a jury, without proper instructions, could award emotional-distress damages based on slight evidence of a plaintiff’s fear of contracting cancer.
The majority's opinion was given per curiam, with Justices Ginsburg and John Paul filing separate dissents.

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Supreme Court to rule on business method patent case
Christian Ehret on June 1, 2009 10:12 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in Bilski v. Doll [docket; cert. petition, PDF] to review the scope of patentable subject matter. The Court will review a US Court of Appeals for the Federal Circuit [official website] en banc ruling [opinion, PDF; JURIST report] which affirmed a Board of Patent Appeals and Interferences [official website] rejection of the eligibility of a business method patent [Jones Day backgrounder] seeking protection for a method of hedging risks in commodities trading. While the Federal Circuit did not rule out business method patents altogether, they narrowly defined the "machine-or-transformation" test to be used in determining the eligibility of such patents under federal patent law [35 USC § 101 text]. The appeals court found that the patent in question failed this test because it was not tied to any machine and because there was no transformation of physical matter, affirming the lower court's holding that the transformation of "non-physical financial risks and legal liabilities of the commodity provider, the consumer, and the market participants" was not eligible subject matter. Additionally, the appeals court affirmed the finding that the process was only an abstract idea and did not produce a "useful, concrete and tangible result." Specifically, the Court will decide whether § 101 requires a process to be tied to a particular machine or apparatus, or transform a particular article into a different state in order to be patentable. The petitioners claim that the Federal Circuit's test to make this determination contradicts congressional intent [35 USC § 273 text] to provide patent protection to "method[s] of doing or conducting business" and effectively forecloses protection to many business methods.

The patentability of business methods is a controversial subject among practitioners. The Court's ruling could affect the validity of many business method patents including those involving financial services and software. The "machine-or-transformation" test in question was originally established by the Supreme Court in the 1972 case Gottschalk v. Benson [opinion text].

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Federal bankruptcy judge approves sale of Chrysler assets to Fiat
Andrew Morgan on June 1, 2009 8:33 AM ET

[JURIST] A federal bankruptcy judge on Sunday approved the sale of most of the assets currently held by Chrysler Group to Italian automaker Fiat S.p.A. [corporate websites]. Judge Arthur Gonzales of the US Bankruptcy Court for the Southern District of New York [official website] approved a bankruptcy plan that would transfer 55 percent of Chrysler to a United Auto Workers (UAW) [union website] retiree trust and 20 percent to Fiat, with the US and Canadian governments each retaining a minority share. The UAW trust would take over responsibility [agreement, PDF] for retiree health care in exchange for a larger ownership stake in the restructured Chrysler. A group of Indiana pension funds that acquired $42.5 million in secured Chrysler debt last year said they would appeal [WP report] the decision because it is unfairly biased toward unsecured creditors like UAW.

Chrysler filed for bankruptcy protection [case materials] in April under Chapter 11 [text] of the US Bankruptcy Code after failing to negotiate the return of $6.9 billion in debt for $2 billion in cash with secured debt holders. The other members of Detroit's "Big Three" automakers have also faced financial troubles recently. General Motors [corporate website] filed [JURIST report] for bankruptcy [petition, PDF] on Monday. Ford Motor Company [corporate website] is seeking to regain lost market share [WSJ report] while its domestic rivals are involved in bankruptcy proceedings.

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Nevada legislature passes same-sex partnership law overriding governor veto
Christian Ehret on June 1, 2009 8:33 AM ET

[JURIST] The Nevada Assembly [official website] on Sunday approved a same-sex partnership law [SB 283, PDF; materials], overriding the governor's veto [press release, PDF] by a 28-14 vote [roll call vote]. The measure, passed in the state senate [roll call vote] a day earlier by the requisite two-thirds vote, seeks to give same-sex partners the same rights, protections, and benefits as are given to spouses. The rights afforded to domestic partners include property rights, mutual responsibility for debts, rights with respect to children, and the right to seek financial support if the partnership ends. While the legislation specifies that a legal union under the law does not constitute a marriage under the Nevada Constitution [text], the law provides legal protection for same-sex marriages or unions from other states. Governor Jim Gibbons [official website] vetoed the bill on the grounds that the voters of Nevada previously passed a constitutional amendment specifying that the rights of marriage should only apply to married couples, reasoning that only the voters should determine if domestic partners are granted such rights. Gibbons also reasoned that the privileges sought by the bill could be achieved with private contracts.

Recently, the California Supreme Court [official website] rejected constitutional challenges [JURIST report] to Proposition 8, which amended the California Constitution to prohibit same-sex marriages. Several other states have recently taken up the issue of same-sex marriage. In May, the New Hampshire House of Representatives rejected [JURIST report] a same-sex marriage bill after it was amended to gain the governor's approval. The New York State Assembly passed a bill [JURIST report] that would allow same-sex marriages to be performed in the state. Maine became the fifth state to allow same-sex marriage [JURIST report] when Governor John Baldacci [official website] signed a same-sex marriage bill into law. In April, Vermont became the first state to legalize same-sex marriage through a vote of the legislature, joining Massachusetts, Connecticut, and Iowa [JURIST reports] as the other states that allow same-sex marriage.

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

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