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Legal news from Tuesday, June 2, 2009

China court sentences three executives for water pollution
Andrew Morgan on June 2, 2009 3:26 PM ET

[JURIST] A court in China's Yunnan Province [official website, in Mandarin] on Tuesday sentenced three executives from a Chinese chemical company for polluting Yangzonghai Lake [Greenlaw backgrounder]. Chengjiang Jinye Industry and Trade Company chairman Li Dahong was sentenced to four years in jail [Xinhua report] and fined 300,000 yuan ($44,000 USD) by the Chengjiang County Basic Level Court, while general manager Li Yaohong and production department chief Jin Dadong were each sentenced to three years and fined 150,000 yuan ($22,000 USD). The company itself was fined 16 million yuan ($2.3 million USD) after the lake was found to be heavily contaminated [China Daily report] with industrial chemicals, including arsenic, traced to Jinye's fertilizer plants.

In October, the executives were arrested [Xinhua report], and 12 government officials were fired [China Daily report], as a result of the closure of a water plant which supplied water to 26,000 people. Last February, China's National People's Congress [official website, in Mandarin] passed an enhanced water pollution law [JURIST report] that increased penalties [Xinhua report] for company officials. China's has 22 percent of the world's population, but holds only 8 percent of the world's water [TIME Asia report], making water pollution a growing concern.

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Iraq court convicts man in kidnapping and death of UK aid worker
Christian Ehret on June 2, 2009 2:14 PM ET

[JURIST] An Iraqi court Tuesday convicted and sentenced an Iraqi man to life in prison for the 2004 kidnapping and killing of British aid worker Margaret Hassan [Times Online obituary]. Ali Lutfi al-Rawi, allegedly a member of a gang that kidnapped and killed Hassan in Baghdad, pleaded not guilty to the charges. After a hearing in Baghdad's Central Criminal Court, al-Rawi was found guilty [Times Online report] and sentenced to life in prison. Al-Rawi was arrested last year after attempting to extort money from the British Embassy in Baghdad for information regarding the location of Hassan's body.

Hassan, who had Irish, British and Iraqi citizenship, was the director of the Iraq office of Care International [advocacy group], where she worked with combating public health issues. After being kidnapped, a videotape surfaced [JURIST report] that appeared to show her being shot to death. Her body has not been found. In 2006, Mustafa Salman was charged, convicted and sentenced to life in prison for aiding and abetting [JURIST report] Hassan's kidnappers after her personal effects were found in his home.

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Pakistan court releases leader of group suspected in Mumbai terror attack
Andrew Morgan on June 2, 2009 1:36 PM ET

[JURIST] A Pakistani court on Tuesday ended the house arrest of the founder of Lashkar-e-Taiba (LeT) [CFR backgrounder], the Pakistani militant group suspected of carrying out the November 2008 Mumbai terror attack [BBC backgrounder; JURIST news archive]. The Lahore High Court said that there was insufficient evidence linking Hafiz Muhammad Saeed [Global Jihad backgrounder] or his charity group Jamaat-ud-Dawa (JuD), to the attacks by 10 gunmen on India's financial center. Pakistan and others have accused [DOS backgrounder, PDF] JuD of being a front organization for LeT, although Saeed maintains [Guardian report] that JuD is purely a social welfare group. Both groups have been listed as terrorist organizations by the US Department of State [DOS list] and the UN [Resolution 1267 list]. Spokesman for India's Ministry of External Affairs [official website] Vishnu Prakash expressed India's dissappointment [India Today report] with the ruling, saying that the release did not reflect favorably on Pakistan's commitment to fighting terrorist groups.

Last month, Pakistani citizen Mohammed Ajmal Kasab pleaded not guilty [JURIST report] to involvement with the Mumbai attacks. Two Indian defendants linked to LeT also pleaded not guilty [AFP report] to conspiracy charges related to the charges against Kasab. In February, Pakistani officials conceded [JURIST report] that the attacks were partially planned in their country. Pakistan also stated that the perpetrators traveled by ship [NYT report] from southern Pakistan to Mumbai, where they launched the attack from inflatable boats using outboard engines purchased in Karachi, Pakistan. One scholar suggested that an international tribunal be formed [JURIST op-ed] to prosecute persons involved in Mumbai attacks in order to avoid further complications to the already unstable relationship between Pakistan and India. The attacks in Mumbai, which claimed at least 170 lives, were carried out at ten locations across the city including the landmark Taj Mahal Palace hotel.

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UN human rights investigators arrive in Gaza
Andrew Morgan on June 2, 2009 12:51 PM ET

[JURIST] A team of investigators from the UN Human Rights Council [official website] arrived in Gaza Monday to begin examining alleged violations of international human rights law during December and January's fighting between Israel and Hamas. The team is headed by former South African Constitutional Court [official profile] judge Richard Goldstone, who was also the chief prosecutor at the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) [official websites]. The team entered Gaza from Egypt through the Rafah crossing after Israel announced [JURIST report] that it would not cooperate with the investigation because it doubted the mission's objectivity. Israeli Defense Minister Ehud Barak [official profile] repeated the position [UPI report] Tuesday in a meeting with UN Secretary-General Ban Ki-Moon [official profile].

Goldstone was appointed to head the investigation [JURIST report] in April, amongst strong criticism [JURIST report] of the investigation from Israel. The probe follows a previous report [text, PDF; JURIST report], authored by UN Special Rapporteur Richard Falk [appointment release], which criticized Israel for failing to take adequate precautions to distinguish between civilians and combatants in their offensives in the region. Both Israel and the US criticized [DOS briefing] the report, calling the rapporteur's views "anything but fair." In April, an internal Israeli military investigation found that war crimes had not been committed [JURIST report] in the offensive despite individual reports by Israeli soldiers [Haaretz report]. Israel has already disputed [JURIST report] a previous report to the UNHRC that accused it of human rights violations.

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Former Enron executive pleads guilty to falsifying records
Christian Ehret on June 2, 2009 12:26 PM ET

[JURIST] Former Enron [JURIST news archive] executive Kevin Howard [DOJ materials] pleaded guilty [plea agreement, PDF] Monday to falsifying books and records in relation to Enron's broadband service. The plea resulted from accusations [complaint text] that Howard indirectly caused the false recording of revenue earnings for Enron by failing to disclose material facts to outside accountant Arthur Andersen and Oregon video-on-demand company nCube. Prosecutors alleged that this conduct resulted in manufactured earnings for the failed broadband division. The deal, called "Project Braveheart," was designed to monetize a portion of future earnings and cash flow from an agreement with Blockbuster. Specifically, Howard's guilty plea is in regards to:

his participation in the "Braveheart" transaction, which closed on December 22, 2000, knowingly and willfully directly or indirectly caused Enron's Form 10K for the year-ending 2000 to be falsified, in that the 10K did not accurately and fairly reflect, in reasonable detail, the transactions and dispositions of the assets of Enron, in violation of [federal securities law].

Although the violation usually carries a sentence of up to ten years imprisonment and a fine, the plea agrees to a sentence between four and 12 months of "home confinement, probation, or some combination thereof."

In March, a district court judge issued an order [JURIST report] setting a July 30 date for the resentencing of former Enron Chief Executive Officer Jeffrey Skilling [JURIST news archive] and setting up a system for victims to share their accounts with the court. Last year, the US Court of Appeals for the Fifth Circuit [official website] upheld [opinion, PDF] a district court ruling to vacate the conviction of Howard based on an earlier Fifth Circuit opinion that overturned separate Enron convictions on the ground that the government's honest services fraud theory was flawed.

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Federal court stays habeas proceedings for Bagram detainees
Andrew Morgan on June 2, 2009 10:32 AM ET

[JURIST] A federal court on Monday stayed habeas corpus challenges [opinion, PDF] brought by three detainees held at Bagram Air Base [official website; GlobalSecurity backgrounder] pending appeal. Judge John Bates of the US District Court for the District of Columbia [official website] granted a motion [text, PDF ; JURIST report] filed in April by the government asking that he certify and suspend his earlier ruling [opinion, PDF; JURIST report], which allowed the challenges to proceed. The certification allows the Department of Justice (DOJ) to seek interlocutory appeal from the US Court of Appeals for the DC Circuit [official website], giving them the opportunity to decide whether the detainees, Fadi Al Maqaleh, Amin Al Bakri, and Redha Al Najar, may invoke the Constitution's Suspension Clause [text]. Calling the issue of whether US courts have jurisdiction over habeas claims by detainees "an extremely serious one on which courts could reasonable differ," Bates said that:

although petitioners argue convincingly that they will suffer the quintessential substantial, irreparable harm - continued incarceration - should these cases be stayed, respondents have an equally convincing argument that the United States will suffer irreparable harms to vital national interests should these cases proceed during the pendency of appeal.

In his April order, Bates applied a multi-factor test developed by the US Supreme Court in its decision in Boumediene v. Bush [opinion, PDF; JURIST report] for the allowing the suspension of habeas corpus to hold that the three detainees were entitled to proceed with their habeas challenges. A fourth petition, filed by Afghan national Haji Wazir, was denied due to "practical obstacles" presented by release into an "active theater of war."

The DC District Court has been the venue for many habeas challenges, especially for Guantanamo detainees suspected of involvement with terrorism. In April, DC Circuit Judge Ellen Huvelle ordered [text, PDF] that Afghan Guantanamo Bay [JURIST news archive] detainee Mohammed Jawad [ACLU materials; JURIST news archive], detained since he was a teenager, be allowed to challenge his detention in federal courts without delay. Last month, Jawad's military lawyers petitioned [JURIST report] the Supreme Court of Afghanistan [official website] to demand his release from the facility. Also last month, former Guantanamo detainee Lakhdar Boumediene [BBC profile], whose Supreme Court challenge secured detainees' ability to challenge their detention in federal court, was released and sent to France [DOJ press release; JURIST report].

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Iraq PM warned US not to release detainee photos: report
Christian Ehret on June 2, 2009 10:27 AM ET

[JURIST] The decision to not release photographs [JURIST report] allegedly depicting detainee abuse followed warnings from Iraqi Prime Minister Nouri al-Maliki [official website, in Arabic; BBC profile] that releasing the photos would cause more violence and could delay the withdrawal of US troops from Iraq, according to a McClatchy report [text] published Monday. According to the report, Maliki warned that the public would not differentiate between new and old photographs and may try to oust US troops from the country. A referendum is supposed to be held before the end of July to discuss the Status of Forces Agreement (SOFA) [text, PDF], which sets a 2011 deadline for the withdrawal of US troops. If rejected, the US would have to withdraw their troops earlier than planned. In a letter [text, PDF] to President Barack Obama, the American Civil Liberties Union (ACLU) [advocacy website] maintained that suppressing the photos to prevent public outrage is "inconsistent with democratic principles." The ACLU recommends that the release of the photos be accompanied by a reaffirmation to the world that the US "repudiates such barbaric behavior and is committed to dismantling the culture that allowed it to occur."

On Monday, the US Supreme Court [official website] issued an order [JURIST report] allowing the government more time to appeal a ruling [order, PDF] mandating the release of photos allegedly depicting detainee abuse in Iraq and Afghanistan. The order followed a US Department of Justice (DOJ) [official website] request to recall the mandate requiring the release of the photos to afford the agency more time to file a petition for certiorari. The delay would also allow Congress more time to pass legislation [S 1100 materials] aimed at exempting the disclosure of certain photographs under the Freedom of Information Act (FOIA) [text] where such release would endanger US personnel. Last week, the Pentagon denied [Reuters report] allegations [JURIST report] made by former US Major General Antonio Taguba that the photographs of detainee abuse at Abu Ghraib prison depict acts of rape and sexual assault. The original district court order mandating the release of the photos resulted from a FOIA challenge [ACLU materials] brought by the ACLU against the Department of Defense (DOD) [official website]. The US Court of Appeals for the Second Circuit [official website] affirmed the order in April.

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DOJ increases federal protection at clinics after abortion doctor killing
Christian Ehret on June 2, 2009 8:58 AM ET

[JURIST] US Attorney General Eric Holder [official website] said that appropriate steps would be taken [statement] to help prevent acts of violence related to the Sunday shooting of abortion doctor George Tiller [BBC profile]. Holder has enlisted the US Marshal Service [official website] to offer protection to other at-risk people and facilities in the country. Additionally, Holder maintained that the Department of Justice (DOJ) [official website] would work to bring the killer to justice. On Monday, a suspect was arrested [AP report] in the shooting although charges have not yet been filed. Tiller was shot Sunday in the foyer of a church in Wichita, Kansas where he served as an usher. Holder addressed his commitment to the investigation:

The murder of Doctor George Tiller is an abhorrent act of violence, and his family is in our thoughts and prayers at this tragic moment. Federal law enforcement is coordinating with local law enforcement officials in Kansas on the investigation of this crime, and I have directed the United States Marshals Service to offer protection to other appropriate people and facilities around the nation. The Department of Justice will work to bring the perpetrator of this crime to justice. As a precautionary measure, we will also take appropriate steps to help prevent any related acts of violence from occurring.

A US Marshals spokesman confirmed [AP report] the intent to increase protection to prevent related acts of violence, although it is unclear who or what specifically will receive protection.

Tiller, who performed late-term abortions at his clinic, has had his life endangered in the past. His clinic was bombed in 1985 and he was shot twice in 1993. He last received protection from the Marshals service in 2001. In January, President Barack Obama repealed [JURIST report] a Reagan-era directive that banned federal funding for international family planning programs that provide information regarding abortion.

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California court dismisses challenge to school gender identity discrimination law
Andrew Morgan on June 2, 2009 8:32 AM ET

[JURIST] A California court on Monday dismissed [opinion, PDF] a lawsuit challenging a state law that prohibits discrimination based on gender orientation or identity in public schools. Judge Shelleyanne Chang of the Sacramento County Superior Court [official website] said that the challenge to California Education Code sections 220 and 210.7 [text] brought by Advocates for Faith and Freedom [advocacy website] failed to state a claim on which relief could be granted. The plaintiffs alleged [complaint, PDF] that two students in California public schools had suffered an invasion of privacy and threat to their safety as a result of the addition of gender identity to the meaning of "gender" used in the school system's anti-discrimination measures. Finding that the challenge should be filed against the school district and not the state government, Chang said that the:

plaintiffs do not allege in their complaint that [a male student] either observed or was observed by the "biologically female student" in the locker room, or that [the student] was even aware of the other student's alleged presence in the locker room. Plaintiffs merely allege that [the student] "was present in the locker room while the female student was changing." ... Thus, the pleading is inadequate to allege any invasion of privacy, let alone a "serious" one.

Chang also found that the challenge on personal safety grounds should also be dismissed because it was "conclusory" and that "it is unclear to whose safety plaintiffs are referring."

The changes in question came as a part of legislation [SB 777 materials], introduced in the California State Senate in February 2007 by then-senator Sheila Kuehl (D-Santa Monica) [personal website]. The measure passed in the House [AB 394 materials] and in the Senate in September 2007, and was signed by the governor [California Chronicle report] in October. Advocates for Faith and Freedom filed the suit challenging the state's definition of gender for discrimination purposes in April 2008, five months after the law went into effect.

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Russia court rejects Khodorkovsky appeals
Eszter Bardi on June 2, 2009 8:13 AM ET

[JURIST] The Moscow City Court [official backgrounder] on Monday rejected the appeals of former Yukos [JURIST news archive] chief executive Mikhail Khodorkovsky [defense website; JURIST news archive] and his former business partner Platon Lebedev [defense website]. The court dismissed all appeals [RIA Novosti report] from the preliminary hearings concerning the second set of embezzlement, oil theft, and money laundering charges against Khodorkovsky and Lebedev except for the appeal to keep the two men in custody. The lawyer handling the appeal has stated that Khodorkovsky and Lebedev are victims of politically-motivated detention and that the petitioners intend to appeal Monday's ruling in the European Court of Human Rights (ECHR) [official website].

In April, Moscow's Khamovniki Borough Court refused [RIA Novosti report] to refer the case back to prosecutors after the former business partners both pleaded not guilty [JURIST report] to the additional charges of money laundering and embezzlement. Their lawyers also challenged [RIA Novosti report] the charges on grounds of insufficient evidence and technical errors. Khodorkovsky and Lebedev were initially convicted and jailed [JURIST report] in 2005 on fraud and tax evasion charges stemming from an alleged attempt to embezzle and strip Yukos of valuable assets. They are currently serving an eight-year prison sentence and could face up to 20 additional years if convicted on the current charges.

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Federal judge rules Guantanamo documents must be made public
Jay Carmella on June 2, 2009 6:59 AM ET

[JURIST] A judge for the US District Court for the District of Columbia [official website] denied [opinion, PDF] the government's motion on Monday to keep sealed unclassified judicial records connected to the imprisonment of Guantanamo Bay [JURIST news archive] detainees. Judge Thomas Hogan ruled that the public has both First Amendment and common law rights to access the unclassified documents. The court stated that the government must either produce the unclassified factual returns or seek protected status for specific information it is attempting to withhold for each of the 107 petitioners. Hogan wrote:

Accordingly, the government's motion is denied without prejudice. On or before July 29, 2009, for each petitioner in the above-captioned cases, the government is directed to either (i) publicly file a declassified or unclassified factual return or (ii) file under seal with the petitioner’s counsel and the appropriate Merits Judge an unclassified factual return highlighting with a colored marker the exact words or lines the government seeks to be deemed protected, as well as a memorandum explaining why each word or line should be protected.
Lawyers for the detainees and news organizations had argued [Reuters report] that the public had a constitutional right to the documents.

The documents support the government's case for the continued imprisonment of the detainees. Last month, FBI Director Robert Mueller [official profile] told the US House Judiciary Committee that the transfer of Guantanamo Bay detainees to the US could pose a threat to national security, even if they remain in maximum security facilities, a claim which US President Barack Obama denies [JURIST reports]. In April, US Attorney General Eric Holder [official profile] testified that he was willing to release as much information as possible [JURIST report] in regards to interrogation techniques used on Guantanamo Bay detainees.

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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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