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Legal news from Wednesday, June 3, 2009

UN rights official urges DR Congo to prosecute persons harming aid workers
Andrew Morgan on June 3, 2009 3:12 PM ET

[JURIST] A UN human rights expert on Wednesday called on [press release] the government of the Democratic Republic of the Congo (DRC) [JURIST news archive] to do more to protect human rights workers in the country, and to prosecute those who harm them. The Special Rapporteur on the situation of human rights defenders Margaret Sekaggya [official profile] issued a list of suggested improvements for the DRC government and the UN Organization Mission in DR Congo (MONUC) [official website], including taking concrete steps to legitimize the work of human rights defenders, translating the Declaration on Human Rights Defenders [text, PDF] into local languages, and fully investigating and prosecuting offenses against human rights workers. Sekaggya said that:

Human rights defenders ... face illegitimate restrictions of their right to core freedoms, i.e. freedoms of opinion and expression, peaceful assembly and association. Defenders, in particular journalists, who report on human rights abuses committed by State and non-State actors are killed, threatened, tortured or arbitrarily arrested and their offices are raided. The media are sometimes suspended, and journalists often censor themselves in fear of reprisals.

Sekaggya also urged the Congolese National Assembly to pass a draft law establishing a human rights commission, which was has already been approved by the Senate.

In January, UN High Commissioner for Human Rights Navi Pillay [official profile; JURIST news archive] also urged participants in the DRC conflict, including Ugandan rebel group the Lord's Resistance Army (LRA) [BBC backgrounder; JURIST news archive], to respect human rights and international law [UN News Centre report]. ICC chief prosecutor Luis Moreno-Ocampo [official profile; JURIST news archive] announced last May the launch of a new investigation [JURIST report] against LRA leaders, including Joseph Kony [BBC profile]. Moreno-Ocampo maintained that arrest warrants issued by the ICC for LRA leaders remain in effect [JURIST report], despite requests from Uganda that they be withdrawn. The UN Human Rights Council [official website] adopted a resolution [text, DOC; JURIST report] in December condemning human rights violations in the DRC.

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Ohio implements new lethal injection protocol in execution
Abigail Salisbury on June 3, 2009 2:16 PM ET

[JURIST] Ohio corrections officials executed convicted murderer Daniel Wilson on Wednesday morning, marking the state's first use of a new lethal injection method termed "set-to-die." The procedure was announced in May, and requires officials to shake and call out to the prisoner [Plain Dealer report] after a sedative has been administered. A second dose of the sedative can then be administered, if necessary. Wilson was sentenced to death in 1992 after being found guilty of kidnapping a woman and burning her alive in the trunk of a car, and the Ohio Parole Board voted unanimously [clemency report, PDF] to deny clemency to Wilson in April. His execution [Reuters report] is said to have proceeded without any problems.

A de facto national moratorium [JURIST report] on the death penalty ended last year when the US Supreme Court ruled in Baze v. Rees [JURIST report] that the three-drug lethal injection sequence [DPIC backgrounder] used in most states does not violate the Constitution. Last April, anesthesiologists presented conflicting testimony [JURIST report] during court hearings held to determine whether Ohio's lethal injection [DPIC backgrounder] protocol at the time complied with the US Constitution and with Ohio's requirement that executions be carried out "in a professional, humane, sensitive and dignified manner." In 2007, the American Bar Association's death penalty assessment team called for a temporary halt on Ohio executions [ABA materials; JURIST report] on due process grounds. The previous year, Ohio's execution protocol had come under heavy criticism after staff had difficulty administering the drugs and an inmate awakened during the procedure, but the US Court of Appeals for the Sixth Circuit rejected a lawsuit [JURIST report] challenging Ohio's lethal injection practices.

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Canada corrections investigator reports prisons are overcrowded
Christian Ehret on June 3, 2009 1:01 PM ET

[JURIST] Canadian federal correctional investigator Howard Sapers [official profile] said Tuesday that the country's prison system is at full capacity [transcript, DOC] and is unable to handle many new prisoners without expanding. Sapers was testifying [Toronto Star report] before the House of Commons Committee on Public Safety and National Security [official website]. According to Sapers, prison overcrowding is partly due to a lack of community support for the mentally ill following the closure of residential institutions. Sapers expressed concern that a "tough-on-crime" agenda [text] advocated by Prime Minister Stephen Harper [official website] could result in an influx of prisoners, causing dangerous conditions for inmates and staff. The increased Canadian prison population has already impeded the completion of rehabilitation programs for many offenders due to delays and facility transfers. Public Safety Minister Peter Van Loan [official profile] agreed that the prison system will need to be expanded following heightened anti-crime measures but maintained that such policy changes are not the main cause of an increasing inmate population.

The report follows the recent consideration of legislation [C-15 text] introduced by the Conservative Party that aims at enacting mandatory minimum sentences for drug offenses. Overcrowded prisons have become a problem in other countries as well. In the US, federal judges tentatively ruled [JURIST report] in Februay that California must reduce their prison population to relieve overcrowding that resulted in inadequate mental and physical health care for inmates. The judges found that a release order was the only appropriate remedy [18 USC § 3626] for the unconstitutional prison conditions. In October, an Arizona federal court ruled [JURIST report] that overcrowded and unhygienic conditions in Maricopa County correctional facilities violated the inmates' constitutional rights, ordering the country sheriff to take appropriate steps to resolve the conditions. In 2007, the UK Ministry of Justice gave authority [JURIST report] to prison governors to grant early release to inmates to relieve overcrowded prisons throughout England and Wales.

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Yemeni Guantanamo detainee dies in apparent suicide
Christian Ehret on June 3, 2009 10:56 AM ET

[JURIST] A Yemeni Guantanamo Bay [JURIST news archive] detainee has been pronounced dead by military officials who believe that he committed suicide, according to Wednesday reports. Muhammad Ahmad Abdallah Salih, also known as al Hanashi, was accused [BBC report] of fighting with the Taliban in Afghanistan. The military maintained that measures were taken to revive al Hanashi after he was found unresponsive in his cell. The American Civil Liberties Union (ACLU) [advocacy website] on Wednesday called for [press release] a "full and transparent investigation" into the apparent suicide. Suggesting an immediate and independent investigation into the death and Guantanamo conditions, ACLU lawyer Ben Wizner said that:

Tragic deaths like this one have become all too common in a system that locks up detainees indefinitely without charge or trial.

There is no room for a system of indefinite detention without charge or trial under our Constitution. Detainees against whom there is legitimate evidence should be tried in our federal courts – not in the reconstituted military commissions now being proposed. Those against whom there is no legitimate evidence must not be given a de-facto life sentence by being locked up forever.

The ACLU along with Amnesty International, Human Rights First and Human Rights Watch [advocacy websites] sent a letter [text, PDF] to President Barack Obama in January asking for full access to the detention facility [JURIST report] to review the conditions and to offer "concrete recommendations on how to improve conditions of confinement in order to comply with relevant national and international standards." Also in January, former US defense secretary Donald Rumsfeld and many other military officers and personnel were sued [JURIST report; complaint, PDF] for the wrongful deaths of two former Guantanamo detainees who committed suicide. Military officials stated that the detainees, including one whose family did not join the suit, hung themselves with nooses made from sheets and clothes in pursuit of martyrdom [JURIST report]. The three had participated in hunger strikes and were among those detainees who had been force-fed [JURIST report].

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Madagascar ex-president sentenced in corruption case
Andrew Morgan on June 3, 2009 9:46 AM ET

[JURIST] A court in Madagascar on Wednesday convicted former president Marc Ravalomanana [BBC report] of misusing state funds by purchasing a $60 million presidential jet. Justice Minister in the High Authority of the Transition (HAT) [official websites, in French] transitional government Christine Razanamahasoa announced the decision [Reuters report], saying that the court sentenced Ravalomanana in absentia to four years in jail and ordered him to pay a $70 million fine. A spokesman for Ravalomanana said that the verdict would hinder negotiations aimed at resolving the island's political crisis. Ravalomanana is currently living in exile in South Africa while he seeks international support [AFP report] for a return to Madagascar.

Ravalomanana stepped down as president in March, passing control of the government to the military after months of violence in hopes it would run the nation under a military directorate. The military subsequently passed power to Andry Rajoelina [official profile, in French], a former mayor of Madagascar's capital city of Antananarivo who had led protests against Ravalomanana's government. Although Madagascar's constitution [text, PDF] requires that the president be at least 40 years of age, the High Constitutional Court [official website] in March approved [JURIST report] Rajoelina's presidency.

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Convicted US federal judge submits resignation effective in one year
Andrew Morgan on June 3, 2009 8:44 AM ET

[JURIST] Convicted US district court judge Samuel Kent [official profile] on Tuesday submitted his letter of resignation to President Barack Obama effective June 2010, after pleading guilty [JURIST report] to obstruction of justice [18 USC § 1512(c)(2) text] charges in connection with the alleged sexual harassment of his secretary and former case manager. The delayed resignation would allow Kent to collect his full current salary of $174,000 and full health benefits until next year, at which point he would not receive any continuing benefits or pension. Representative Lamar Smith (R-TX) [official website], ranking minority member of the US House Judiciary Committee [official website], told reporters that the committee would move forward [Houston Chronicle report] with impeachment proceedings, scheduled to begin Wednesday [hearing calendar], with the goal of removing Kent from office before his resignation becomes effective. A disciplinary panel from the Fifth Circuit has urged [certification letter, PDF; JURIST report] the committee to impeach Kent promptly.

In February, Kent pleaded guilty to lying to a judicial panel [Fifth Circuit materials] investigating sexual harassment allegations made by his former case manager and legal secretary. He was sentenced [JURIST report] in May to 33 months in prison, and ordered to pay a $1,000 fine and $6,500 in restitution as part of his plea agreement [text, PDF]. In 2007, the American Bar Association (ABA) [professional association] adopted new policies reforming the Model Code of Judicial Conduct [JURIST report], which for the first time included prohibitions against sexual harassment, although some advocacy groups believe these changes do not go far enough [AP report].

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Seventh Circuit declines to apply Second Amendment to state regulations
Christian Ehret on June 3, 2009 8:21 AM ET

[JURIST] The US Court of Appeals for the Seventh Circuit [official website] on Tuesday upheld [opinion, PDF] a ban on handguns in two Illinois municipalities. The panel of judges affirmed the district court ruling [opinion, PDF] that the incorporation of the Second Amendment [JURIST news archive] into the Bill of Rights as it is applied to the states is a question for the Supreme Court [official website] rather than a court of appeals. The bans, enacted by the Illinois municipalities of Chicago and Oak Park [ordinances, PDF], were challenged by the National Rifle Association (NRA) [advocacy website] on privileges and immunities grounds. As petitioners, the NRA contended that the Supreme Court's decision in the Slaughter-House Cases [opinion, PDF], which held that the privileges and immunities clause does not apply the entire Bill of Rights to the states, was wrongly decided. Additionally, the NRA argued that second amendment rights should be applied to the states through "selective incorporation," where portions of the bill of rights are selectively applied to the states by courts. The NRA maintained that the case is controlled by the Supreme Court decision in District of Columbia v. Heller [opinion, PDF], where the Court held that the second amendment entitles people to keep handguns at home for self-protection. The court rejected this argument, reasoning that Heller is not controlling law over this matter because it dealt specifically with laws promulgated under federal authority whereas the ordinances in question were enacted by local municipalities. The court addressed the incorporation of the Bill of Rights to the states and principles of federalism, saying:

Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a
federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

The US Court of Appeals for the Second Circuit [official website] in January issued a similar ruling [opinion, PDF], in which Supreme Court nominee Sonia Sotomayor [WH profile] joined the panel, holding that existing Second Amendment precedent only applied to restrictions at the federal level.

Heller marked the first occasion that the Supreme Court directly addressed the Second Amendment since 1939's United States v. Miller [opinion text]. Since Heller was decided, challenges to firearms restrictions have become increasingly common. In April, the US Court of Appeals for the Ninth Circuit [official website] applied [opinion, PDF] the Second Amendment to its jurisdiction. The NRA asked the Seventh Circuit to follow the Ninth Circuit's ruling which held existing precedent as dated and obsolete. In March, a district court granted a preliminary injunction [JURIST report] against a federal rule that permits the possession of "concealed, loaded and operable" hand guns in national parks and wildlife refuges in accordance with state laws.

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DOJ rejects Georgia voter verification requirements
Eszter Bardi on June 3, 2009 8:18 AM ET

[JURIST] The US Department of Justice (DOJ) [official website] has rejected Georgia's system of voter citizenship verification by way of a Social Security and driver's license database. In a letter [text, PDF] released Monday, Acting Assistant Attorney General Loretta King told Georgia Attorney General Thurbert Baker [official profile] that the proposed changes are discriminatory. Referring to Section 5 of the Voting Rights Act of 1965 [text; DOJ backgrounder], King wrote:

We have carefully considered the information you have provided, as well as information from other interested parties. Under Section 5, the Attorney General must determine whether the submitting authority has met its burden of showing that the proposed change "neither has the purpose nor will have the effect" of denying or abridging the right to vote on account of race, color or membership in a language minority group. As discussed further below, I cannot conclude that the state has sustained its burden in this instance. Therefore, based on the information available to us, I must object to the voter verification program, on behalf of the Attorney General.

Georgia sought the DOJ's decision after a federal court enjoined [order, PDF] the voting practices in October in the ongoing Morales v. Handel [OSU backgrounder] election litigation.

In January, the US Court of Appeals for the Eleventh Circuit [official website] upheld [opinion, PDF; JURIST report] a separate Georgia law that requires voters to present government-issued photo identification at the polls in order to vote. The suit [complaint, PDF] was filed by two elderly voters in Georgia, the National Association for the Advancement of Colored People (NAACP) [advocacy website], and other civil rights groups that argued that the legislation makes it difficult for minorities, the elderly, and the impoverished to participate in elections. Georgia's controversial voter ID law [text; JURIST news archive] has been enforced [JURIST report] since the Georgia's September 18 Special Elections in September 2008.

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Canada bill would allow terror victims to sue perpetrators in Canadian courts
Brian Jackson on June 3, 2009 7:39 AM ET

[JURIST] Canadian Public Safety Minister Peter Van Loan [official profile] on Tuesday announced [press release] the introduction of legislation [C-35 text; materials] to the House of Commons that would allow victims of terrorism to sue perpetrators in Canadian courts. The Justice for Victims of Terrorism Act [Public Safety backgrounder] would allow any individuals who can prove a link between an act of terrorism and Canada to sue in a Canadian court, stripping immunity from foreign states that can be proven to support terrorism. If passed, the law would be retroactive to 1985 [UPI report], meaning Canadian victims of the 1985 Air India passenger jet bombing [CBC backgrounder; JURIST news archive] over the Atlantic Ocean could seek damages.

Van Loan said:

The Government of Canada is committed to fighting terrorism and to holding the perpetrators and supporters of terrorism accountable for their actions. With this Bill, we are showing leadership against terrorism. And we are providing a means for victims to seek justice against the individuals, organizations and foreign states that support terrorism.
The Canadian Coalition Against Terror (C-CAT) [advocacy website] has long called for a bill like the Justice for Victims of Terrorism Act, and has had a proposal [text, PDF] prepared since January 2008. Some legal experts in Canada have questioned [CBC report] both the diplomatic effects and the feasibility of such a law, noting that terrorist organizations are unlikely to either care about civil suits or appear in Canadian courts to defend themselves.

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Germany court rules Holocaust survivors eligible for pensions
Eszter Bardi on June 3, 2009 7:19 AM ET

[JURIST] The Federal Social Court of Western Germany [official website, in German] ruled Tuesday that Jewish-German Holocaust [JURIST news archive] survivors as a class are eligible to collect old-age pension benefits. Specifically, the court found [DW report] that although the work performed by three particular Jewish pension claimants in connection with their concentration camp detentions during World War II was involuntary and not monetarily compensated, it nonetheless bore a sufficient relationship to a conventional employee-employer relationship [DPA report], solidifying the eligibility of Holocaust survivors for the receipt of old-age pensions. This ruling provides clear guidance in the legal debate prompted by pension scheme providers' systematic refusal [AFP report] to provide benefits to similarly situated German citizens on grounds that involuntary and non-conventionally compensated work does not count toward the requisite criteria for the receipt of old-age pensions. Pension providers have used this line of reasoning to circumvent a 1997 ruling by the same court in which concentration camp workers were given the broad right to recover pension benefits [Claimscon backgrounder, PDF]. The ruling was subsequently codified as the Ghetto Pension Act [text, in German] by the German parliament [official website, in German] in 2002, but pension providers continued to deny 90 percent of the Holocaust workers' applications for old-age benefits. Monday's ruling is much-welcomed by Jewish communities since the newly articulated eligibility criteria will enhance the ability of many elderly Holocaust survivors to apply for old-age benefits or to appeal their previously denied application for such pensions.

In November, the German parliament passed [JURIST report] a resolution [text, PDF, in German] seeking to counter anti-Semitism [JURIST news archive] in the country. The measure required the government to develop a report on anti-Semitic behavior and feelings in the country, and to provide funding for school programs designed to combat anti-Semitism. The US State Department now issues yearly reports [2008 report, text] to Congress on anti-Semitism around the world in the wake of former President George W. Bush's 2004 signing [JURIST report] of the Global Anti-Semitism Review Act of 2004 [text, PDF]. The Act created an anti-Semitism office within the State Department and mandated an annual review and report on global anti-Semitism, in much the same way that the Department already reported on human rights and religious freedom.

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Rights groups urge Spain to continue universal jurisdiction policy
Brian Jackson on June 3, 2009 6:45 AM ET

[JURIST] Human rights groups on Tuesday called for the Spanish government to continue prosecuting those who violate international law under the principle of universal jurisdiction [AI backgrounder], sending a manifesto [text, PDF, in Spanish] to Spanish Prime Minister Jose Luis Rodriguez Zapatero [official profile, in Spanish]. The call from more than 100 human rights groups comes less than two weeks after the Spanish Congress of Deputies passed a non-binding resolution [JURIST report] designed to limit the scope of Spain's universal jurisdiction statute. In a statement [text] released last week, Reed Brody of Human Rights Watch (HRW) [advocacy website] compared the possibility of reduced jurisdictional scope to what occurred in Belgium in 2003 [HRW report] and said that such a reduction:

would confirm a growing sentiment – fueled by the dismissal of cases in France and Germany against U.S. officials accused of crimes against detainees, and the International Criminal Court’s focus thus far on Africa - that international justice targets only the leaders of weak states while officials of powerful countries have the muscle to prevent accountability.

Spanish Human Rights Association (FIDH) [advocacy website, in Spanish] president Souhayr Belhassen has called the move [press release, PDF, in Spanish] "a step backwards in the fight against impunity for the gravest crimes."

Universal jurisdiction gives Spain jurisdiction over foreign torture, terrorism and war crimes if the case is not subject to the legal system of the country involved. Earlier this month, a Spanish judge said that he would ask the US [JURIST report] about possible plans to prosecute six former US government lawyers for their alleged contributions to acts of torture at Guantanamo Bay [JURIST news archive] before deciding whether to proceed with his own investigation. The judge had taken the case over [JURIST report] from Spanish judge Baltazar Garzon, who opened an additional investigation [JURIST report] into alleged torture in Guantanamo based on complaints by four former detainees. Garzon, currently under investigation [JURIST report] for alleged judicial abuses in his investigations [JURIST report] into Civil War-era crimes committed by the regime of General Francisco Franco [BBC backgrounder], is famed for his high-profile investigations of terrorism and human rights abuses including cases against Osama bin Laden and former Latin American dictator Augusto Pinochet [JURIST news archives].

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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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