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Legal news from Friday, June 5, 2009

UK court rules veterans can sue over atomic testing radiation illness
Christian Ehret on June 5, 2009 3:34 PM ET

[JURIST] Britain's High Court of Justice [official website] ruled [judgment, PDF] Friday that military veterans involved in nuclear tests have the right to sue the Ministry of Defense (MOD) [official website] for injuries resulting from exposure to radiation. The tests carried out by the British Government in Australia and on Pacific islands between October 1952 and September 1958 have been linked to cancer, disability, and death for the veterans involved. The tests were conducted following a government decision to develop their own independent nuclear weapon arsenal. The court found that more than 20,000 UK personnel were present or involved in the aftermath of the tests in addition to several Fijian and New Zealand personnel. The veterans contend that the MOD was negligent by "failing to take reasonable precautions against such exposure." The MOD denied the negligence allegations, maintaining that those present at the tests were not excessively exposed to the radiation and that the precautions taken by the government were "reasonable and acceptable by the standards of the day." Additionally, the MOD argued that the claims were untimely and that the injury claims would not have been caused by exposure to radiation or that it is impossible to prove that they were. The veterans had claimed that their suit should not be barred by the Limitation Act 1980 [text] since they only recently acquired knowledge that their injuries were "attributable in whole or in part" to the tests. Additionally, the claimants argued that section 33 of the Limitation Act gives the court discretion to permit the claim to proceed despite timeliness. The judge found that the claims were barred by the statute but used his discretion to bypass the time limit. The judge recommended mediation to the parties as a means of achieving a settlement, citing the uncertainties of litigation and the ages of the veterans.

Recently, the Tokyo High Court granted an appeal [JURIST report] to consider 30 people for official recognition as atomic bomb victims resulting from the US atomic bomb attacks on Hiroshima and Nagasaki in August, 1945. Earlier this year, the US Court of Appeals for the Federal Circuit [official website] affirmed the dismissal [opinion, PDF] of complaints brought by the people and descendants of the Bikini and Enewetak Atolls seeking further compensation arising out of bomb testing in the 1940s and 1950s. In 2006, a British veteran received £40,000 [BBC report] from the US under the Radiation Exposure Compensation Act [materials text] for his involvement in the allied British-US testing. The MOD did not compensate him due to a lack of evidence connecting the tests to the illness.

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Rights group urges UN Sri Lanka war crimes probe
Andrew Morgan on June 5, 2009 2:20 PM ET

[JURIST] Amnesty International (AI) [advocacy website] urged the UN Security Council [official website] to establish an international body to conduct an inquiry into war crimes allegedly committed in Sri Lanka [JURIST news archive], and to press the Sri Lankan government to allow full access to aid groups, in an open letter [text, PDF; press release] released Thursday. Yvonne Terlingen, head of AI at the UN, said in a letter addressed to individual security council members that the UN Human Rights Council [official website] had "failed spectacularly" by failing to call for an investigation in a May resolution [JURIST report], because:

there are serious grounds to doubt the government’s ability and willingness to address accountability in any manner that is credible and meets Sri Lanka’s international obligations. Sri Lanka has a long-standing record of impunity for gross and persistent human rights violations and governmental obstruction to national mechanisms to establish accountability, combined with curbs on the independence of the judiciary and the activities of lawyers and other human rights defenders.

AI further urged the Security Council to adopt a resolution requiring the Sri Lankan government to allow UN aid workers, the Red Cross [official website], and other NGOs "immediate and full access" to "all places of detention and all camps for the displaced." In May, Sri Lankan President Mahinda Rajapaksa and UN Secretary-General Ban Ki-Moon [official websites] had reached a similar agreement [text], which Rajapaksa rejected [JURIST report] a day later.

The international community has expressed concerns about human rights violations during and after the Sri Lankan conflict. Last month, the UNHRC adopted a resolution [text, DOC] welcoming the end of the conflict between government forces and the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive], but failed to call for investigations into alleged breaches of international law. Also last month, the Council of the European Union [official website] called for an independent inquiry [conclusions, PDF; JURIST report] into possible war crimes committed during fighting between the Sri Lankan government and LTTE. In March, the Sri Lankan government denied [JURIST report] allegations by UN High Commissioner for Human Rights Navi Pillay [official profile; JURIST news archive] that 2,800 civilian deaths caused by recent military action against the LTTE may constitute war crimes. In February, Human Rights Watch (HRW) [advocacy website] released a report [text, PDF; JURIST report] alleging that both the Sri Lankan government and the LTTE are guilty of human rights violations. Earlier this year, Pillay condemned [press release; JURIST report] the deteriorating conditions of those trapped in the Vanni region, and called for investigations and prosecutions for the killings and other human rights abuses.

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Canada refuses US request to accept Uighur Guantanamo detainees
Christian Ehret on June 5, 2009 1:56 PM ET

[JURIST] The Canadian government on Thursday refused a US request to accept Chinese Uighur Muslims from Guantanamo Bay [JURIST news archives]. A spokesman for Prime Minister Stephen Harper [official profile] affirmed [CBC report] that the Canadian government is not willing to take detainees from the detention facility. Director of communication for the prime minister's office Kory Teneycke [Canada.com profile] stated that there is no justification for Canada to receive any detainees who are not Canadian citizens or are lacking a connection to the country. Additionally, Teneycke said that there are no plans to receive Canadian Guantanamo detainee Omar Khadr [JURIST news archive]. In a related development, lawyers for the Uighur detainees filed a brief [text, PDF] with the US Supreme Court [official website] on Friday, responding to the US government's recent reply [brief, PDF; JURIST report] to the detainees' petition for certiorari [text, PDF; JURIST report]. The petitioners addressed their concern that the February ruling [opinion, PDF] by the US Court of Appeals for the DC Circuit [official website] regarding the Uighurs renders the Court's decision in Boumediene v. Bush [opinion, PDF; JURIST report] merely advisory.

In May, Republican leaders in the House of Representatives [official website] proposed a bill [JURIST report] that, if passed, might block a proposed plan to accept up to seven Uighur detainees [JURIST report] into the US. In March, US Attorney General Eric Holder [official profile] announced that the US would consider accepting all 17 detainees [JURIST report]. February's decision by the DC Circuit overruled an October district court order [opinion and order, PDF; JURIST report] supporting the release of the Uighurs into the US. The US government has determined that the Uighurs are not unlawful enemy combatants [10 USC § 948a text; JURIST news archive], but have been linked with the East Turkestan Islamic Movement (ETIM) [CFR backgrounder], a militant group that calls for separation from China and has been a US-designated terrorist group since 2002.

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ICTY sets Karadzic trial date for August
Christian Ehret on June 5, 2009 12:50 PM ET

[JURIST] The trial for former Bosnian Serb leader Radovan Karadzic [ICTY materials; JURIST news archive] will start in late August and is likely to conclude in early 2012, according to a statement [text, PDF] by the president of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website]. Judge Patrick Robinson [official profile] stated that most appellate work in both the ICTY and the International Criminal Tribunal for Rwanda (ICTR) would be completed by the end of 2012, earlier than the tribunals' previous estimate of 2015. Although Karadzic's trial is set to be the tribunal's last, Robinson stressed that the capture of Serb wartime commander Ratko Mladic and former Croatian Serb rebel leader Goran Hadzic is a "serious hurdle" remaining for the court.

In May, Karadzic filed a motion [text, PDF] with the court to renew his claim [JURIST report] that charges against him should be dropped due to an alleged promise of immunity from former US ambassador to the UN Richard Holbrooke [PBS profile]. Karadzic claimed that he was promised immunity from prosecution if he voluntarily left power in 1996. In April, the appeals chamber of the ICTY upheld a previous ruling that held that even if an immunity agreement existed, it would not be valid under international law. Karadzic has twice refused to enter pleas [JURIST report] to 11 charges against him, including genocide, murder, persecution, deportation, and "other inhumane acts," for war crimes allegedly committed during the 1992-1995 Bosnian war, including the 1995 Srebrenica massacre [BBC backgrounder; JURIST news archive]. Karadzic was originally indicted [indictment text] by the ICTY in 1995, but had been in hiding under an assumed identity until his arrest last year [JURIST report].

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Rwanda prosecutor criticizes ICTR refusal to transfer jurisdiction
Andrew Morgan on June 5, 2009 12:16 PM ET

[JURIST] Rwandan Prosecutor General [official website] Martin Ngoga told [press release] the UN Security Council [official website] Thursday that the decisions by the International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] not to transfer pending cases to Rwandan jurisdiction, including genocide suspects Jean-Baptiste Gatete [TrialWatch profile; JURIST report] and Yussuf Munyakazi [case materials; JURIST report] undermines his country's judicial reforms and hinders national reconciliation. Ngoga said that "[e]rroneous, factually incorrect assessments" and occasional "deliberate misrepresentations" of the country's human rights situation by advocacy organizations like Human Rights Watch (HRW) [advocacy website] have also had a negative effect [New Times report] on the country's progress. Emphasizing that Rwanda has continued to cooperate with the tribunal, Ngoga expressed the country's desire to have the cases transferred to Rwandan jurisdiction at the completion of the ICTR's mandate, a plan discussed [JURIST report] by UN Deputy Secretary for Legal Affairs Pamela O'Brien [official profile] in March. ICTR President Dennis Byron [official profile] submitted a plan [letter, PDF] for the ICTR, which extends trial stages through 2009 and reserves the final year of the court's mandate for appellate orders and responses.

The ICTR was established to try genocide suspects for crimes occurring during the 1994 Rwandan conflict [HRW backgrounder] between Hutus and Tutsis in which approximately 800,000 people, primarily Tutsis, died. In March, UN Secretary General Ban Ki-Moon [official profile; JURIST news archive] pledged his ongoing support [JURIST report] for the ICTR and stressed that the international community must continue to combat genocide. In July, a report [text, PDF] released by HRW said the Rwandan government [official website] had made substantial progress [JURIST report] in reforming its justice system but fallen short in several key areas. In July 2007, HRW urged [JURIST report] Rwanda to conduct an "independent and impartial" investigation [press release] into an increasing number of alleged extrajudicial killings, saying in a report [HRW materials] that Rwanda National Police officers had killed at least 20 prisoners in seven months.

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SEC charges former Countrywide officials with securities fraud, insider trading
Christian Ehret on June 5, 2009 10:57 AM ET

[JURIST] The US Securities and Exchange Commission (SEC) [official website] on Thursday charged [complaint, PDF] former Countrywide Financial Corporation officials with securities fraud arising from misleading investors. Former CEO Angelo Mozilo [BusinessWeek profile] was additionally charged with insider trading for selling his stock in the company based on inside information, profiting almost $140 million. The SEC alleges that Mozilo, former president David Sambol and former CFO Eric Sieracki falsely assured investors about credit risks involved in the company's efforts to build and maintain their market share, claiming that they avoided the mistakes made by their competitors. The complaint alleges that the officials knew the company was issuing risky loans and that defaults and delinquencies would rise as a result. Additionally, the SEC claims that, despite severe internal concerns about the high-risk options, crucial information was hidden [press release] from investors and potential investors who were assured that the company "consistently produced quality mortgages." SEC Enforcement Director Robert Khuzami [official profile] addressed [speech text] the fraud charges:

Since I came to this job on March 30, we have made it a priority to pursue cases at the root of the financial crisis.

This is a tale of two companies. There was the one that investors saw from the outside, allegedly characterized by prudent business practices and tightly-controlled risk. But the real Countrywide, which could only be seen from the inside, was one buckling under the weight of deteriorating mortgages, lax underwriting, and an increasingly suspect business model.
Khuzami stressed that the SEC considers investors to always be the top priority for companies, maintaining that he will aggressively pursue those who put their own priorities above those of investors. Countrywide was acquired [AP report] by Bank of America [corporate website] in July 2008, making the bank the nation's leading mortgage originator.

In October, Countrywide settled [JURIST report] a dispute over state lending practices for $8.4 billion. The suit claimed that the company and its officers encouraged people to purchase risky loans so that the company could sell the loans for a profit. The Federal Reserve Board approved new rules [JURIST report] for home mortgage loans in July that were designed to reduce unfair lending practices and reduce consumer protection. In June, the US Attorney's Office for the Eastern District of New York [official website] announced the indictments [text, PDF] of two senior hedge fund managers at Bear Stearns [corporate website] for allegedly misleading investors after they knew their mortgage-related funds were at serious risk of collapse. In March 2008, the Department of Justice (DOJ) [official website] and the FBI launched a criminal investigation [JURIST report] into Countrywide.

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House subcommittee denies Guantanamo closure funds to DOJ
Andrew Morgan on June 5, 2009 10:11 AM ET

[JURIST] The US House Appropriations Committee Subcommittee on Commerce, Justice, Science, and Related Agencies [official websites] on Thursday denied the $60 million requested by President Barack Obama for the closure of the Guantanamo Bay [JURIST news archive] detention facility by approving a draft bill [opening statement, PDF] funding the US Department of Justice (DOJ) [official website] for fiscal year 2010 that did not include the requested funds. The draft cleared the committee [CQ Politics report] on a voice vote after restrictions on the transfer of detainees were attached. The funding could be released [AFP report] when Obama presents a detailed plan on detainee release to Congress. Though Republican members of the subcommittee criticized increased spending [press release] as "excessive and unsustainable," Republicans have consistently opposed the transfer of detainees. Last month, House Minority Leader John Boehner (R-OH) [official website] introduced the Keep Terrorists Out of America Act [text], which would require the approval of state governors and legislatures prior to the transfer of any Guantanamo detainees.

On Thursday, the Council of the European Union [official website] agreed [press release; JURIST report] on parameters for the acceptance of released detainees, concluding that those member states that are willing to receive released detainees should only accept those who are cleared for release, do not face prosecution in the US, and have compelling reasons not to return to their home countries. The US Senate [official website] last month approved an amendment [JURIST report] eliminating $80 million from pending legislation intended to fund the closure of Guantanamo Bay.

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Sotomayor returns detailed questionnaire to Senate committee
Christian Ehret on June 5, 2009 8:40 AM ET

[JURIST] US Supreme Court [official website] nominee Sonia Sotomayor [WH profile; LOC materials] on Thursday returned a Senate Judiciary Committee [official website] questionnaire [text, PDF; materials] regarding her prior judgments, financial status, potential conflicts of interest, and various other details of her past. The documents, which contain transcripts of past speeches, hearings, and writings, shed light on comments and rulings that have recently been highlighted in the media. Particularly, the transcripts show multiple instances of her controversial comment during a 2001 speech at the UC Berkeley School of Law saying that a "wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." While on the Second Circuit, Sotomayor wrote more than 230 majority opinions and participated in more than 3,000 panel decisions. The questionnaire provides a brief summary of all her Second Circuit and district court opinions that were reversed, vacated, or affirmed with significant criticism of her substantive or procedural rulings. Listed are four reversals and seven vacated judgments at the Supreme Court level. The questionnaire contains a detailed resume that includes more federal judicial experience [WH blog] than anyone confirmed for the Court in the past 100 years. Sotomayor discussed the confirmation process in a recent Federalist Society Panel:

Few political events bring to the general public’s attention and fascination the dynamic dichotomy and interplay of our system of separation of powers than does the confirmation process. A supreme court confirmation is a historical snapshot moment that exposes to the public the delicate balance and checks that our constitution creates in the relationship among the branches of government.

Also released by the Senate Judiciary Committee are Sotomayor's confirmation hearing transcripts and questionnaires for her Second Circuit and district court [text, PDF] positions.

Recently, President Barack Obama praised [JURIST report] Sotomayor's experience and wisdom, rebuking Republicans who would oppose her confirmation. Obama warned against partisanship in the confirmation process, saying that he hoped that Congress would "avoid the political posturing and ideological brinksmanship" that marked past confirmation hearings. Following Obama's nomination, the top Republican on the Senate Judiciary Committee said that he did not anticipate a filibuster [JURIST report] against Sotomayor.

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DOJ asks Ninth Circuit to remand corruption case against Alaska lawmakers
Andrew Morgan on June 5, 2009 8:38 AM ET

[JURIST] The US Department of Justice (DOJ) on Thursday asked the US Court of Appeals for the Ninth Circuit [official websites] to remand the case of two convicted Alaska lawmakers [press release] to district court and to release the prisoners on their own recognizance. Admitting that DOJ prosecutors did not disclose all necessary information to the defense during discovery, Attorney General Eric Holder [official profile] said:

Department of Justice prosecutors work hard every day and perform a great service for the American people. But the Department’s mission is to do justice, not just win cases, and when we make mistakes, it is our duty to admit and correct those mistakes. We are committed to doing that.

The DOJ has not dropped the charges against former Alaska Republican state representatives Peter Kott and Victor Kohring, as it had when similar errors were discovered [JURIST report] in the prosecution of former Alaska senator Ted Stevens [US Congress backgrounder].

Kohring was convicted [NYT report] in November 2007 and sentenced to 42 months in federal prison on extortion, bribery and conspiracy charges, based largely on FBI video surveillance [ADN video archive] evidence. Kott was convicted on similar charges, as well as wire fraud, in September 2007. Kohring and Kott were charged with selling their influence to VECO Corp. [corporate website], an Alaska oil services and engineering company. Several other Alaska lawmakers, including VECO's CEO Bill Allen and Vice President Rick Smith, prominent lawyer Jim Clark, and several high profile lobbyists, were also indicted, convicted, or pleaded guilty [ADN backgrounder] to corruption-related charges. Former Alaska state representative Tom Anderson [JURIST report] was convicted and sentenced [JURIST report] to five years in prison for accepting nearly $26,000 he believed to be from private correctional facilities firm Cornell Industries [corporate website] in exchange for Anderson's influence on then-pending measures on halfway houses. Although none of the charges related to VECO, Anderson did work as a consultant [ADN report] for the company.

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Turkish police arrest 20 more in alleged coup plot
Matt Glenn on June 5, 2009 7:21 AM ET

[JURIST] Turkish police on Thursday arrested ten military officers and ten others in connection with an alleged coup plot. The Turkish government linked the arrested men [Hurriyet report] with Ergenekon [BBC backgrounder], a Turkish secular nationalist group that is accused of trying to overthrow Turkey's ruling Justice and Development Party (AKP) [party website, in Turkish]. Turkish police arrested the men nearly simultaneously in sting operations spread across five provinces. The ten military men worked in an Ankara hospital. The Ergenekon probe has been criticized as an attempt by the AKP to silence opposition and further their imposition of Islamic principles [DPA report; JURIST report] in violation of Turkey's secular constitution [text].

In May, the Turkish government merged [JURIST report] a case against a lawyer accused of killing a judge with its case against Ergenekon. Also in May, Turkish police arrested eight others [NYT report], including four professors, in connection with the case. In March, 56 people were arrested in connection with the group [JURIST report], including two former generals. Earlier that month, a Turkish court ordered the arrest [JURIST report] of Cumhuriyet journalist Mustafa Balbay and internet publisher Neriman Aydin for their alleged involvement the coup plot. There are currently more than 100 suspects in custody, with 40 arrested January 7, another 12 arrested January 12, and 30 arrested January 19 [JURIST reports]. The suspects include journalists, academics, army officers, policemen, and Turkish Workers' Party [party website, in Turkish] leader Dogu Perincek [JURIST report].

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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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