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Legal news from Monday, June 8, 2009

'Real IRA' found liable in Northern Ireland bombing civil suit
Christian Ehret on June 8, 2009 2:51 PM ET

[JURIST] The Belfast High Court on Monday found [judgment text; judgment summary, DOC] four men and the Real Irish Republican Army (RIRA) responsible for the 1998 Omagh bombing [BBC backgrounder; JURIST news archive] in a civil case brought by victims' families. The ruling held RIRA leader Michael McKevitt [personal website], Liam Campbell, Colm Murphy, and Seamus Daly liable for the terrorist attack that claimed at least 28 lives and injured about 220, awarding £1.64 million [Times Online report] to 12 plaintiffs. Presiding Justice Morgan found that McKevitt was involved in obtaining explosives for the organization based on evidence provided by an undercover FBI agent. The civil action was brought after criminal convictions failed against the alleged bombers. McKevitt maintains [text] that he and the other defendants were "consistently denied equality, fairness and an opportunity to put forward a defense [sic]." The Omagh Support and Self Help Group [advocacy website] hopes [press release] that the judgment sets a "groundbreaking precedent for future victims of terrorism," since the ruling is the first of its kind to be issued against both the alleged individual perpetrators and the terrorist organization itself.

McKevitt was convicted in August, 2003 for directing and being a member of an illegal organization and is currently serving a 20-year sentence. In December 2007, a Belfast judge found alleged RIRA member Sean Gerard Hoey not guilty of murder [JURIST report] in relation to the bombing, ruling that there was insufficient DNA evidence linking Hoey to the bomb to prove beyond a reasonable doubt that he made the device. The only conviction in connection with the Omagh bombing was in 2002 against Colm Murphy, which was later quashed for mishandling evidence [JURIST report]. In 2005, the Irish Public Prosecution Service dropped charges [JURIST report] against another suspect, Anthony Joseph Donegan. The Real IRA is a splinter group of the Provisional Irish Republican Army [MI5 profile], opposed to the Northern Ireland peace process.

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Ex-Guantanamo detainee at center of Supreme Court case alleges torture
Andrew Morgan on June 8, 2009 2:10 PM ET

[JURIST] Former Guantanamo Bay [JURIST news archive] detainee at the center of a landmark Supreme Court case Lakhdar Boumediene [BBC profile; JURIST news archive] said in an interview with ABC News [ABC report] released Monday that he was tortured by American personnel at the detention facility. Boumediene said that he was kept awake for 16 days and kept from practicing his faith. He also alleged a variety of physical abuse, including being dragged by guards if he was unable to keep up during forced runs and having his intravenous nutrition line inserted into his nose at points during a two and a half year hunger strike. In 2001, Boumediene was arrested in Sarajevo, where he worked with the Red Crescent Society [official website], on suspicion that he was involved in a plot to bomb the US and British embassies in the Bosnian capitol. Boumediene said that he was not asked about this alleged plot during his seven years at Guantanamo, but rather was repeatedly asked about his affiliation with al Qaeda and connection with Osama bin Laden [JURIST news archive]. Boumediene was the named plaintiff in the US Supreme Court's 2008 case Boumediene v. Bush [opinion, PDF; JURIST report], in which the Court held that Guantanamo detainees could challenge their imprisonment in federal court through the use of habeas corpus motions. Last month, Boumediene was released and sent to France [DOJ press release; JURIST report].

Boumediene's case was one of several challenges to the Guantanamo Bay facility brought by detainees that were heard by the Supreme Court. In 2006, Salim Hamdan [JURIST news archive] successfully challenged the military commission system [opinion, PDF] used to try Guantanamo detainees, with the Supreme Court ruling that the system as initially constructed violated US and international law. Congress subsequently passed the Military Commissions Act of 2006 [DOD materials], which established the current military commissions system. Hamdan was transferred to Yemen [JURIST report] in November to serve the remainder of his sentence [JURIST report], reduced by a military judge from five-and-a-half years to six months after crediting for time served. In 2004, Yaser Hamdi [JURIST news archive], a former American citizen captured in Afghanistan, challenged his two year detention without charges. The Supreme Court held [opinion text] that US courts had jurisdiction to hear habeas corpus petitions filed by Guantanamo detainees, and that the government could detain those properly classified as "enemy combatants" indefinitely. Hamdi was released to Saudi Arabia [JURIST report], where he renounced his American citizenship.

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Iraq forces arrest US contractors for death of American
Christian Ehret on June 8, 2009 1:30 PM ET

[JURIST] Five US contractors have been arrested by Iraqi officials for their alleged involvement in the May death of an American in Baghdad's Green Zone [GlobalSecurity backgrounder], according to Sunday reports. The suspects are not yet charged but may be the first Americans to face trial [Los Angeles Times report] in an Iraqi court since the Status of Forces Agreement (SOFA) [text, PDF] between the US and Iraq took effect in January. The agreement removed any immunity that private US contractors had under Iraqi law, allowing for the five accused to be tried. Jim Kitterman, an owner of a construction company, was found dead, bound, blindfolded, and stabbed in his car in late May. A US official anonymously disclosed [AP report] that the investigations involved possible charges other than murder. Kitterman's death is believed to be the first criminal killing of an American in the Green Zone since it was established in 2003.

In April, Iraq Prime Minister Nouri al-Maliki [BBC profile] claimed that a US military raid in Iraq violated the SOFA [JURIST report] because notice of the military operation was not given to the Joint Military Operations Coordination Committee (JMOCC). Al-Maliki said that he wanted to subject the US forces responsible for the raid to judicial proceedings. The agreement was signed [JURIST report] in December and took effect at the beginning of 2009 in anticipation of the expiration of the UN mandate [text] allowing US military presence in Iraq. In addition to eliminating immunity for US contractors and giving limited jurisdiction over military personnel, the agreement sets a 2011 deadline for the withdrawal of troops. A referendum is supposed to be held before the end of July to discuss the agreement.

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Supreme Court rules Iraq sovereign immunity applies to Saddam-era allegations
Andrew Morgan on June 8, 2009 10:36 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] issued opinions in five cases on Monday. In Republic of Iraq v. Beaty [Cornell LII backgrounder; JURIST report] and Iraq v. Simon, the Court ruled [opinion, PDF] that Iraq has sovereign immunity from US court jurisdiction in cases alleging mistreatment during the Saddam Hussein regime, at which time the country was designated as a sponsor of terrorism. At issue was the ability of the president to waive sections of the Foreign Sovereign Immunities Act (FSIA) [28 USC § 1602 et seq. text], which create exceptions to the general rule that states cannot be sued in US courts for states designated as sponsors of terrorism. In May 2003, then-US President George W. Bush used a provision of the Emergency Wartime Supplemental Appropriations Act (EWSAA) [HR 1559 text] to waive the applicability of the FSIA "state sponsor" exception to Iraq. The Supreme Court reversed the ruling of the US Court of Appeals for the DC Circuit, which found in both Beaty and Simon [opinions, PDF] that the waiver of the FSIA exception was meant only to apply to future allegations, and therefore allowed Saddam-era suits to proceed. The Court said that the waiver was meant to restore sovereign immunity to Iraq in its entirety, and should therefore apply prospectively and retroactively to all suits against the country:

When the President exercised his authority to make inapplicable with respect to Iraq all provisions of law that apply to countries that have supported terrorism, the exception to foreign sovereign immunity for state sponsors of terrorism became inoperative as against Iraq. As a result, the courts below lacked jurisdiction.
Justice Antonin Scalia delivered the opinion of a unanimous court.

In Caperton v. A.T. Massey Coal Company [Cornell LII backgrounder; JURIST report], the Court ruled [opinion, PDF] 5-4 that the decision by West Virginia Supreme Court of Appeals [official website] Justice Brent Benjamin [official profile] not to recuse himself from a case involving a major campaign contributor violated the due process [Cornell LII backgrounder] rights of the plaintiff in the case. The Court pointed out that the CEO of A.T. Massey [corporate website], the defendant in a fraud case before Benjamin's court, generated $3 million in campaign donations, which was "more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee." The Court said that:
The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case. ... [E]xtreme cases are more likely to cross constitutional limits, requiring this Court’s intervention and formulation of objective standards. This is particularly true when due process is violated.
Justice Anthony Kennedy delivered the opinion of the Court. Chief Justice John Roberts filed a dissenting opinion, joined by Scalia and Justices Clarence Thomas and Samuel Alito. Scalia also filed a separate dissent.

In Boyle v. United States [JURIST report], the Court ruled [opinion] 7-2 that an organization does not need to have an "ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages" to be considered an "enterprise" within the meaning of the Racketeer Influenced and Corrupt Organizations Act [text, 18 USC § 1961(4)] (RICO). The petitioner, who was convicted of burglary and conspiracy under RICO, argued that RICO required an organization separate from that necessary to carry out the predicate act. The Court rejected this argument, finding that the trial judge did not err in instructing the jury that "the existence of an association-in-fact is oftentimes more readily proven by what it does, rather than by abstract analysis of its structure" and accepted the government's broad interpretation of the statutory definition of "enterprise" under RICO.

In US ex rel. Eisenstein v. City of New York [JURIST report], the Court ruled [opinion, PDF] unanimously that the US is not a party to a qui tam action unless it brings the case or "it has exercised its right to intervene in the case." Eisenstein and four other New York City employees sued the city in a qui tam action, alleging that the city violated the False Claims Act [text] by imposing a fee on non-resident city employees. They filed an appeal with the US Court of Appeals for the Second Circuit 54 days after a district court dismissed the case for failure to state a claim, after the usual 30-day time limit for civil suits, but within the 60-day limit used when the US is a party to the suit. In an opinion by Thomas, the Court found that, since the US is not a "party" to Eisenstein's suit, the appeal was untimely.

In United States v. Denedo [Cornell LII backgrounder; JURIST report], the Court ruled [opinion, PDF] 5-4 that the Court of Appeals of the Armed Forces (CAAF) and the Navy-Marine Corp Court of Criminal Appeals (NMCCA) [official websites] have jurisdiction to entertain a petition for a writ of error coram nobis [backgrounder] from an earlier NMCCA judgment. The case involves a Nigerian national who enlisted in the US Navy and later pleaded guilty on larceny charges. After he was discharged from the Navy, deportation proceedings began on the basis of the conviction. Denedo asked the NMCCA and CAAF to set aside the earlier judgment because his counsel had told him that his plea would not affect his immigration status. The Court found that the NMCCA has jurisdiction over an error petition on its own ruling, and the CAAF has appellate jurisdiction over decisions of the NMCCA. Kennedy delivered the opinion of the Court. Roberts delivered an opinion concurring in part and dissenting in part, in which Scalia, Thomas, and Alito joined.

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Supreme Court takes corporate diversity jurisdiction, bankruptcy cases
Christian Ehret on June 8, 2009 10:23 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in two cases. In Hertz Corporation v. Friend, Melinda, et al [docket; cert. petition, PDF], the Court will consider whether the location of a nationwide corporation's headquarters can be disregarded by a court in determining a principal place of business for the purposes of diversity jurisdiction [USCourts backgrounder]. Federal law [28 USC § 1332 text] stipulates that "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." The petitioners maintained that their case should be heard on the grounds that the circuit courts are divided on how to determine a corporation's principal place of business. Currently, four different tests are being employed by federal courts that range from a strict focus on the corporation's "nerve center" to a broad consideration of multiple factors with no particular focus. The petitioners summarized their concerns with having a circuit split on the issue, saying:

Due to their differing emphases, these tests result in different outcomes with respect to the location of a corporation’s principal place of business. For example, a court which applies the nerve center test will locate a corporation’s principal place of business in one state, though a court applying the place of operations test would likely locate it in another. However, the very wording of 28 USC § 1332(c)(1) makes clear that a corporation can have one, and only one, principal place of business.
The appeal comes from a Ninth Circuit [official website] ruling [opinion, PDF] affirming the district court's application of the "place of operations" test, which looks to the location of the corporation's business activities and only considers its "nerve center" if the activities do not substantially predominate in any one state. The petition points out that this test is in direct conflict with the tests used by the Seventh and Third Circuit courts.

In the consolidated cases of Milavetz, Gallop & Milavetz v. United States and United States v. Milavetz, Gallop & Milavetz [dockets; cert. petition; cert. petition], the Court will decide the scope of a federal law prohibiting certain bankruptcy professionals from advising consumer debtors to incur more debt in contemplation of filing for bankruptcy and whether it violates the First Amendment [text]. The law firm of Milavetz, Gallop & Milavetz [corporate website] brought the suit against the United States seeking a judgment declaring that certain provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) [text] are unconstitutional as applied to attorneys. The Eighth Circuit [official website] ruled [opinion, PDF] that, while bankruptcy attorneys meet the definition of a "debt relief agency" in the legislation, the BAPCPA provisions codified in 11 U.S.C. § 526(a)(4) [text] are unconstitutional as applied to attorneys.

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UN SG Ban urges probe of alleged violations of humanitarian law in Sri Lanka conflict
Andrew Morgan on June 8, 2009 9:16 AM ET

[JURIST] UN Secretary-General Ban Ki-moon [official website] on Friday called [transcript] on the government of Sri Lanka [JURIST news archive] to conduct a "proper investigation" of any "credible allegations of violations of humanitarian law" arising from the recent conflict between the government and the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive] that ended last month with the military collapse of the Tigers and the killing of its leaders. Ban urged the Sri Lankan government to "recognize the international call for accountability and full transparency" after the cessation of hostilities. After briefing the Security Council [official website] on his recent visit to the country, Ban said that:

It is crucially important that the Sri Lankan Government follow-up on all the promises that they have made. Any inquiry, to be meaningful, should be supported by the members of the United Nations, and also should be very impartial and objective. I have been urging the Sri Lankan President on this matter. He assured me that he will institute the necessary procedures to ensure the transparency and accountability of this [process].

Sri Lanka's Minister of Disaster Management and Human Rights Mahinda Samarasinghe [official profile] said [AP report] that he believed that Ban was referring to a domestic effort aimed at ethnic reconciliation, not an international war crimes tribunal. Samarasinghe pointed to a resolution [text, DOC] adopted by the UN Human Rights Council [official website] in May that did not call for a war crimes investigation [JURIST report] as an accurate reflection of international sentiment.

Last week, Amnesty International (AI) [advocacy website] called on the UN Security Council to establish an international body [JURIST report] to investigate war crimes allegedly committed in Sri Lanka. 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. Also in May, Ban and Sri Lankan President Mahinda Rajapaksa [official website] had reached a similar agreement [text], which Rajapaksa rejected [JURIST report] a day later. 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. The 25-year civil war [BBC timeline] in Sri Lanka has resulted in more than 70,000 deaths.

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North Korea court sentences US journalists to 12 years forced labor
Christian Ehret on June 8, 2009 8:32 AM ET

[JURIST] US journalists Laura Ling and Seung-eun Lee [BBC profile] were sentenced on Monday in North Korea's Pyongyang Central Court to 12 years in labor camps [KCNA report, in Korean]. The journalists were arrested [JURIST report] in March for allegedly crossing into North Korea while reporting on North Korean defectors for Current TV [media website] and were subsequently charged with unspecified "hostile acts." The trial, which began Thursday [JURIST report], is final and binding [Korea Herald report] as there is no opportunity to appeal from the Central Court's ruling. The sentence may include [Yonhap News report] forced labor at farms, mines, factories, or construction sites, according to an analyst who defected to South Korea. US President Barack Obama [official profile] expressed concern over the sentence, maintaining that the government would pursue all possible channels [AFP report] to obtain the journalists' freedom. Free press advocacy group Reporters Without Borders (RSF) [official website, in French] said that the women were arrested while conducting "solely journalistic" work, and called on the court to show lenience [press release, in French] by acquitting them on all charges.

The journalists' conviction comes at a sensitive time for US-North Korean relations. Recently, North Korea conducted a second nuclear test [NYT report] in defiance of a 2006 UN Security Council [official website] ban on nuclear or missile tests [Resolution 1718 text; JURIST report]. UN Secretary-General Ban Ki-Moon [official profile] and other world leaders condemned [statement text] the test. In April, North Korea also violated the resolution when it fired a rocket [NYT report] in an attempt to put a satellite into space and test its missile technology, after ordering UN nuclear inspectors out [press release] of the country. North Korea has been accused of using the captured journalists as pawns [JURIST op-ed] in policy disputes with the US. North Korea has ranked [JURIST report] among the countries with the least protection for press freedoms.

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

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