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Legal news from Tuesday, June 9, 2009




UN refugee agency urges parties to Somalia conflict to respect international law
Andrew Morgan on June 9, 2009 2:58 PM ET

[JURIST] The Office of the UN High Commissioner for Refugees (UNHCR) [official website] on Tuesday condemned [press release] the violence perpetrated against civilians in Mogadishu, Somalia, during an uptick in fighting between government and militia forces over the weekend, as a violation of international human rights law. Calling the treatment of the civilian population "unacceptable," Guillermo Bettocchi, the UNHCR Representative to Somalia, said that "[a]ll warring parties in this conflict should be reminded of their obligations under international humanitarian and human rights law to protect civilians, to refrain from indiscriminate attacks on civilians and to limit their attacks to military targets." UNHCR was forced to suspend humanitarian aid to roughly 30,000 people southeast of the capitol after fighting between government and opposition forces made access too dangerous. Calling children the "main victims" of the fighting, UN International Children's Emergency Fund (UNICEF) [official website] Acting Representative to Somalia Hannan Sulieman reminded [press release] those participating in the conflict that the "use of children under 15 years old in combat is a war crime with legal consequences for the perpetrators." According to UNHCR, the latest round of fighting raised the number of people displaced from Mogadishu to 117,000 with 200 people killed in the capitol last month.

Somalia has endured a lengthy civil war and several rounds of failed peace talks [BBC timeline] since the collapse of its last civil government in 1991. In April, the Somali parliament, meeting in Djibouti to avoid violence in Mogadishu, voted to adopt [JURIST report] Islamic Sharia law [CFR backgrounder; JURIST news archive] as part of a cease-fire agreement with the country's Hizb al-Islamiya and Al-Shabaab rebels. Somali President Sharif Sheikh Ahmed [BBC profile] expressed his support [JURIST report] for the adoption of a moderate form of Sharia in March as part of peace talks with the rebels. In December, Human Rights Watch (HRW) [advocacy website] released a report [text, PDF] accusing both rebels and the government of having committed war crimes in the conflict. In January 2007, the transitional government began imposing martial law [JURIST report] over areas under their control.






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Sotomayor confirmation hearing scheduled for July 13
Christian Ehret on June 9, 2009 2:23 PM ET

[JURIST] Confirmation hearings for US Supreme Court [official website] nominee Sonia Sotomayor [WH profile] will begin on July 13, as announced [statement text] Tuesday by Senate Judiciary Committee Chairman Patrick Leahy [official websites]. The committee released a schedule [fact sheet, PDF] for the process that attempts to follow a time line of Justice Roberts' confirmation. The schedule foresees Sotomayor being confirmed on August 6, before the Senate recesses on August 9. Leahy emphasized that Sotomayor's confirmation should be a smooth process since her record has already been subject to review since Justice David Souter's retirement [JURIST report] and because she has already been considered and confirmed twice before as a federal judge. Since Senate Republicans and Democrats agreed on a reasonable time frame for Justice John Roberts' hearing and confirmation, Leahy reasoned that delaying Sotomayor's hearing would be unequal treatment. Leahy addressed the confirmation schedule, saying:

In selecting this date I am trying to be fair to all concerned. I want to be fair to the nominee and allow her the earliest possible opportunity to respond to the attacks made about her character. It is not fair for her critics to be calling her racist without allowing her the opportunity to respond. I also want to conclude the process without unnecessary delay so that she might participate fully in the deliberations of the Supreme Court selecting cases and preparing for its new term. ...

There is no reason to indulge in needless and unreasonable delay.This is an historic nomination. It should unite the American people and the Senate.
Leahy also addressed some of the negative reactions that Sotomayor's nomination has elicited. Classifying the recent attacks on her as unfair, Leahy defended the nominee and declared allegations of racism and bigotry to be untrue. Leahy finished his statement by commending President Barack Obama for consulting with "Senators from both sides of the aisle" in his selection of Sotomayor.

Sotomayor returned the Senate committee questionnaire [JURIST report] last week detailing her prior judgments, financial status, potential conflicts of interest and various other details of her past. 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 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 reports] against Sotomayor.





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Senate judiciary subcommittee urged to reject 'prolonged detention' policy
Andrew Morgan on June 9, 2009 10:57 AM ET

[JURIST] The US Senate Judiciary Committee's Subcommittee on the Constitution [official website] on Tuesday heard testimony [materials; video] regarding the "legal, moral and national security impact" of long-term, indefinite detention without trial of terrorism suspects. Judiciary Committee Chairman Senator Patrick Leahy (D-VT) [official website] said that the hearing was intended to advise [statement] the committee about "various proposals for preventive detention that have been debated in recent months by experts and academics." Sarah Cleveland [official profile], Professor of Human and Constitutional Rights at Columbia Law School [official website], said that she was asking [testimony] Congress "to resist any effort to authorize the United States to establish an indefinite detention system for terrorism suspects seized outside a traditional battlefield." Saying that "prolonged detention without trial offends the world's most basic sense of fairness," Cleveland concluded that the "Constitution does not recognize a roving power to detain dangerous persons as a substitute for criminal trial." Tom Malinowski [official profile], Washington advocacy director for Human Rights Watch [advocacy website], said that the US criminal justice system was the best alternative [testimony] to continued detention of suspects who can't be returned to their country of origin. Elisa Massimino [official profile], CEO and Executive Director of Human Rights First [advocacy website] said [testimony] that, although there has not been a "full public accounting of the strategic and operational cost" of indefinite detention, "there is plenty of evidence to suggest that continuing down the road prolonged detention without trial will continue to undermine our security." Former Assistant Attorney in the Eastern District of Virginia [official website] David Laufman [professional profile] told the subcommittee [testimony] that his experience prosecuting terrorism-related cases after the September 11 attacks convinced him that "terrorism prosecutions should be brought in Article III courts whenever possible" because doing so would confer "greater legitimacy on these prosecutions." David Rivkin [professional profile], Co-Chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies [advocacy website], discussed the history of detaining [testimony] "unlawful combatants" in prior American conflicts, calling the detention of al Qaeda and Taliban members for the duration of hostilities a "legal and ... immensely reasonable" policy. Richard Klingler [professional profile], formerly General Counsel to the National Security Council [official website] and Senior Associate Counsel to President George W. Bush, said [testimony] that the country has a moral obligation to protect its troops and that a "detention practice that is lawful, that focuses on discrete groups of foreigners abroad who would harm our troops and citizens, and that avoids alternatives that undermine the rights of U.S. citizens has a strong moral claim."

The committee held the hearing after US President Barack Obama said last month, during a national security speech [JURIST report], that it may be necessary to continue detention without trial of some terrorism suspects after the closure of Guantanamo Bay [JURIST news archive]. In addition to questions about prosecuting terrorism suspects in federal criminal trials, Obama's plan to close the facility within one year, announced in a January executive order [text; JURIST report], has been hampered by Congressional funding issues in both the House and Senate [JURIST reports] and by difficulty finding countries willing to take released detainees [JURIST news archive]






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Guantanamo detainee transferred to US for prosecution in embassy bombings
Christian Ehret on June 9, 2009 10:50 AM ET

[JURIST] A Guantanamo Bay [JURIST news archive] detainee was transferred [press release] to New York on Tuesday to face criminal charges for his alleged terrorist activities, marking the first time a detainee from the facility has been brought to the US for prosecution. Ahmed Khalfan Ghailani [GlobalSecurity profile], who has been held at the controversial detention facility since 2006, is accused of being involved in the 1998 bombings of US embassies [PBS backgrounder] in Tanzania and Kenya which killed 224 people. Along with the embassy bombing charges, Ghailani is charged with 286 separate counts including conspiring with Osama bin Laden and other members of al-Qaeda to kill Americans anywhere in the world. Ghailani is in custody at the Metropolitan Correctional Center [official website] in Manhattan and is scheduled to make an initial appearance in federal court in the Southern District of New York (SDNY). US Attorney General Eric Holder [official profile] addressed the Justice Department's competence in detaining and prosecuting terror suspects:


With his appearance in federal court today, Ahmed Ghailani is being held accountable for his alleged role in the bombing of US Embassies in Tanzania and Kenya and the murder of 224 people. The Justice Department has a long history of securely detaining and successfully prosecuting terror suspects through the criminal justice system, and we will bring that experience to bear in seeking justice in this case.

Also on Tuesday, the US Department of Justice (DOJ) [official website] released a fact sheet [press release] summarizing the detainment and prosecution of terrorism suspects in the US criminal justice system. The release assures that the SDNY US Attorney's Office [official website] is equipped for the prosecution of terrorism suspects by enumerating past cases in the jurisdiction where such suspects were brought to justice. The SDNY has previously indicted individuals for their role in the embassy bombings, including four defendants who were successfully sentenced to life in prison. The release goes on to list other terrorism suspects who have been charged and prosecuted in US federal courts across the country and specifies that the Bureau of Prisons [official website] currently detains 216 inmates with connections to international terrorism.

The announcement [JURIST report] that Ghailani would be tried in federal court came last month following the ordered review of all Guantanamo detainees pursuant to plans to close the detention facility [JURIST news archive]. The government has been struggling with the placement of released Guantanamo detainees since the January announcement of the facility's closure. Last week, the Canadian government denied a US request to accept Chinese Uighur Muslims [JURIST report] from the detention center and affirmed an unwillingness to accept other detainees. Earlier this month, the Council of the European Union agreed on parameters [JURIST report] for the acceptance of released Guantanamo detainees by European Union (EU) [official website] member states. The agreement followed a meeting in March between US officials and EU leaders to discuss plans [JURIST report] to transfer detainees to European countries. Individual member states have also indicated their openness to accepting detainees, including Lithuania, Ireland, and Portugal [JURIST reports]. Other states have expressed reservations about accepting detainees, including Poland and Spain, while Italy [JURIST reports] and the Netherlands [AFP report] have said they will not accept detainees.





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CIA director says release of interrogation documents would harm national security
Andrew Morgan on June 9, 2009 8:39 AM ET

[JURIST] Director of the Central Intelligence Agency (CIA) [official website] Leon Panetta [official profile] said Monday that the release of agency documents describing detainee interrogations would damage national security [affidavit, PDF]. In an affidavit filed with the US District Court for the Southern District of New York [official website], Panetta said that the release of CIA records would be more inflammatory than Department of Justice (DOJ) [official website] memos [JURIST report] authorizing enhanced interrogation techniques [JURIST news archive] because they pertain to actual interrogations, whereas the memos were purely theoretical. Panetta also defended the destruction of 92 videotapes [JURIST news archive] of terrorism suspect interrogations, and the classification of records about the tapes, because their disclosure would implicate sources and methods of gathering intelligence.

Panetta filed the affidavit in connection with a lawsuit [ACLU materials] brought by the American Civil Liberties Union (ACLU) [advocacy website] in 2003 seeking the disclosure of all information related to detainees held overseas by the United States under the Freedom of Information Act (FOIA) [text]. Last month, US President Barack Obama defended his decision [JURIST reports] not to disclose Department of Defense (DOD) [official website] photographs and other documents related to detainee treatment. The ACLU's suit has resulted in the release of numerous government documents, including redacted memos [text, PDF; text, PDF; text, PDF; text, PDF], authored by the DOJ's Office of Legal Counsel (OLC) [official website], which provided the legal rational for CIA interrogation techniques.






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FBI head defends mosque investigations
Christian Ehret on June 9, 2009 8:28 AM ET

[JURIST] FBI Director Robert Mueller [official profile] said Monday that the FBI will continue investigating mosques when there may be evidence or information regarding criminal wrongdoings. Mueller's defense [AP report] of such investigations followed a complaint sent to US Attorney General Eric Holder [official profile] from the Council of Islamic Organizations of Michigan [advocacy website] alleging that the FBI has been asking members of the Islamic community to spy on religious leaders and followers. The alleged conduct might be allowable under new attorney general guidelines [text, PDF] passed last year governing FBI investigations, which rights groups say open the door to racial and religious profiling [ACLU backgrounder]. Mueller's statement comes shortly after a May 25 Senate Judiciary Committee [official website] hearing on the oversight of the FBI [materials] where the bureau director was asked if mosques had been entered by FBI agents or informants. Mueller responded by saying that the agency focuses on individuals, not institutions.

In February, a man claimed [LA Times report] that he had been commissioned by the FBI to infiltrate several Orange County mosques. The informant had provided information to the agency regarding Ahmadulla Sais Niazi, a Muslim man accused of lying about his ties to al Qaeda. Last year, the FBI responded to criticism [press release] regarding alleged investigations into mosques and the Muslim community claiming that "the FBI [does not] have a surveillance program to monitor the constitutionally protected activities of houses of worship." Although Mueller has defended the new attorney general guidelines as a "necessary step" in fighting terrorism, the proposed guidelines were amended [JURIST reports] by the Justice Department last year before they came into effect to appease Congress and civil rights groups.






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Royal Dutch Shell reaches settlement over Nigeria activist deaths
Jay Carmella on June 9, 2009 8:20 AM ET

[JURIST] A $15.5 million settlement [press release] was reached Monday between Royal Dutch Shell PLC [corporate website] and the families of nine Nigerian activists who were killed in 1995. The settlement came [WSJ report] as the case was scheduled to go to trial in the US District Court for the Southern District of New York [official website]. Shell did not admit any wrongdoing in the deaths of the nine activists, which included Ken Saro-Wiwa, a well-known Nigerian activist and writer. Saro-Wiwa founded the Movement for the Survival of the Ogoni People [advocacy website]. An organization that is credited with assisting in ceasing oil production in Ogoniland. The plaintiffs brought the case in the US federal court system under the Alien Tort Claims Act (ATCA) [28 USC § 1350 text].

Shell has previously faced legal issues in Nigeria. In 2006, a Nigerian court ordered Shell to pay [JURIST report] $1.5 billion for its role in environmental damages that took place within the country. The ATCA gives US courts statutory authority to hear human rights cases brought against US companies by foreign citizens. In January, the US Court of Appeals for the Second Circuit [official website] reversed [JURIST report] a district court opinion, reviving two lawsuits brought by Nigerian families against Pfizer under the ATCA.






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Chrysler sale delayed temporarily by Supreme Court
Jay Carmella on June 9, 2009 7:07 AM ET

[JURIST] US Supreme Court [official website] Justice Ruth Bader Ginsburg [official profile, PDF] on Monday ordered [order, PDF] a temporary stay of the pending sale of Chrysler Group assets to Italian automaker Fiat [corporate websites]. The stay allows [NYT report] the full Court more time to decide whether it will hear the case. Two groups filed emergency requests [JURIST report] with the court over the weekend hoping to stop the sale. One group, which consists largely of union related organizations, alleged that the sale favors unsecured stockholders at the expense of secured stockholders and that the use of Troubled Asset Relief Program (TARP) funds is unconstitutional. The other group claimed that the sale would limit their ability to make products liability claims against Chrysler. The Obama administration filed a brief [text, PDF] Monday arguing that the TARP issue is beyond the reach of the courts. Chrysler and the United Auto Workers (UAW) [briefs, PDF] have also filed briefs in opposition. No timetable was set for the Court's decision.

Last week, the US Court of Appeals for the Second Circuit [official website] approved the sale [JURIST report] of most of the Chrysler Group's assets to Fiat, but said the deal could not be completed until the Supreme Court heard the matter. The ruling upheld a previous decision [opinion, PDF; JURIST report] by the US Bankruptcy Court for the Second District of New York [official website]. The other members of Detroit's "Big Three" automakers have also faced financial troubles recently. General Motors [corporate website] filed [JURIST report] for bankruptcy [petition, PDF] last week. Ford Motor Company [corporate website] is seeking to regain lost market share [WSJ report] while its domestic rivals are involved in bankruptcy proceedings.






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Supreme Court declines to review Pentagon 'Don't Ask Don't Tell' Policy
Eszter Bardi on June 9, 2009 6:55 AM ET

[JURIST] The US Supreme Court [official website] denied certiorari [order list, PDF] Monday in Pietrangelo v. Gates, in which the Court was asked to review the US military's "Don't Ask, Don't Tell" policy [10 USC § 654 text; HRC backgrounder], under which openly gay servicemen and women are subject to discharge. Petitioners requested that the Supreme Court review the First Circuit decision [opinion text] that upheld the policy to determine whether it violates their constitutional rights to substantive due process, equal protection, and freedom of speech [Cornell LII backgrounders]. The government's brief in opposition [text, PDF] to the petition for certiorari, however, reiterated that the petitioners' basis for the writ constituted only a facial challenge to the application of "Don't Ask, Don't Tell," and that the application of the policy did not trigger substantive due process violations since a legitimate government interest for the statute could be identified. Furthermore, the brief relied on the First Circuit's opinion that per Romer v. Evans and Lawrence v. Texas [opinion texts], rational basis was the appropriate standard of review, and under such standard, no equal protection violation was found, and that no free speech violations had occurred. The Human Rights Campaign [advocacy website], criticized [press release] the denial of certiorari and emphasized the need to repeal "Don't Ask, Don't Tell." The Servicemembers Legal Defense Network [advocacy website] said that the emphasis on repealing the law should be placed in Congress [press release], not the courts.

In upholding "Don't Ask, Don't Tell," the First Circuit held [JURIST report] that even if their decision were to result in a chilling effect on this type of speech, their analysis would remain the same. The First Circuit's decision stands in stark contrast to a ruling earlier this month by the US Court of Appeals for the Ninth Circuit, which held [PDF text; JURIST report] that a soldier could not be dismissed on the basis of sexual orientation alone.






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