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Legal news from Friday, June 12, 2009

DOJ seeks state secrets case rehearing
Christian Ehret on June 12, 2009 3:40 PM ET

[JURIST] The US Department of Justice (DOJ) [official website] filed a brief [text, PDF] Friday to petition the US Court of Appeals for the Ninth Circuit [official website] to rehear a state secrets privilege [JURIST news archive] case en banc. A three-judge panel for the Ninth Circuit previously ruled [opinion, PDF; JURIST report] that the state secrets privilege does not bar a lawsuit against a company that allegedly provided logistical support for CIA rendition [JURIST news archive] flights. The suit was brought by plaintiffs Binyam Mohamed [Repreive profile; JURIST news archive], Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher al-Rawi, who alleged that Boeing subsidiary Jeppesen Dataplan [corporate website] knowingly supported direct flights to secret CIA prisons, facilitating the torture and mistreatment of US detainees. In 2007, the DOJ intervened before the defendant filed an answer, maintaining that the lawsuit posed a risk to national security. The appellate court overturned the lower court's dismissal of the case, ruling that the state secret privilege must be based on actual evidence in the case, not on what evidence might be involved. In their petition for a full court rehearing, the government argued that:

This is one of those few cases warranting review by the Court en banc. The panel has significantly altered the contours of the military and state secrets privilege – a constitutionally-based means by which the Executive protects critical national security information from disclosure. The panel's approach is flatly inconsistent with decisions of the Supreme Court, this Court, and this Court's sister circuits on questions of exceptional importance applying the privilege. We emphasize that the Government's request for en banc review is based upon the most careful and deliberative consideration, at the highest levels, of all possible alternatives to relying upon the state secrets privilege.
The government also cited recent comments [text; JURIST report] by President Barack Obama to argue that, while the US will not invoke the privilege to prevent disclosure of "the violation of a law or embarrassment to the government," the privilege is necessary to protect national security. The Constitution Project [advocacy website] expressed dismay [press release] over the en banc request, saying that the:
decision to continue to press its overly-expansive state secrets claim undermines the new administration's commitment to transparency, accountability and the rule of law. We are very disappointed by the Department of Justice's continued assertion of the Bush administration interpretation of the privilege as an immunity doctrine. The Ninth Circuit's decision in April properly recognized the critical role of courts in checking executive branch secrecy claims. The bedrock of our nation's government is a system of checks and balances - a system that is undermined by the overbroad version of the state secrets privilege asserted by the Obama administration.
Last week, the US House Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Civil Liberties [official website] heard testimony [materials] on the state secrets privilege in advance of consideration of the State Secret Protection Act [HR 984 text] that would reform the assertion of the privilege. In February, the Obama administration reasserted the state secret privilege [JURIST report] in this case, drawing criticism from advocacy groups including the ACLU. On the same day, Attorney General Eric Holder [official profile] ordered a review of all government claims invoking the state secrets privilege. The state secrets privilege was regularly invoked by the Bush administration to block lawsuits over controversial anti-terrorism programs, including warrantless surveillance [JURIST news archive]. In September, a secrecy "report card" [text, PDF; JURIST report] released by OpenTheGovernment.org [advocacy website] revealed that the Bush administration invoked the state secrets privilege "45 times — an average of 6.4 times per year in 7 years (through 2007) — more than double the average (2.46) in the previous 24 years."

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Congress gives final approval to tobacco regulation bill
Christian Ehret on June 12, 2009 2:27 PM ET

[JURIST] The US House of Representatives [official website] on Friday approved the Family Smoking Prevention and Tobacco Control Act [HR 1256 materials], which attempts to safeguard the public by granting the Food and Drug Administration (FDA) [official website] certain authority to regulate tobacco products, among other provisions. Passed by a vote of 307-97, the legislation will heighten warning-label requirements, prohibit marketing "light cigarettes" as a healthier alternative, and allow for the regulation of cigarette ingredients. Under the bill, the FDA will have the authority to regulate tobacco products but will not permit the agency to regulate tobacco leaf that is not in the hands of tobacco product manufacturers or producers of tobacco leaf, including tobacco growers, tobacco warehouses, or tobacco grower cooperatives. The bill was approved by the Senate [official website] on Thursday by a 79-17 vote. US Department of Health and Human Services [official website] Secretary Kathleen Sebelius [official profile] addressed the importance of the bill [press release], calling it a "key part of our plans to cut health care costs and reduce the number of Americans who smoke." Following the passage of the bill, US President Barack Obama [official profile] expressed his approval of the measure:

This bill has obviously been a long time coming. We've known for years, even decades, about the harmful, addictive, and often deadly effects of tobacco products. Each year Americans pay nearly $100 billion in added health care costs due to smoking. Each day about a thousand young people under the age of 18 become regular smokers. For over a decade, leaders of both parties have fought to prevent tobacco companies from marketing their products to children, and provide the public with the information they need to understand what a dangerous habit this is. And after a decade of opposition, all of us are finally about to achieve the victory with this bill, a bill that truly defines change in Washington.

Obama additionally expressed his eagerness to sign the bill, thanking the members of the House and Senate for swiftly passing it in a bipartisan way.

The bill was initially passed [JURIST report] by the House in April before being amended. Last year, the House Energy and Commerce Committee [official website] voted 38-12 to approve the bill [JURIST report]. At the time, supporters said the bill would help to inform the public of the risks of smoking and make cigarettes safer. Opponents criticized the legislation, saying it could give the public a false sense of security about smoking and that the FDA might not be able to handle the burden of regulation. The US Senate Health, Education, Labor and Pensions Committee [official website] approved a similar bill [JURIST report] in August 2007. Shortly before that, former FDA Commissioner Dr. Mark McClellan said that the FDA lacked the resources [JURIST report] to handle tobacco regulation. The FDA first began to regulate the tobacco industry in 1996, but in 2000 the Supreme Court ruled in FDA v. Brown & Williamson Tobacco Corp. [opinion text] that Congress had not provided the FDA with the authority to regulate tobacco products.

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Greece judges order officers to stand trial for killing that sparked protests
Jaclyn Belczyk on June 12, 2009 2:23 PM ET

[JURIST] A Greek council of judges in Athens on Friday ordered two police officers to stand trial for the murder of 15-year-old Alexis Grigoropoulos [BBC report] that sparked violent protests in December. Officer Epameinonta Korkonea, who is accused of shooting Grigoropoulos, is charged with intentional murder [Ta Nea report, in Greek], and Basil Saralioti is charged with complicity. The judges also ordered that the two accused officers remain in custody [Eleftherotypia report, in Greek] for another six months. The officers claim that they did not intend to kill [AP report] Grigoropoulos and that he was struck by a stray bullet after they fired a warning shot. Reports indicated that Grigoropoulos and other youth were throwing stones at a police car and that the police believed he was throwing explosives. No trial date has been set. The men face up to life in prison if convicted.

In March, Amnesty International (AI) [advocacy website] said that Greek authorities were not doing enough to ensure that the nation's police respect human rights [JURIST report], and urged the government to investigate and address "long-standing problems of policing." AI said allegations of human-rights abuses, including torture, the use of excessive force, arbitrary detentions, and denial of prompt legal assistance, continue to be lodged against Greek police. Earlier that month, the Greek government said that it would revamp its police force [JURIST report] in light of the riots. Demonstrations and riots protesting the shooting took place for weeks after Grigoropoulos' death. The Greek police have been accused of being both ineffective and unnecessarily violent [JURIST op-ed] in their response to the protests.

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Bosnia court sentences former army commander for 1995 shelling
Christian Ehret on June 12, 2009 12:25 PM ET

[JURIST] The Court of Bosnia and Herzegovina on Thursday sentenced [press release] a former Bosnian Serb army commander to 25 years imprisonment for ordering an attack that killed 71 and wounded 150. Novak Djukic was charged [indictment, PDF; JURIST report] with war crimes against civilians under Article 173 of the Bosnia and Herzegovina Criminal Code [text, PDF] for ordering his artillery unit to launch mortars into a UN-designated safe zone in 1995. One of the mortars hit the center of the town of Tuzla, known as Kapija, where there were only civilians present. Djukic was additionally charged with violations of international law for his role in the attack.

Djukic commanded the Republika Srpska Army [UN backgrounder] in the Tuzla region during the Bosnian war [JURIST news archive] and was arrested [JURIST report] in November 2008. His indictment was originally issued by the War Crimes Chamber [HRW backgrounder] of the court, which was set up to alleviate the caseload of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] and will continue to hear cases as the ICTY winds down in 2010.

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Myanmar court delays Suu Kyi trial to allow witness testimony
Christian Ehret on June 12, 2009 11:46 AM ET

[JURIST] The Myanmar court conducting the trial of pro-democracy activist Aung San Suu Kyi [BBC profile; JURIST news archive] has delayed the proceedings for at least two weeks, according to Friday media reports. Suu Kyi's lawyers requested the delay [AP report] to allow defense witness and legal expert Khin Moe Moe to testify and explain why the charges against the Nobel Laureate are politically motivated. The trial is set to resume June 26. The Myanmar Supreme Court accepted an appeal [Reuters report] on Thursday contesting the Yangon District Court decision to reject other defense witnesses [JURIST report], setting the appellate hearing for June 17. Suu Kyi faces charges of violating the terms of her house arrest for allowing an American to stay with her after he swam across a lake to visit. Her arrest was controversial and highly criticized [JURIST report] by the international community.

Suu Kyi, the leader of the National League for Democracy, has spent 12 of the past 18 years in prison or under house arrest for alleged violations of an anti-subversion law [text, PDF]. News of Suu Kyi's trial has been met with criticism from numerous agencies and governments around the world. Human Rights Watch (HRW) [advocacy website] has called the charges [HRW report] against Suu Kyi, "trumped up." US President Barack Obama has called for the immediate release [JURIST report] of Suu Kyi.

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Bermuda decision to take Uighurs beyond territorial powers: UK
Jaclyn Belczyk on June 12, 2009 11:23 AM ET

[JURIST] The UK Foreign and Commonwealth Office (FCO) [official website] on Thursday criticized Bermuda Premier Ewart Brown [party profile] for failing to consult with London before agreeing to accept four Uighur Guantanamo detainees [JURIST report]. Bermuda is a UK territory, and although it is self-governing, the UK remains responsible for matters of foreign policy and security. Bermuda considered accepting the Uighurs to be an immigration issue, which is within their jurisdiction. A spokesperson for the FCO said that Bermuda should have consulted with the UK [BBC report] but that Britain will now help the Bermudan government to conduct a security assessment of the detainees. Also Thursday, Bermudan opposition leaders criticized [Royal Gazette report] the decision to accept the detainees, calling them potentially dangerous. Then men will be allowed to live and work freely in Bermuda and may eventually be allowed to pursue citizenship.

Thirteen Uighurs still remain in US custody at Guantanamo. The Uighurs' release was ordered [opinion and order, PDF; JURIST report] by a US district court in October, but that decision was overturned [opinion, PDF; JURIST report] in February by the US Court of Appeals for the DC Circuit [official website]. They have appealed [JURIST report] to the US Supreme Court [official website]. If the remaining Uighurs are transferred before the Court decides to hear their case, it will likely be dismissed as moot. On Wednesday, Palau President Johnson Toribiong said that his government had reached an agreement with the US to accept [JURIST report] all 17 Uighur detainees. US officials said later that no final agreement had been reached. On Thursday, Torigiong said that the offer was motivated by human rights concerns [JURIST report] and not by the Chinese government's reaction. Also Thursday, the Chinese government again demanded the repatriation of the Uighurs. The Chinese maintain that the Uighurs are members of 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. The US has previously rejected China's calls to repatriate [JURIST report] the Uighurs, citing fear of torture upon their return.

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Second Circuit allows government to continue withholding detainee photos
Christian Ehret on June 12, 2009 10:21 AM ET

[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled Thursday that the US government can continue to withhold photos of alleged detainee abuse while it awaits a response from the US Supreme Court [official website]. The appellate-level decision followed a recent Supreme Court order [JURIST report] granting the government a 30-day extension to appeal a ruling mandating the release of the controversial photos, setting the new deadline to July 9. In requesting that the mandate be recalled [motion, PDF; JURIST report], the government filed partially secret statements [AP report] from US generals David Petraeus and Ray Odierno. In his statement [text] warning against releasing the photos, Odierno referred to the 2004 release of photos from Abu Ghraib prison and the violence that likely resulted from them. Odierno maintained that the release of the photos in question would not only endanger military personnel, but also negatively affect US-Afghanistan relations. Congress is currently considering legislation [S 1100 materials] that would exempt the disclosure of certain photographs under the Freedom of Information Act (FOIA) [text] in cases where the secretary of defense certifies that such disclosure would endanger US personnel. Although the proposed FOIA amendment was already agreed to by the Senate [Senate record, PDF] as an amendment to the Supplemental Appropriations Act [S 1054 materials, PDF], Congress has tentatively agreed [NYT report] to a version of the spending bill that does not include the prohibitive measures.

Recently, former US Major General Antonio Taguba said that the photographs of detainee abuse at Abu Ghraib prison depict acts of rape and sexual assault [JURIST report]. The Pentagon has denied [Reuters report] the allegations. In May, US President Barack Obama decided to seek a delay [JURIST report] of the release of the photographs in question, contrary to a previous agreement by the DOJ to release them pursuant to a court order [order, PDF]. The original district court order resulted from a FOIA challenge [ACLU materials] brought by the American Civil Liberties Union [advocacy website] against the Department of Defense. The US Court of Appeals for the Second Circuit [official website] affirmed the order in April.

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Supreme Court denies Conrad Black bail request
Christian Ehret on June 12, 2009 8:29 AM ET

[JURIST] The US Supreme Court [official website] on Thursday denied bail [opinion, PDF] to Canadian-born media mogul Conrad Black [CBC profile; JURIST news report], leaving him the option of filing a request in district court. The one-page denial was issued by Justice John Paul Stevens [official profile, PDF] in response to Black's recent request for bail pending appeal [JURIST report]. In their request [JURIST report], Black's lawyers argued that Black poses no danger to the community, is unlikely to flee and has a legitimate appeal not brought for the purposes of delay. Additionally, the request points out that co-petitioner John Boultebee was granted bail based on the same "substantial question of law or fact." The US government opposed the request [reply, PDF] on the grounds that a ruling in Black's favor on the question presented is "not likely to result in reversal of all his convictions or a prison sentence shorter than the time it will take the court to issue its decision." Federal law [18 USC § 3143 text] stipulates that a defendant is entitled to bail if the "substantial question of law or fact" is likely to result in reversal, a new trial, a sentence without imprisonment or a reduced jail sentence. In a strongly worded response [reply, PDF] to the government's reply, Black's lawyers emphasized that the only difference between their case and Boultebee's is the additional obstruction of justice charge, arguing that the government cannot carry the burden of proving that the "error in the fraud counts was harmless as to the obstruction conviction."

Black is currently awaiting his appeal to be heard following the Court's recent grant of certiorari [JURIST report] to determine if the "honest services" clause of 18 USC § 1346 [text] applies in mail and wire fraud cases where there is no finding that the defendant "reasonably contemplated identifiable economic harm," calling into question the jury question from the lower court. Black, former chairman of Hollinger International [NNDB profile], originally faced 17 counts of fraud, obstruction of justice, racketeering and tax evasion. He was accused [indictment, PDF] by the US government of diverting more than $80 million from the company and its shareholders [JURIST report] during Hollinger's $2.1 billion sale of several hundred Canadian newspapers. In 2007, Black was convicted [JURIST report] of mail fraud and obstruction of justice and sentenced [JURIST reports] to 78 months in prison. The US Court of Appeals for the Seventh Circuit [official website] initially rejected Black's appeal, holding that § 1346 may be applied in a private setting [opinion, PDF; JURIST report] regardless of whether the defendant's conduct risked any foreseeable economic harm to the victim.

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Sri Lanka has failed to redress human rights violations: rights group
Benjamin Hackman on June 12, 2009 8:27 AM ET

[JURIST] The government of Sri Lanka [JURIST news archive] has failed for the past two decades to redress alleged human-rights violations such as torture, enforced disappearances, and extrajudicial killings, according to an Amnesty International (AI) [advocacy website] report [text, PDF] published Thursday. As early as 1991, the UN Working Group on Enforced or Involuntary Disappearances [official website] had received more than 15,000 reports of enforced disappearances, according to AI's report, which also says the Sri Lankan government has not seriously tried to address alleged human rights abuses. AI called for the establishment of an international commission [news release] to investigate allegations of international human rights law abuses made against the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive]. AI also urged the UN to use the Office of the High Commissioner for Human Rights [official website] to investigate reported violations.

Last week, UN Secretary-General Ban Ki-moon [official website] asked [transcript; JURIST report] Sri Lanka's government to conduct a "proper investigation" of any "credible allegations of violations of humanitarian law" arising from the recent conflict between the government and the LTTE that ended last month with the military collapse of the Tigers and the killing of its leaders. 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.

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Netherlands terror prosecutions rarely result in convictions: report
Matt Glenn on June 12, 2009 8:25 AM ET

[JURIST] Of 113 terrorism cases in the Netherlands [JURIST news archive] between September 11, 2001 and 2008, only 27 have led to convictions according to a report [NRC report] Thursday in the NRC Handelsblad [media website]. The report states that some of those convictions have been overturned on appeal. The conviction rate for terror crimes, which are prosecuted under the 2004 Crimes of Terror Act [text, DOC] is much lower than that of other crimes. The report also revealed that it is likely that at least two-thirds of those arrested on terror charges in the Netherlands are never prosecuted. The Dutch Public Prosecutors Office responded that the primary goal in terror investigations is to prevent an attack so the government must act quickly, while in other situations it has time to wait and gather evidence. In May, it was reported [BBC report] that of all those arrested on terror charges in the UK since 2001, 56 percent were never charged with a crime, and just under 13 percent were convicted. A report from the US State Department [official website] released last week revealed [text] that of 257 terror cases it had tracked in the US since 2001, 160 had been resolved by the end of 2007 and 145 of those had ended in guilty pleas or convictions.

The Netherlands has not experienced a large-scale terrorist attack. In October, a court of appeals extended the prison sentence [JURIST report] of a group of Dutch terrorists who were convicted [JURIST report] in 2006 of planning to attack Dutch politicians and government facilities. Ringleader Samir Azzouz was acquitted in 2005 of participating in a terrorist conspiracy [JURIST report]. The acquittal was met with public outcry, and Dutch legislators adopted more stringent anti-terror measures [JURIST report]. Last January, Dutch Parliamentarians demanded more reforms [JURIST report] to anti-terror laws after the Hague Appeals Court overturned [JURIST report] the convictions of a group seven men accused of being in a terrorist network. Included in that group was Mohammed Bouyeri, who confessed [JURIST report] to the 2004 killing of Dutch filmmaker Theo van Gogh.

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Kosovo war crimes going unpunished 10 years later: rights group
Matt Glenn on June 12, 2009 7:20 AM ET

[JURIST] Many human rights abuses that occurred during the war in Kosovo [USDOS backgrounder] have gone uninvestigated and unpunished, Amnesty International (AI) [advocacy website], told [DW report] Deutsche Welle [media website] Wednesday, which was the 10-year anniversary of the conflict's end. An AI report [text, PDF] released earlier this week found that, as of April, nearly 2,000 people remain unaccounted for from the conflict. AI said:

Ten years after the end of the war in Kosovo impunity for enforced disappearances and abductions remains one of the most serious violations of human rights arising from the armed conflict and its aftermath. Enforced disappearances constitute a crime and, in certain circumstances defined in international law, a crime against humanity or a war crime.

AI places the responsibility for the lack of investigation on the Serbian government, the UN Mission in Kosovo, the North Atlantic Treaty Organization (NATO), and the International Criminal Tribunal for the former Yugoslavia [official websites]. The report called for the governments of Kosovo and Serbia, as well as the international community, to attempt to identify remains and grave sites of victims and to ensure thorough and impartial investigations of the crimes. On Thursday NATO announced it would begin withdrawing troops [AFP report] from Kosovo, with plans to go from nearly 14,000 troops currently there to 10,000 by January.

Prosecutors have secured several convictions for conduct during the war. In April, four Serbian former police officers were convicted [JURIST report] of killing 48 Albanian civilians during the conflict. In October, former policeman Vaso Todorovic was convicted of crimes against humanity [JURIST report] for the capture and detention of 40,000 Bosnian Muslims in 1995. Earlier that month, four Bosnian Serbs were arrested for the killing [JURIST report] of 200 civilians in Koricanske Stijene. In 2006, former parliamentary leader Momcilo Krajisnik was sentenced to 27 years in prison [JURIST report] for the forced transfer, deportation, and persecution of non-Serbs. His sentence was later reduced to 20 years [JURIST report].

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Peru congress suspends controversial indigenous land laws
Ximena Marinero on June 12, 2009 6:20 AM ET

[JURIST] The Peruvian Congress [official website, in Spanish] voted Wednesday to suspend controversial land laws [press release, in Spanish] for 90 days, in an effort to quell indigenous protests that led to a violent clash [NACLA backgrounder; El Pais report, in Spanish] last week when police attempted to disperse groups blocking access routes. Peruvian Prime Minister Yehude Simon [official profile, in Spanish] announced [press release, in Spanish] Thursday that negotiations with indigenous groups over the controversial land usage laws pertaining to the Amazon region will continue without the largest indigenous organization. Simon said that the Dialogue Committee will proceed instead with only local indigenous leaders to review legislative decree 1090, the Forest and Wild Fauna Law [text, PDF, in Spanish] and legislative decree 1064, establishing the legal framework for agricultural land usage [text, PDF, in Spanish]. The organization excluded from negotiations, the Interethnic Association for the Development of the Peruvian Jungle (AIDESEP) [advocacy website], represents more than 60 tribes and more than 1300 communities of indigenous people. AIDESEP charges that the laws violate the International Labor Organization Convention No. 169, to which Peru is subscribed, and which stipulates in Article 6 that governments must, "[c]onsult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly." AIDESEP leader Alberto Pizango faces an order of arrest [Reuters report] for charges accusing him of responsibility for the violent protests, and is currently awaiting safe transfer at the Nicaraguan embassy as he has been granted asylum by the Nicaraguan government. The Office of the Public Defender has challenged the constitutionality [press release, PDF, in Spanish] of legislative decree 1064 in the Constitutional Court [official website, in Spanish], and has published its own report [text, PDF, in Spanish] on the Bagua incident.

Peruvian President Alan Garcia [official website, in Spanish] decreed the controversial laws under powers to implement a free trade agreement with the US. The laws would open Amazon land to development by international companies. In November 2008, Simon declared a state of emergency [JURIST news report] when violence broke out amidst indigenous protests over a new law reducing revenue to the province from local mining operations. In August 2008, protests over a controversial law [JURIST report] that reduced the majority by which a tribe must agree to sell communal land to oil and natural gas companies led the Peruvian government to declare a state of emergency over widespread indigenous protests.

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

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