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Legal news from Monday, June 15, 2009




EU and US agree on Guantanamo detainee transfer policies
Christian Ehret on June 15, 2009 3:00 PM ET

[JURIST] The Council of the European Union [official website] and the US jointly released a statement [text, DOC] Monday outlining the terms of agreement for EU countries planning to accept Guantanamo Bay [JURIST news archive] detainees. Affirming that the US is primarily responsible for the closure of the detention facility [JURIST news archive] and finding residences for former detainees, the EU welcomed recent actions taken by the US that include setting a date for closing the facility, reviewing various policies, increasing transparency about past practices, and eliminating secret detention facilities. The framework includes a US agreement to share all available intelligence and information, including that of a confidential nature, with a country considering accepting a detainee in order to allow the country to make "an informed decision and conduct a proper security assessment." The US and EU also agreed to maintain the exchange of relevant information after a detainee is transferred. The US also agreed to consider contributing funds to offset the costs incurred by EU member states in accepting former detainees on a case-by-case basis. The statement addresses the past and present relationship between the EU and the US:


The European Union and the United States share fundamental values of freedom, democracy, and respect for international law, the rule of law and human rights. We, the leaders of the European Union and the United States of America, refer to the longstanding tradition of humanitarian assistance that is shared by the European Union and its Member States and the United States of America, our commitment to security, and our deep and abiding friendship. Efforts to combat terrorism should be conducted in a manner that comports with the rule of law, respects our common values, and complies with our respective obligations under international law, in particular international human rights law, refugee law, and humanitarian law. We consider that efforts to combat terrorism conducted in this manner make us stronger and more secure.

The statement also addresses an intention for the EU and the US to continue working together to combat international terrorism and develop common policies, including semi-annual meetings with legal advisers from the Foreign Ministries of the EU member states and the US Department of State [official website] and representatives of the General Secretariat of the Council of the European Union and the European Commission [official website]. Also Monday, a spokesperson for Italian Prime Minister Silvio Berlusconi [official profile, in Italian] said that Italy would be willing to take in up to three detainees [AP report]. Italy had previously said that it was unwilling to accept detainees [JURIST report].

Last week, Council of Europe [official website] Human Rights Commissioner Thomas Hammarberg [official profile] sent a letter [text] to all member states urging them [JURIST report] to welcome certain released detainees. The commissioner's request followed an agreement [JURIST report] made earlier this month by the Council of the European Union, which set forth the terms of accepting detainees in a way that would minimize any danger posed to other member states. The council agreed that member states should only receive detainees who are officially cleared for release, do not face prosecution in the US, and have compelling reasons to not return to their home countries. In March, US officials met with leaders from the EU to discuss plans [JURIST report] to transfer detainees to European countries. Many countries have indicated their openness to accepting detainees, including Tunisia, Lithuania, Ireland, and Portugal [JURIST reports]. Other states have expressed reservations about accepting detainees, including Poland and Spain [JURIST reports], while the Netherlands [AFP report] has said it will not accept detainees.

8:00 PM ET - After meeting with US President Barack Obama, Berlusconi has agreed to accept three specific Guantanamo detainees [press conference transcript] into Italy.





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Supreme Court declines to hear US-Mexico border fence, 'Cuban Five' appeals
Jaclyn Belczyk on June 15, 2009 2:10 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday declined to review a challenge to the construction of a fence along the US-Mexico border [JURIST news archive]. The Court denied certiorari [order list, PDF] in County of El Paso, Texas v. Napolitano [docket; cert. petition, PDF], in which it was asked to consider whether the grant of authority to the secretary of the Department of Homeland Security (DHS) [official website] to "waive all legal requirements" necessary to ensure rapid construction of a border fence, with no provision for judicial review to test the statutory and factual basis of the secretary's waiver orders, is an unconstitutional delegation of legislative power. The Court denied certiorari on the same issue last year. The 700-mile US-Mexico border fence, authorized [JURIST report] in 2006 by then-president George W. Bush [official profile], has faced numerous legal challenges. Last month, a judge in the US District Court for the District of Columbia [official website] dismissed [opinion, PDF; JURIST report] a lawsuit against the DHS that sought to block construction of the fence. The Texas Border Coalition [advocacy website], a group of Texan officials and business owners, filed suit [JURIST report] last year challenging the condemnation of land for the construction of the fence and the compensation paid to landowners for access to conduct surveys under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [text], the Administrative Procedure Act [text, PDF], and the Due Process Clause of the Fifth Amendment [text].

Also Monday, the Court denied certiorari in Campa v. United States [docket; cert. petition, PDF], better known as the "Cuban Five" [advocacy website] case. The Court had been asked to consider whether the US Court of Appeals for the Eleventh Circuit applied an erroneous legal standard in holding that petitioners did not establish a right to a change of venue and whether a party's failure to use all of its peremptory strikes to strike all minority members of the jury per se precludes a prima facie challenge under Batson v. Kentucky [opinion text]. The men were convicted in 2001 of spying for Cuba and sentenced to 15 years in prison. They admitted they were Cuban spies, but said they were watching the activities of exile groups opposed to former Cuban leader Fidel Castro [BBC profile], rather than the US government. In 2005, the Eleventh Circuit ruled [opinion, PDF; JURIST report] that the trial in Miami was biased due to community prejudice and extensive media coverage. The government appealed that decision, and during a rehearing [JURIST reports] before the full appeals court, the defendants argued that "the pervasive community prejudice against the Cuban government and its agents and the publicity surrounding the trial that existed in Miami prevented them from obtaining a fair and impartial trial." The full federal appeals court upheld [opinion, PDF; JURIST report] the convictions.






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ICTY ex-spokeswoman contempt trial begins
Christian Ehret on June 15, 2009 1:22 PM ET

[JURIST] Former spokeswoman for the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] Florence Hartmann [publicity interview; ICTY materials, PDF] went on trial Monday to face accusations of contempt for allegedly publishing details of tribunal proceedings. Hartmann is specifically charged [press release; JURIST report] with contempt of the tribunal in violation of procedural Rule 77(A)(ii) [text, PDF] for "knowingly and willingly disclosing information in knowing violation of an order of a Chamber" and "interfering with the administration of justice." Hartmann, who published the book Peace and Punishment: The Secret Wars of Politics and International Justice [excerpts, PDF] in 2007, allegedly disclosed classified information relating to the tribunal's proceedings against Slobodan Milosevic [JURIST news archive] in her book and in an article. The information that was disclosed concerned decisions to not publicize documents [AP report] that might have aided Bosnia's efforts to hold Serbia liable for genocide following the Balkan conflicts [BBC backgrounder] in the early 1990s. At isue are minutes from Serbia's Supreme Defense Council, which allegedly implicate Belgrade for atrocities, given to the ICTY by Serbia for the sole purpose of the Milosevic trial. Hartmann's lawyer maintains that the information was previously disclosed by others and that a conviction would be limiting free speech. A Hartmann support group [advocacy website] has expressed concern [press release, DOC] that prohibiting the material to be published will burden Bosnian victims who have a right to challenge the "controversial deal between Serbia and the ICTY" and to revisit Serbia's responsibility. At an initial appearance, Hartmann did not enter a plea [JURIST report] and a plea of not guilty was entered on her behalf in November.

Hartmann formally served as the official spokesperson for chief ICTY prosecutor Carla del Ponte [BBC profile]. Before being indicted, Hartmann drew media attention by repeating allegations [JURIST report] that former US president Bill Clinton and former French president Jacques Chirac had planned a campaign [JURIST report] to capture Radovan Karadzic [BBC profile; JURIST news archive], but later backed down following a change in policy. Hartmann has also said that Russia aided in moving Karadzic to safety in Belarus, and alleged that the West helped in order to hide information about the Srebrenica massacre [BBC backgrounder; JURIST news archive].






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Cambodia genocide court rules ex-Khmer Rouge official detained unlawfully
Tere Miller-Sporrer on June 15, 2009 10:37 AM ET

[JURIST] The Extraordinary Chambers in the Courts of Cambodia (ECCC) ruled [decision, PDF; press release, PDF] Monday that former Khmer Rogue [BBC backgrounder] leader Kaing Guek Eav [TrialWatch backgrounder, JURIST news archive], also known as "Duch," has been detained unlawfully for the past 10 years, but denied a defense request for his release. The defense had requested the release for the duration of his trial in light of the fact that Duch had been illegally held by a Cambodian Military Court prior to being transferred to the ECCC's custody. Considering the need to balance the rights of the accused against the rights of the community:


The Chamber [found] that although the Accused's prior detention amounted to a clear violation of his rights, absent allegations of torture or serious mistreatment by the national authorities, this would appear insufficient to debar the exercise of the ECCC's discretion to order provisional detention.

The court also deemed "provisional detention necessary in order to ensure the presence of the Accused Person during the proceedings and for the protection of his security and the preservation of public order." Accordingly, Kaing's request for release was denied, although he has the right to sue for compensation if found innocent or to be credited with time served if found guilty.

In April, Kaing admitted to training prison staff to use torture [JURIST report]. He recently requested release to "safe house" [JURIST report] during his Cambodia genocide trial, though he lost a similar appeal [JURIST report] of his pre-trial detention in 2007. His trial is the first of eight [JURIST report] that the ECCC hopes to hear against former members of the Khmer Rouge, which has been accused of murdering 1.7 million Cambodians [PPU backgrounder] during its nearly four-year reign. The ECCC has long been plagued with accusations of corruption and inadequate funding, with greater problems in recent years. In March, the ECCC reported that it would be unable to pay its Cambodian employees [JURIST report] for that month, one year after the court had requested $114 million dollars from the UN [JURIST report].





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Supreme Court finds Alaska shipping tax unconstitutional
Jaclyn Belczyk on June 15, 2009 10:10 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] issued opinions in two cases Monday. The Court ruled [opinion, PDF] 7-2 in Polar Tankers v. City of Valdez [Cornell LII backgrounder; JURIST report] that a municipal tax that falls exclusively on large vessels in the city’s harbor violates the Tonnage Clause (Art 1 § 10 cl 3) of the US Constitution [text]. The city of Valdez, Alaska, imposes a tax on oil tankers and other large vessels using its port to pick up and deliver crude oil. The Alaska Supreme Court upheld [opinion, PDF] the tax. Reversing the opinion below, Justice Stephen Breyer wrote:

As far as we can tell, then, Valdez applies a value-based personal property tax to ships and to no other property at all. It does so in order to obtain revenue for general city purposes. The tax, no less than a similar duty, may (depending upon rates) "ta[x] the consumption" of those in other states. It is consequently the kind of tax that the Tonnage Clause forbids Valdez to impose without the consent of Congress, consent that Valdez lacks.
Justice John Paul Stevens filed a dissenting opinion, joined by Justice David Souter.

The Court ruled [opinion, PDF] unanimously in Nijhawan v. Holder [Cornell LII backgrounder, JURIST report] that convictions for mail, bank, and wire fraud qualify as an aggravated felony under the Immigration and Nationality Act (INA) [text], where the amount of loss caused was not determined by a jury. Breyer delivered the Court's opinion affirming the ruling [opinion, PDF] from the US Court of Appeals for the Third Circuit.





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Supreme Court takes student loan bankruptcy case
Christian Ehret on June 15, 2009 10:05 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in four cases. In United Student Aid Funds, Inc. v. Espinosa [docket; cert. petition, PDF], the Court will decide on the requirements for discharging student loan debt via bankruptcy proceedings. Specifically at issue is whether such a bankruptcy discharge can be obtained without proving "undue hardship" as required by 11 USC § 523 [text] and without commencing an adversarial proceeding as required by bankruptcy court rules. Petitioners appeal a decision [opinion, PDF] from the US Court of Appeals for the Ninth Circuit [official website], which held that student loans can be discharged within a Chapter 13 plan if the creditor receives notice of the plan and fails to object. The appellate-level decision found that creditors in the business of administering student loans are unlikely to be misled by customary bankruptcy procedures and "crafty student debtors," ruling that bankruptcy courts have "no business" interfering in such procedures.

In Stolt-Nielsen S.A. v. AnimalFeeds International Corp. [docket; cert. petition, PDF], the Court will decide if imposing class arbitration on parties when that issue is silent in their arbitration clauses is consistent with the Federal Arbitration Act [9 USC § 1-14 text]. The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] that construing the arbitration clause to permit class arbitration "did not manifestly disregard the law" because the parties specifically agreed that the arbitration panel would decide on the scope of the clause and, therefore, the panel did not exceed its authority.

In the combined cases of Mac's Shell Service, Inc. v. Shell Oil Products Co. [docket; cert. petition, PDF] and Shell Oil Products Co. v. Mac's Shell Service, Inc. [docket; cert. petition, PDF], the Court will consider whether a service station operator can bring a constructive termination action under the Petroleum Marketing Practices Act [15 USC § 2801-2806 text] when the operator continues to run the franchise with the same trademark, fuel, and premises. Additionally, the Court will decide on the requirements for constructive non-renewal of a franchise-franchisee agreement under the Act. The US Court of Appeals for the First Circuit [official website] affirmed [opinion text] a district court ruling that a franchise may recover for constructive termination even if it continues to use the same trademark, fuel, and premises. The First Circuit additionally reversed the district ruling on constructive non-renewal of an agreement, holding that a franchisee faced with an unlawful lease has to either sign the lease and forgo any potential actions under the Act or refuse to sign and bring a challenge to it after receiving a notice of non-renewal. In an amicus brief [text, PDF] requesting certiorari, the US Solicitor General [official website] contests the First Circuit's ruling on constructive termination and agrees with that court's ruling against constructive renewal.

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection [docket; cert. petition, PDF], the Court will determine the constitutional scope of states' authority to modify property boundaries without a judicial hearing. At issue is the due process permissibility of Florida's restoration of storm-eroded beaches by modifying private property boundaries under their Beach and Shore Preservation Act [text]. The appeal follows a Supreme Court of Florida [official website] ruling [opinion, PDF] that the legislation in question does not unconstitutionally deprive upland owners of littoral rights without just compensation, confining their judgment to the context of eroded beaches only. Littoral rights concern the use and enjoyment of ocean, sea, or lake shores.






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Yemen denies plans to transfer Guantanamo detainees to Saudi Arabia
Jaclyn Belczyk on June 15, 2009 9:01 AM ET

[JURIST] The government of Yemen denied Sunday that it had reached an agreement with the US to transfer nearly 100 Yemeni Guantanamo Bay detainees to Saudi Arabia [JURIST news archives] for rehabilitation. According to a statement from the Yemen Ministry of Foreign Affairs, the Yemeni government is still negotiating with the US to return the detainees to Yemen [Yemen Observer report]. Sunday's statement comes just days after the Wall Street Journal reported [text] Thursday that the US was close to a deal with Yemen to send the detainees to Saudi Arabia. Yemeni detainees account for nearly half of the 229 detainees remaining at Guantanamo Bay, and the US is reluctant to return them to Yemen for fear they would rejoin terrorist groups.

Last week, the US Department of Justice (DOJ) [official website] announced [press release] that three Guantanamo Bay detainees had been transferred to Saudi Arabia, their country of origin, where they will undergo judicial review and rehabilitation. US Secretary of Defense Robert Gates [official profile] said last month that the US would continue efforts to reach an agreement to transfer the Yemeni detainees to Saudi Arabia for rehabilitation, despite reports [JURIST reports] that two former prisoners have rejoined al Qaeda in Yemen. The Saudi program to rehabilitate Islamic extremists was designed with input from psychiatrists, sociologists, and Muslim clerics. The Saudi Minister of Interior [official website] reports that only nine of the 218 men who have undergone rehabilitation have been rearrested.






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Vietnam human rights lawyer arrested for subversion
Christian Ehret on June 15, 2009 8:35 AM ET

[JURIST] Prominent Vietnamese pro-democracy lawyer Le Cong Dinh was arrested Saturday by Vietnam forces for allegedly conspiring against the government, according to state media. Dinh was charged [Nhan Dan report] with "colluding with foreign reactionaries to sabotage the Vietnamese State," in violation of Article 88 [text] of the Vietnamese penal code, for the alleged distribution of anti-government documents. The penal code provides that such a violation can be punishable by three to 12 years imprisonment. The government has accused Dinh of publishing documents [Thanh Niem report] that distorted the laws of the Communist Party and the state, calling for a change in leadership, and libeling current leaders including Prime Minister Nguyen Tan Dung [BBC profile]. According to state media, Dinh had become involved with the People's Action Party and the Democratic Party of Vietnam [party websites], allegedly planning to overthrow the communist government in the year 2010. Authorities additionally claim that Dinh and his cohorts wrote a new constitution for the country to replace the current one.

Dinh, who became well-known after defending Vietnamese interests in a catfish trade dispute [BBC report] with the US, has represented several pro-democracy and human rights advocates in the past, including other lawyers charged with subversion. Restrictions on expression have become a recurring issue in Vietnam. Earlier this year, two Vietnamese newspaper editors were dismissed from their jobs for protesting the arrests of two journalists [JURIST reports] who reported on government corruption. The arrested reporters, who were accused of 'abusing freedom and democracy,' were sentenced to two years of prison and "re-education" for reporting on the so-called PMU 18 corruption scandal [JURIST reports].






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