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Legal news from Wednesday, June 17, 2009

Rwanda genocide tribunal begins retrial of ex-army officer
Jaclyn Belczyk on June 17, 2009 3:49 PM ET

[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] on Wednesday began the retrial [press release] of former Rwandan army officer Tharcisse Muvunyi [ICTR case materials]. In August, the ICTR quashed [JURIST report] Muvunyi's 25-year prison sentence, ruling that there was insufficient evidence for his conviction on charges of genocide and crimes against humanity. He now faces a retrial on a charge of inciting genocide. Prosecutors plan to present their case in three days and call five witnesses.

Muvunyi is accused [indictment, PDF] of participating in several public meetings during the months of April and May 1994, during which he and other local government officials allegedly called on the Hutu majority population to kill Tutsi civilians. Muvunyi, the former Commander of a Rwandan military school, was convicted [judgment and sentence, PDF; JURIST report] in September 2006 for his role in the ethnic separation and subsequent killing of orphaned children and the killing of at least 140 students and Red Cross workers. The ICTR was established to try genocide suspects for crimes occurring during the 1994 Rwandan conflict [HRW backgrounder] between Hutus and Tutsis in which approximately 800,000 people, primarily Tutsis, died. In March, UN Secretary General Ban Ki-Moon [official profile; JURIST news archive] pledged his ongoing support [JURIST report] for the ICTR and stressed that the international community must continue to combat genocide.

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Obama proposes broad financial regulations to increase confidence
Devin Montgomery on June 17, 2009 2:51 PM ET

[JURIST] US President Barack Obama [official website] proposed a broad series of financial regulatory reforms [white paper, PDF; statement] Wednesday intended to reestablish stability and confidence in the US financial system. The plan calls for the expansion of Federal Reserve [official website] regulatory powers to cover both bank and non-bank financial institutions, for the Reserve to oversee payment, clearance, and settlement systems of financial markets, and for increased accountability measures for when the Reserve exercises its emergency lending powers. The plan also calls for the creation of a Financial Services Oversight Council of financial regulators to coordinate regulatory agency efforts, as well as the creation of a National Bank Supervisor to oversee nationally-chartered banks. It calls for the creation of a Consumer Financial Protection Agency to protect consumers against unfair or deceptive practices by financial institutions, and finally the standardization of international financial regulations. Justifying the need for such drastic changes, Obama said that government regulators had to take a broad approach to prevent the build up of the kind of accumulated risk that lead to the current economic downturn:

While this crisis had many causes, it is clear now that the government could have done more to prevent many of these problems from growing out of control and threatening the stability of our financial system. Gaps and weaknesses in the supervision and regulation of financial firms presented challenges to our government’s ability to monitor, prevent, or address risks as they built up in the system. No regulator saw its job as protecting the economy and financial system as a whole.

Existing approaches to bank holding company regulation focused on protecting the subsidiary bank, not on comprehensive regulation of the whole firm. Investment banks were permitted to opt for a different regime under a different regulator, and in doing so, escaped adequate constraints on leverage. Other firms, such as AIG, owned insured depositories, but escaped the strictures of serious holding company regulation because the depositories that they owned were technically not “banks” under relevant law.

We must act now to restore confidence in the integrity of our financial system. The lasting economic damage to ordinary families and businesses is a constant reminder of the urgent need to act to reform our financial regulatory system and put our economy on track to a sustainable recovery. We must build a new foundation for financial regulation and supervision that is simpler and more effectively enforced, that protects consumers and investors, that rewards innovation and that is able to adapt and evolve with changes in the financial market.
Many of the proposed changes would have to be approved by Congress before taking effect, and initial House of Representatives hearings on the changes are planned for next week [WP report].

In March, US Treasury Secretary Timothy Geithner [official profile] indicated that the Department of the Treasury [official website] would propose stronger rules [prepared remarks; JURIST report] in response to the current economic crisis, and called for both the Reserve and Treasury to be given broader powers. In February, Geithner had emphasized increasing restrictions on financial institutions [press release, JURIST report] receiving government assistance.

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House subcommittee questions Uighur terrorist classification
Christian Ehret on June 17, 2009 2:22 PM ET

[JURIST] A US House of Representatives [official webpage] subcommittee questioned why a group of Chinese Muslims known as Uighurs [JURIST news archive] is classified as a terrorist organization during a hearing [materials] Tuesday. The House Committee on Foreign Affairs Subcommittee on International Organizations, Human Rights and Oversight [official website] heard testimony on why the East Turkestan Islamic Movement (ETIM) [CFR backgrounder] militant group, which has been blamed for 162 deaths, has been classified as a terrorist organization since 2002. Criticizing US authorities for overly relying on questionable Chinese intelligence in their classification, Representative Bill Delahunt (D-MA) [official website] accused China of "conflat[ing] peaceful, civil disobedience and dissent with violent terrorist activity" on behalf of the Uighurs. China maintains that the Uighurs held at Guantanamo Bay [JURIST news archive] belong to the ETIM, an accusation that is disputed by the Uighur detainees and US authorities. Delahunt maintained that returning the Uighurs to China would be a "one way ticket to the death penalty" and addressed China's classification of the group:

the communist Chinese government has used the war on terror as a means to avoid criticism as they broomly persecuted and repressed the Uighur minority.

The charge that the Uighurs at Guantanamo were terrorists, were predicated on an unsubstantiated claim that they were somehow affiliated with this group.
Delahunt referred to a House resolution [HR 497 text] from the 110th Congress that called for China to stop the religious suppression directed against the Uighur people, saying that China "manipulated the strategic objectives of the international war on terror to increase their culture, linguistic and religious suppression of the Muslim population residing in the Uighur autonomous region."

Last week, four of the Uighurs being held at Guantanamo Bay were transferred to Bermuda [JURIST report]. Thirteen remain at the detention facility, although they have been cleared of wrongdoing. 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. Last week, Palau President Johnson Toribiong said that his government had reached an agreement with the US [JURIST report] to accept all 17 Uighur detainees. US officials said later that no final agreement had been reached. Also last week, Torigiong said that the offer was motivated by human rights concerns [JURIST report] and not by the Chinese government's reaction. Although the Chinese government has demanded the repatriation of the Uighurs, the US has rejected such requests [JURIST report], citing fear of torture upon their return.

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Federal judge tentatively approves military lawyers representing Guantanamo detainee
Christian Ehret on June 17, 2009 12:08 PM ET

[JURIST] A federal judge said Tuesday that former Guantanamo Bay [JURIST news archive] detainee Ahmed Ghailani [GlobalSecurity backgrounder; JURIST news archive] can be represented by his military lawyers in civilian court, pending the approval of superior officers. US District Judge Lewis Kaplan, who said he expected the representation to be approved, asked the US Department of Defense [official website] to make their decision within a week [Reuters report]. Kaplan's approval followed a request made by Ghailani to have military lawyers Colonel Jeffrey Colwell and Major Richard Reiter continue representing him. JURIST Forum [media website] contributing editor and law professor Victor Hensen [academic profile] told JURIST Wednesday that it is rare for military lawyers to represent defendants in a civilian court and ventured that superior officers would not approve the representation. On Tuesday Kaplan also urged government officials [AP report] to decide with haste whether they will seek the death penalty in the case if Ghailani is convicted of conspiracy, estimating that the trial will take place next year.

Ghailani, who faces charges for his alleged involvement in the 1998 bombings of US embassies [PBS backgrounder; JURIST news archive] in Tanzania and Kenya, is the first Guantanamo detainee to be brought to the US for prosecution. Having been held at the Guantanamo facility since 2006, Ghailani was transferred [JURIST report] to the US District Court for the Southern District of New York [official website] last week to face 286 separate counts including involvement in the bombings and conspiring with Osama bin Laden and other members of al Qaeda to kill Americans worldwide. He pleaded not guilty [JURIST report] at his initial appearance. 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].

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China official affirms that controversial Internet filtering software not mandatory
Christian Ehret on June 17, 2009 11:22 AM ET

[JURIST] Chinese authorities reaffirmed Tuesday that computer users will not be required to use controversial filtering software, according to media reports. An official from the Ministry of Industry and Information Technology (MIIT) [official website, in Chinese] echoed earlier statements [AP report] made by state media that, while the "Green Dam" filtering software must be packaged with new computers, users will not be required to use or install the software. The statements clarify that the government has no intention of punishing people who do not use the software. The software blocks web sites [China Daily report] containing content such as pornography, drugs, homosexuality, or violence, but apparently does not filter political content. The policy, which takes effect on July 1, aims at protecting children from "harmful" content.

Last week, the policy was challenged [JURIST report] by Chinese human rights lawyer Li Fangping, who demanded public hearings to determine if the requirement is lawful and reasonable. Internet censorship in China has been a contested issue for several years. While the MIIT oversees the censorship, the State Council Information Office and the Communist Party's Propaganda Department determines the scope of what is blocked. During the 2008 Olympics, while the government was supposed to refrain from Internet censorship, the Global Internet Freedom Consortium [advocacy website] provided software to reporters to circumvent Internet restrictions [press release]. In 2007, Thailand passed a law [JURIST report] aimed at quashing Internet pornography and libel to allow authorities to confiscate and search private computers. Also in 2007, Google [corporate website] urged the US government to fight the rise of global Internet censorship, calling it the "single greatest trade barrier we currently face." According to a report [HRW report] released by Human Rights Watch (HRW) [advocacy website] in 2006, nine state-licensed Internet access providers ultimately control access to foreign networks for all users and retail service providers.

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US human trafficking report adds 6 countries to worst offenders list
Devin Montgomery on June 17, 2009 10:24 AM ET

[JURIST] The US State Department (DOS) [official website] on Tuesday added Chad, Eritrea, Malaysia, Niger, Swaziland, and Zimbabwe to its list of countries with the worst human trafficking records in the Trafficking in Persons Report 2009 [materials; introduction, PDF]. The countries join Burma, Cuba, Fiji, Iran, Kuwait, Mauritania, Niger, North Korea, Papau New Guinea, Saudi Arabia, Sudan, and Syria as countries that do not comply with the US Trafficking Victims Protection Act (TVPA) [22 USC § 78 text], and are not considered to be taking "significant actions" to comply with the TVPA. The report also included a list of 52 countries that the DOS said must increase their efforts to combat the problem or face possible sanctions. Announcing the publication of the report [statement text], Secretary of State Hillary Clinton [official profile] underscored the importance of combating what she called "modern slavery":

Around the world, millions of people are living in bondage. They labor in fields and factories under brutal employers who threaten them with violence if they try to escape. They work in homes for families that keep them virtually imprisoned. They are forced to work as prostitutes or to beg in the streets, fearful of the consequences if they fail to earn their daily quota. They are women, men, and children of all ages, and they are often held far from home with no money, no connections, and no way to ask for help.

This is modern slavery, a crime that spans the globe, providing ruthless employers with an endless supply of people to abuse for financial gain. Human trafficking is a crime with many victims: not only those who are trafficked, but also the families they leave behind, some of whom never see their loved ones again.

Trafficking has a broad global impact as well. It weakens legitimate economies, fuels violence, threatens public health and safety, shatters families, and shreds the social fabric that is necessary for progress. And it is an affront to our basic values and our fundamental belief that all people everywhere deserve to live and work in safety and dignity.
Clinton added that the current economic recession has "ma[de] more people susceptible to the false promises of traffickers." Also Tuesday, the African Union (AU) [official website] announced the start of the AU Commission Initiative against Trafficking [outline, DOC; materials], a three-year plan during which the AU hopes to improve conditions on the continent.

This is the ninth annual report on human trafficking by the DOS, following 2008 [materials], 2007 and 2006 [JURIST reports] reports. Earlier this year, UN Special Rapporteur on human rights in North Korea [JURIST news archive] Vitit Muntarbhorn [UN appointment release] cited the country [JURIST report] for various human rights violations including human trafficking. In July 2008, Human Rights Watch (HRW) [advocacy website] released a report [HRW materials; JURIST report] calling on the Saudi government to institute new laws to protect its domestic workers from becoming victims of trafficking.

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AG Holder calls for stricter hate crime laws after recent violence
Christian Ehret on June 17, 2009 10:11 AM ET

[JURIST] US Attorney General Eric Holder [official profile] on Tuesday called for stricter federal hate crime laws [transcript], maintaining that the US Department of Justice (DOJ) [official website] is committed to working with Congress to pass such legislation. Addressing the Washington Lawyers Committee for Civil Rights and Urban Affairs [advocacy website], Holder cited recent crimes that took the lives of a soldier in Arkansas, abortion doctor George Tiller [BBC profile], and a guard at the US Holocaust Memorial Museum [website] as reminders of the "potential threat posed by violent extremists." Holder stated that one of his top priorities is to ensure the continuance of the DOJ Civil Rights Division [official website] to protect the ideals of equal protection that are "enshrined so eloquently in the Declaration of Independence and the Fourteenth Amendment." Additionally, Holder maintained that important progress has been made in the division since President Barack Obama took office, including a reinvigoration of its amicus practice. Holder addressed the DOJ's commitment to combating hate crime violence, stating:

We will not tolerate murder, or the threat of violence, masquerading as political activism. So let me be clear, the Justice Department will use every tool at its disposal to protect the rights ensured under our constitution. And we will do all that we can to deter violence against reproductive health care providers and to prosecute those who commit such violence to the fullest extent of the law. ... The violence we have seen during the last month may seem daunting to some. But I view these tragedies as a call to action. ... Let us commit ourselves – regardless of party affiliation or political viewpoint – to the difficult work ahead: building an America in which the kind of violence we have seen these last few weeks is but a distant memory. And building an America in which all of our Nation’s citizens, in equal measure, enjoy the fruits of our founding documents.

Holder mentioned the recent House of Representatives [official website] approval [JURIST report] of the Federal Local Law Enforcement Hate Crimes Prevention Act of 2009 [HR 1913 text], which broadens the definition of hate crimes to include those based on sexual orientation, gender identity and disabilities. The proposed legislation seeks to expand current legislation which only covers crimes based on race, religion or national origin.

Earlier this month, Holder maintained that the DOJ would take appropriate steps [JURIST report] to help prevent acts of violence related to the shooting of George Tiller, enlisting the US Marshal Service [official website] to offer protection to other at-risk people and facilities. In 2007, the House approved [JURIST report] a similar hate crimes bill [text, PDF; HR 1592 summary], and the US Senate also passed [JURIST report] similar legislation in the form of an amendment to the 2008 Senate Defense Reauthorization Bill [HR 1585 materials]. However, the broadened language was ultimately removed [JURIST report] during House and Senate negotiations.

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US terrorism financing laws violate Muslim charities' rights: report
Christian Ehret on June 17, 2009 8:27 AM ET

[JURIST] US anti-terrorism laws are hindering Muslim charities and violating the constitutional rights of practicing Muslims, according to a report [text, PDF] released Tuesday by the American Civil Liberties Union (ACLU) [advocacy website]. Entitled "Blocking Faith, Freezing Charity," the report alleges that current US laws and policies affect Muslims' right to practice their religion through charitable giving, violating constitutional freedoms and fundamental human rights. Zakat [IslamicPath backgrounder], one of the five pillars of Islam, is a religious obligation that involves donating to a charity that serves as welfare for Muslim countries and individuals in need. The report argues that actions taken by the US government impede the right of US Muslims to practice their religion by participating in Zakat, violating their First Amendment [text] rights. Additionally, by freezing assets "pending investigation," the report maintains that the policies in question violate charities' due process rights under the Fifth Amendment [text]. According to the report, the rights violations began when former president George W. Bush took executive action [exec. order 13224] following the 9/11 attacks [JURIST news archive] to allow the US Treasury Department [official website] to freeze the assets of terrorist organizations. Shortly thereafter, the government froze the assets of the Holy Land Foundation [ADL backgrounder; LOC archived website], the Global Relief Foundation, and the Benevolence International Foundation [GlobalSecurity backgrounder], effectively closing the organizations. Calling the Treasury Department's power to designate groups as terrorist organizations "virtually unchecked," the report expresses concern that the department is not required to disclose the evidence on which it bases such decisions. The report addresses the due process issues raised by the laws and policies:

Terrorism financing laws cover (i) schemes under which the government may designate organizations as terrorist through an administrative action in which the government shuts organizations down, often without allegations of criminal wrongdoing (criminal charges are not always brought in such cases), and (ii) criminal prosecutions for material support for terrorism or to a terrorist organization. These regimes raise different issues...but have in common a lack of fundamental due process safeguards and impose guilt by association. As a result, American Muslim organizations and individuals are unfairly targeted in violation both of their First and Fifth Amendment rights and international law.

Earlier this month, US President Barack Obama addressed US-Muslim relations [transcript] at a speech in Cairo, raising the issue of terrorism finance laws and their effect on the Muslim community. In their report, the ACLU urged the Obama administration to conform existing terrorism financing laws and policies with the concepts of due process and freedom of religion.

Last month, a federal judge sentenced [JURIST report] five officials of the Holy Land Foundation to prison sentences ranging from 15 to 65 years and reaffirmed a $12.4 million jury judgment against the group. The group and officials were convicted [JURIST report] of providing material support to Palestinian group Hamas [BBC backgrounder]. Once the largest Muslim charity in the US, the Holy Land Foundation and its officials were originally charged [original indictment, PDF; JURIST report] in 2004 on 42 counts of conspiracy, dealing in the property of a specially designated terrorist and various other charges. The group defended themselves on the grounds that the charity's funds were used solely to help Palestinians in need [JURIST report], but the prosecution maintained that the group was in place only to funnel money used to support Hamas through Palestinian schools and charities.

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Iraq authorities charging police officers after prison abuse investigation
Brian Jackson on June 17, 2009 8:19 AM ET

[JURIST] Iraqi Interior Minister Jawad al-Bolani [NYT backgrounder] said Tuesday that more than 40 police officers face charges following an investigation that revealed abuses in the country's prisons and criminal justice system. Among the alleged abuses, police are believed to have arrested individuals without warrants [AP report]. Additional allegations, including torture and bribery, were leveled by Ali al-Miyali, an Iraqi lawmaker associated with Shiite cleric Muqtada al-Sadr [CFR backgrounder]. The Iraqi government is attempting to resolve the controversial issue of police behavior before the national parliamentary elections, scheduled for January 30, 2010 [UPI report].

Earlier this week, it was reported that hundreds of Iraqi prisoners had gone on a hunger strike [PressTV report] to protest being tortured into giving false confessions. In August, officials for Iraq's Human Rights Ministry said that they plan to prosecute those suspected of torturing inmates [JURIST report] of the country's prison system. In November 2005 US troops found 173 prisoners [JURIST report], many abused, in a secret bunker run by the Interior Ministry. Earlier that year, then-UN secretary-general Kofi Annan said that Iraq's detention practices may violate international law and expressed concern [JURIST report] over the failure of Coalition forces to publish the results of their investigation into the torture allegations. In December 2005, then-interior minister Bayan Jabr fired [JURIST report] Nouri al-Nouri, the country's senior inspector handling human rights issues, in connection with a torture scandal involving dozens of prisoners at a Baghdad prison. Jabr himself has been accused of running secret prisons and controlling death squads, charges he has downplayed or denied [JURIST reports].

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UN rights experts call for fairness and openness in Suu Kyi trial
Brian Jackson on June 17, 2009 7:18 AM ET

[JURIST] Five UN officials on Tuesday decried the manner in which Myanmar has conducted [press release] the trial of Nobel laureate Aung San Suu Kyi [BBC profile; JURIST news archive]. Special Rapporteur on the independence of judges and lawyers [official website] Leandro Despouy said that the trial "has been marred by flagrant violations of substantive and procedural rights." Special Rapporteur on freedom of opinion and expression[official website] Frank La Rue objected to the secretive nature of the trial, saying that both Myanmar and foreign media should have access to the proceedings. All five leaders, considered experts in human rights, concluded that Suu Kyi must be released from her house arrest sentence, reiterating an earlier opinion by the UN Working Group on Arbitrary Detention [official website] that the continued restriction of Suu Kyi to her home after May 2008 is contrary to Myanmar law [opinion, PDF]. Suu Kyi's trial is scheduled to resume [JURIST report] on June 26.

Suu Kyi was put on trial in mid-May for violating the terms of her house arrest [JURIST report], which she has been under for 12 of the last 18 years. News of Suu Kyi's trial has been met with criticism from numerous agencies and governments around the world. Human Rights Watch (HRW) has called the charges [HRW report] against Suu Kyi, "trumped up." Soon after the trial began, the Ministry of Foreign Affairs of Thailand released a statement through the Association of Southeast Asian Nations calling for the immediate release of Suu Kyi [statement, PDF]. US President Barack Obama has made a similar call for Suu Kyi's release [statement].

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Sri Lanka government ends inquiry into human rights abuses
Eszter Bardi on June 17, 2009 7:07 AM ET

[JURIST] A Sri Lanka [JURIST news archive] government official announced Tuesday that an investigation into human rights abuses that allegedly occurred during the 25-year civil war between the government and Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive] had ended. A commission of inquiry, established in 2007 to investigate potential abuses, had completed work on fewer than half the cases it was assigned when its mandate expired [AP report] Sunday, and no extension was granted. Commentators are unclear why the government halted the investigation and fear the reorganization of the LTTE. The commission of inquiry has previously been criticized [statement, PDF] by its co-branch, the International Independent Group of Eminent Persons (IIGEP) for not following international standards, and the government has been cited for lacking political will to conduct investigations. 

The announcement came just days after Amnesty International (AI) [advocacy website] urged [press release; JURIST report] the Sri Lankan government to conduct a more serious inquiry into possible human rights abuse cases, including the killing of 17 aid workers. UN Secretary-General Ban Ki-moon [official website] recently 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. 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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Georgia court overturns custody order barring contact with parent's gay friends
Eszter Bardi on June 17, 2009 6:20 AM ET

[JURIST] The Supreme Court of Georgia [official website] reversed [opinion, PDF] Monday a lower court's order in a divorce case that prohibited the children of a divorced father to be in contact with his gay and lesbian acquaintances. The court disagreed with the qualified visitation rights granted to Eric Mongerson on the grounds that no evidence exists that his homosexual friends behave inappropriately in front of the children. The court ruled that:

There is no evidence in the record before us that any member of the excluded [gay and lesbian] community has engaged in inappropriate conduct in the presence of the children or that the children would be adversely affected by exposure to any member of that community. The prohibition against contact with any gay or lesbian person acquainted with Husband assumes, without evidentiary support, that the children will suffer harm from any such contact. Such an arbitrary classification based on sexual orientation flies in the face of our public policy that encourages divorced parents to participate in the raising of their children, and constitutes an abuse of discretion.

Gay rights group Lambda Legal [advocacy website], which submitted an amicus brief in the case, praised [press release] Monday's ruling, saying, "[t]he court has done the right thing today by focusing on the needs of the children instead of perpetuating stigma on the basis of sexual orientation."

Other family courts have also struggled recently with the issue of homosexuality. In May, a New York a state appeals court ruled [opinion text] that a family court does not have jurisdiction [JURIST report] over a child support claim against a same-sex partner with no legal or biological ties to the child. In April, a New York state appeals court ruled [JURIST report] that a same-sex partner lacks standing to assert parental rights over the biological child of her partner unless she has adopted the child. In November, a Florida court ruled [opinion, PDF; JURIST report] that a ban on adopting children for same-sex couples was unconstitutional, allowing a couple to adopt two children. The US Court of Appeals for the Eleventh Circuit [official website] upheld [opinion, PDF] the same Florida statute in 2005 as being rationally related to protecting the interests of children, and the US Supreme Court declined to review [WP report] that decision.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
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