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Legal news from Tuesday, June 23, 2009

Vietnam human rights lawyer disbarred following arrest on conspiracy charge
Christian Ehret on June 23, 2009 3:56 PM ET

[JURIST] Vietnamese pro-democracy lawyer Le Cong Dinh was disbarred Monday from the Ho Chi Minh City Bar [professional association, in Vietnamese] following his recent arrest [JURIST report] for allegedly conspiring against the government. The Bar's disciplinary council concluded [Saigon Giai Phong report] that the prominent lawyer damaged the association's prestige, caused public discontent, and violated ethical requirements for legal practitioners. Dinh was vice president of the bar [Straits Times report] from 2005 to 2008 and may face dismissal as director of the association's Law Policy Research Center. Dinh was originally charged [Nhan Dan report] with "colluding with foreign reactionaries to sabotage the Vietnamese State" for the alleged distribution of anti-government documents, in violation of Article 88 [text] of the Vietnamese penal code. 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. Authorities also claimed that Dinh and his cohorts wrote a new constitution for Vietnam to replace the current one. He has admitted to the charges [Saigon Giai Phong report] against him and has expressed regret for his actions.

The lawyer became well-known after defending Vietnamese interests in a catfish trade dispute [BBC report] with the US and 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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Italy court delays Google criminal defamation trial
Jaclyn Belczyk on June 23, 2009 2:56 PM ET

[JURIST] The Italian trial of four Google, Inc. [corporate website] executives was delayed Tuesday until September 29 because of an ill interpreter. The four executives, product marketing manager Arvind Desikan, former CFO George Reyes, chief legal officer David Drummond, and privacy executive Peter Fleischer, face trial on criminal defamation charges [JURIST report] arising out of Google Video [corporate websites] content depicting a disabled boy being teased and bullied. The charges, which also include breach of Italy's privacy code, could result in up to three years in prison if convictions are reached.

The video, which involves a boy with Down syndrome who was teased by four others, was hosted on the streaming video site for two months in 2006 before being removed. Google is defending itself [PCWorld report] on the grounds that the video was removed as soon as the company was aware of its presence and that they have fully cooperated with Italian authorities. The prosecutor alleges that the boy's privacy was violated by the company failing to prevent the posting of the video. According to Italian law, Internet content providers are responsible for third-party postings. Google has previously stated [CNET report] that "seeking to hold neutral platforms liable for content posted on them is a direct attack on a free, open Internet."

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China lawmakers review revised state secrets law
Christian Ehret on June 23, 2009 2:41 PM ET

[JURIST] Chinese lawmakers on Monday reviewed a revised version of a state secrets [JURIST news archive] law which aims to update existing legislation to address Internet leaks of classified data. A draft of the amended Law on Guarding State Secrets [text] was passed by the Chinese State Council in April and is now being considered [Xinhua report] by the Standing Committee of the 11th National People's Congress (NPC) [official profile]. The revised law will prohibit devices containing confidential information from being connected to the Internet and stipulates measures to protect other sensitive information from public connections. Although most of the leaks are unintentional, those caught intentionally disclosing state secrets are usually executed [China Daily report]. The NPC found that online communications accounted for more than 70 percent of leaked state secrets, and leaks have reportedly occurred after plugging flash drives into computers. The Chinese government has previously asserted that they will be able to maintain a commitment to transparency [Xinhua report] while still protecting secrets.

The proposed legislation follows recent controversy over Internet censorship in China. Last week, Chinese authorities tried to alleviate concerns over Internet filtering software [JURIST report] by stating that computer users will not be required to use the controversial program, despite it being packaged with new computers. The statements expressed that the government has no intention of punishing people who do not use the software. Earlier this month, the policy had been challenged [JURIST report] by Chinese human rights lawyer Li Fangping, who demanded public hearings to determine if such a requirement were lawful and reasonable. The Ministry of Industry and Information Technology (MIIT) [official website, in Chinese] oversees Internet censorship, while the State Council Information Office and the Communist Party's Propaganda Department determines the scope of what is blocked.

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Former Kenya rebels sue UK over colonial-era abuses
Devin Montgomery on June 23, 2009 1:15 PM ET

[JURIST] A group of five Kenyans [advocacy profiles, DOC] involved in the country's Mau Mau uprising [advocacy backgrounder, DOC] during the 1950s sued the British government [press release] on Tuesday, alleging that they were abused in British prison camps. The five filed a claim in the High Court in London seeking a public apology and compensation for alleged beatings, sexual abuse, and unlawful detention. Lawyers representing the five said that the lawsuit was being brought as a test case for thousands of other Kenyans who endured similar conditions, and said that the abuse "resulted from policies which were sanctioned at the highest levels of the British Government by the then Colonial Secretary." A spokeswoman for the UK Foreign Office [official website] expressed regret for any violence [Reuters report] during the uprising, but said the government intended to contest the lawsuit on the grounds that the claims were too old, or in the alternative, that the Kenyan government would now be liable for any claims.

The Mau Mau rebellion was led by members of the largely impoverished Kikuyu tribe [backgrounder] and lasted from 1952-1960. The uprising was notorious for atrocities committed by both the rebels and British colonial forces. Official casualty figures eventually set the number of European deaths at 32, and the number of Kenyans killed at just over 11,000. Unofficial estimates have put the latter number as high as 50,000 [Guardian report]. Onyango Obama, the Kenyan grandfather of US President Barack Obama, is said to have been detained and tortured during the British government's suppression of the insurgents. Kenya became officially independent from Britain in 1963.

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Iran council rules out new elections following fraud investigation
Christian Ehret on June 23, 2009 12:50 PM ET

[JURIST] Iranian authorities announced on Tuesday that they would not hold a new presidential election, maintaining that there was no evidence of any major fraud or irregularity in the contested results [BBC backgrounder]. Following its investigation [JURIST report], the country's Guardian Council for the Constitution [official website, in Persian] rejected protesters' requests [BBC report] to abandon the results and start over, asserting that President Mahmoud Ahmadinejad [BBC profile; JURIST news archive] won the election by such an overwhelming majority that any minor inconsistencies would not have meant victory for reform candidate Mir Hossein Mousavi [IranTracker profile]. Although the Guardian Council conceded that the number of votes exceeded the number of voters in 50 voting districts, they explained that the imbalance could be due to voters' ability to vote anywhere in the country. Protesters are reportedly discussing other ways to oppose the election, including strikes and acts of civil disobedience. UN Secretary-General Ban Ki-moon [official webpage] urged authorities [statement text] on Monday to respect the civil and political rights of protesters.

State media reported on Monday that 10 people were killed and 457 were arrested [JURIST report] during the weekend's protests. Authorities stated that those arrested would be dealt with [Reuters report] by the court system. Last week, Iran's spiritual leader and highest authority, Ayatollah Ali Khamenei [official profile; BBC profile], who previously ordered an investigation [JURIST report] into alleged voter fraud, called for an end to the demonstrations [CNN report] and asserted that the election was not manipulated. World leaders and human rights groups have called the arrests a form of political repression [JURIST report].

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Japan parliament approves anti-piracy law
Christian Ehret on June 23, 2009 10:06 AM ET

[JURIST] The Japanese Diet has passed an anti-piracy law, authorizing the government to dispatch forces to combat pirate attacks [JURIST news archive] against commercial vessels. The law, passed by the House of Representatives [official website, in Japanese] Friday, allows the country's military to protect foreign vessels as well as domestic ones, joining multinational forces in policing the Somali coast. Additionally, the law criminalizes acts of piracy, allowing the country to punish offenders. The law bestows authority upon both the country's Maritime Self-Defense Force (MSDF) and Coast Guard [official websites, in Japanese] to police the Somalian coast and the Gulf of Aden and creates anti-piracy measures that are meant to be consistent [statement, in Japanese] with the UN Convention on the Law of the Sea [text]. The legislation was encouraged by the Japanese Shipowners' Association and other groups out of concern for further acts of piracy that have resulted in vessel damage and the hostage of Japanese nationals in the past. Prime Minister Taro Aso [official website, in Japanese] discussed the law [statement, in Japanese] and its international significance:

Under this law, Japan will be able to protect not only Japanese-related vessels from acts of piracy but also vessels of other countries. The law criminalizes acts of piracy under the Japanese legal system; thereby Japan will be able to take more effective and appropriate measures against acts of piracy in cooperation with all countries concerned.

Aso added that the legislation was important because of the need for foreign trade and the fact that Japan is surrounded by water.

In January, Japanese defense minister Yasukazu Hamada [official profile] ordered [press release; JURIST report] the country's MSDF to prepare to travel to the waters surrounding Somalia to combat piracy in the region, despite concerns that combat could be prohibited by the country's pacifist constitution. Hamada has said the plan is designed to protect the country's commercial interests, but opposition lawmakers were concerned the move violates the Renunciation of War [text] chapter of the the country's 1946 constitution. Somali piracy continues to be an issue for countries across the globe. Last week, Kenyan prosecutors charged 17 Somalis with piracy after being arrested and turned over by US Naval forces in the Gulf of Aden. Last month, officials from the G8 countries [BBC backgrounder] agreed to work toward establishing a system for trying pirates [JURIST report] captured in African waters. Also in May, the UN Office on Drugs and Crime [official website] obtained Kenyan support [VOA report] to launch a new plan to combat piracy by policing Horn of Africa waters. In April, Kenyan authorities brought charges [JURIST report] against 18 Somali nationals who were captured by German and French forces over the previous two months.

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Federal judge rules Guantanamo detainee no longer 'enemy combatant'
Christian Ehret on June 23, 2009 8:33 AM ET

[JURIST] A federal judge ordered [text, PDF] the release of a Guantanamo Bay [JURIST news archive] detainee Monday, ruling that Syrian national Abdulrahim Abdul Razak Al Ginco could not be considered a member of a terrorist organization when originally taken into custody due to the "passage of time, intervening events, or both." Judge Richard Leon of the US District Court for the District of Columbia [official website] found that Ginco could no longer be classified as an "enemy combatant" and that the government must "take all necessary and appropriate diplomatic steps" to facilitate his release. The government contended that Ginco was part of the Taliban when captured by US forces in 2002, despite being imprisoned and tortured by al Qaeda and then imprisoned by the Taliban for over eighteen months. According to the court, a pre-existing relationship between a person and a terrorist organization can be sufficiently attenuated over a period of time by an examination of the nature of the relationship and the intervening events as well as the amount of time that has passed between the relationship and time of custody. Leon addressed the government's argument that Ginco, referred to as Janko, was part of the Taliban or al Qaeda prior to being taken into custody, saying that their position "defies common sense" and:

To say the least, five days at a guesthouse in Kabul combined with eighteen days at a training camp does not add up to a longstanding bond of brotherhood. ... [W]hile there is no evidence - from either side - as to why he suddenly was suspected by al Qaeda leaders of spying and was tortured for months into giving a false confession, it is highly unlikely that by that point in time al Qaeda (or the Taliban) had any trust or confidence in him. Surely extreme treatment of that nature evinces a total evisceration of whatever relationship might have existed! Stated simply, absent proof to the contrary - which is totally lacking here - no remnant of that preexisting relationship appears to have survived.

[T]he combination of Janko's incarceration thereafter for a substantial eighteen-plus month period by the Taliban and subsequent abandonment by his captors when U.S. forces ultimately liberated Kandahar, is even more definitive proof that any preexisting relationship had been utterly destroyed.
The released order does not reflect the full decision of the court, as it only discusses unclassified evidence and does not mention much the government's evidence, which consisted of sensitive intelligence reports.

Leon has previously ruled in favor of the government's broad "enemy combatant" classification. In December, Leon allowed the US government [JURIST report] to hold two Guantanamo Bay detainees despite their filed habeas corpus petitions, finding that the government had met its burden of showing that the prisoners were being lawfully detained as "enemy combatants." In both cases, Leon specified that the government did not have to make a showing that the men engaged in hostilities towards the US or its allies to meet that classification. In November, Leon ordered the release [order, PDF; JURIST report] of five Algerian detainees in the first rulings on habeas petition since the 2008 Supreme Court decision in Boumediene v. Bush [opinion, PDF; JURIST report] granting them the right to challenge their detention. In that case, he found that the government had not provided enough evidence to show that the men had been engaged in or supported hostilities against the US or its allies, but did find that a sixth man could continue to be lawfully detained.

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US 'concerned' about free expression impact of China Internet filtering policy
Jay Carmella on June 23, 2009 8:17 AM ET

[JURIST] US State Department [official website] spokesperson Ian Kelly said Monday that the US is concerned [press briefing] over China's decision to require software that would block certain Internet content. The Chinese government is requiring that all personal computers sold after July 1 include software that is designed filter certain websites. The software [China Daily report] limits citizens' ability to view violent and pornographic material on the web. Kelly said:

Officials from the State Department, [US Trade Representative], Department of Commerce based at the US Embassy in Beijing, met with government officials at the Chinese Ministry of Information, Technology, and Industry, and the Chinese Ministry of Commerce to express our concerns regarding the Chinese Government’s requirement that all computers sold in China include Green Dam internet filtering software. We are concerned about Green Dam in terms of its potential impact on trade, the free flow of information, and the serious technical issues raised by the software.

We believe there are other commercially available software programs which provide users with a wide range of choices for shielding minors from illicit or inappropriate internet contact – content, which is the ostensible rationale for this. We've also asked the Chinese to engage in a dialogue on how to address these concerns.

Last week, Chinese authorities tried to alleviate concerns over the software [JURIST report] by stating that computer users will not be required to use controversial software, despite the software being packaged with new computers. The statements clarify that the government has no intention of punishing people who do not use the software. Earlier in June, 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 Ministry of Industry and Information Technology (MIIT) [official website, in Chinese] oversees the censorship, the State Council Information Office and the Communist Party's Propaganda Department determines the scope of what is blocked.

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France parliament establishes commission on Muslim burqa
Jay Carmella on June 23, 2009 7:34 AM ET

[JURIST] The president of the French National Assembly [official website, in French] Bernard Accoyer [official profile, in French] announced Tuesday the creation of a commission to study the wearing of the Muslim burqa [JURIST news archive]. The statement came after French President Nicolas Sarkozy [official website, in French; JURIST news archive] strongly criticized the practice [transcript, PDF, in French] Monday during a major policy address. Becoming the first French president to address parliament in nearly a century and a half, Sarkozy discussed [BBC report] concerns that burqas degrade women and are a sign of subservience. Announcing his support for the establishment of a commission to investigate the cause of the increasing number of Muslim women who are choosing to wear the burqa and whether the women are doing so voluntarily, Sarkozy said:

The problem of the burqa is not a religious problem. It is an issue of freedom and dignity of women. This is not a religious symbol, it is a sign of subservience, it is a sign of lowering.

I want to say solemnly, the burqa is not welcome in France. We cannot accept in our country women trapped behind a fence, cut off from social life, deprived of any identity. This is not the idea that we have of the dignity of women.

Parliament has expressed a desire to address this question. This is the best way to proceed. There needs to be a debate and all viewpoints must be expressed. Where outside parliament could this better be expressed? But I say to you, let us not be ashamed of our values. We must not be afraid to defend them.
The speech received mixed reaction from the Muslim community. Some Muslim leaders, including the Secretary of State for Human Rights Rama Yade [official profile, in French], believe that banning the burqa would help to protect Muslim women who are being forced to wear the veil. Other Islamic leaders believe that any limitations to their rights would lead to further isolation of the 5 million Muslims currently living in France.

The controversy between the Muslim community and the French government over the burqa has existed for several years. In December 2008, the European Court of Human Rights (ECHR) [official website] unanimously ruled [JURIST report] that there was no human rights violation when a French school expelled two students for refusing to remove their headscarves. Last July, a Muslim woman's citizenship application was denied [JURIST report] because she failed to assimilate to French culture and she practiced a type of Islam found incompatible with French values. In 2004, France passed a law [JURIST report] banning students from conspicuous religious items, including Muslim headscarves, in schools.

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Obama signs tobacco regulation bill
Eszter Bardi on June 23, 2009 7:24 AM ET

[JURIST] US President Barack Obama [official website] on Monday signed into law the Family Smoking and Tobacco Prevention Act [HR 1256 text], which grants the Food and Drug Administration (FDA) [official website] certain authority to regulate tobacco products. In remarks [transcript] delivered before signing, Obama stressed the importance of the new legislation, which was passed in response to the 8 million tobacco-related illnesses in the US and the 400,000 deaths per year arising out of tobacco use. Obama also drew attention to the core purpose of the act, which is to mitigate tobacco-product exposure to children under the age of 18:

This legislation will not ban all tobacco products, and it will allow adults to make their own choices. But it will also ban tobacco advertising within a thousand feet of schools and playgrounds. It will curb the ability of tobacco companies to market products to our children by using appealing flavors. It will force these companies to more clearly and publicly acknowledge the harmful and deadly effects of the products they sell. And it will allow the scientists at the FDA to take other common-sense steps to reduce the harmful effects of smoking.

He also commended Congress for recognizing the seriousness of tobacco-related health problems and effectuating a public response. The president extended special thanks to Representative Henry Waxman (D-CA), Senator Christopher Dodd (D-CT), and Senator Ted Kennedy (D-MA) [official websites] for their involvement in crafting the bill, calling it "a victory for bipartisanship."

The bill was approved [JURIST report] by the House of Representatives and the Senate [official websites] last week. The new 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. 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.

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Rwanda genocide tribunal sentences ex-interior minister to 30 years in prison
Eszter Bardi on June 23, 2009 6:27 AM ET

[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] on Monday sentenced [press release] former Rwandan interior minister Callixte Kalimanzira [ICTR case materials; Trial Watch profile] to 30 years imprisonment on charges of genocide and public incitement. The three-judge panel of Trial Chambers III found that, because of his position as a government official and high status in Butare society, Kalimanzira was responsible for luring thousands of Tutsi refugees [GlobalSecurity backgrounder] onto Kabuye hill, where they eventually met their death. Given the facts and circumstances of the April 1994 event, the ICTR held that Kalimanzira not only abused public trust but is guilty beyond reasonable doubt of aiding and abetting genocide. Kalimanzira was also convicted on charges of direct and public incitement [indictment, PDF] to commit genocide because of his involvement in other incidents that took place in 1994. Kalimanzira's trial began in May 2008 after he surrendered to authorities and pleaded not guilty [JURIST reports] in November 2005.

The ICTR was established to try genocide suspects for crimes occurring during the 1994 Rwandan conflict [HRW backgrounder; JURIST news archive] between Hutus and Tutsis in which approximately 800,000 people, primarily Tutsis, died. Last week, the ICTR began the retrial [press release; JURIST report] of former Rwandan army officer Tharcisse Muvunyi [ICTR case materials]. The ICTR had quashed [JURIST report] Muvunyi's 25-year prison sentence in August, ruling that there was insufficient evidence for his conviction on charges of genocide and crimes against humanity. In March, UN Secretary-General Ban Ki-Moon pledged his ongoing support [JURIST report] for the ICTR and stressed that the international community must continue to combat genocide.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
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