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Legal news from Thursday, June 25, 2009

Spain lower house votes to limit reach of universal jurisdiction statute
Andrew Morgan on June 25, 2009 2:40 PM ET

[JURIST] The Spanish Congress of Deputies [official website, in Spanish] voted 341-2 [press release, in Spanish] Thursday to limit use of the country's universal jurisdiction [AI backgrounder; JURIST news archive] statute to those offenses committed by or against Spaniards, or where the perpetrators are in Spain. The nearly unanimous vote enjoyed support from the opposition Popular Party (PP) as well as the ruling Socialist Party (PSOE) [party websites, in Spanish], echoing a non-binding resolution [JURIST report] passed by the Congress in May. Similarly broad support is expected when the measure comes before the Senate. If passed by the Senate, the new law would only apply prospectively, allowing cases currently being heard under universal jurisdiction to proceed, including investigations of Israeli actions in Gaza in 2002, detainee abuse at Guantanamo Bay and allegations of war crimes and genocide in Rwanda, Tibet, Guatemala, and China [JURIST reports]

Spain's current statute allows the exercise of universal jurisdiction over foreign torture, terrorism and war crimes if the case is not subject to the legal system of the country involved, regardless of its connection to Spain. Earlier this month, human rights groups urged [JURIST report] the Spanish government to continue the broad exercise of universal jurisdiction, while some countries, including Israel [Haaretz report], have argued [JURIST report] for changes to the practice. Universal jurisdiction has been used by prominent Spanish judge Baltazar Garzon [JURIST news archive] to bring several high-profile cases, including those against Osama bin Laden and former Latin American dictator Augusto Pinochet [JURIST news archives].

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Iran authorities arrest academics affiliated with Mousavi: report
Christian Ehret on June 25, 2009 1:55 PM ET

[JURIST] Iranian authorities arrested 70 members of the Islamic Association of University Teachers after they met with opposition candidate Mir Hossein Mousavi [IranTracker profile] on Wednesday, according to a statement [text, in Persian] on Mousavi's website [personal website, in Persian]. The professors met to discuss the recent unrest [statement, in Persian] in the country and were reportedly arrested immediately after the meeting. According to the posting, there is no information available about where the academics were transferred. Mousavi plans to continue his protests [CBC report] over the recent presidential election [BBC backgrounder], maintaining that the election results were fraudulent. According to reports, Mousavi has been placed under house arrest [AKI report] in an attempt to isolate him from reformist protesters. Mousavi alleges [statement, in Persian] that his websites have been experiencing problems and that the Kalameh Sabz newspaper has been shut down and all of its editors arrested.

Ayatollah Ali Khamenei [official profile; BBC profile] on Wednesday granted a request [JURIST report] from the Guardian Council of the Constitution [official website, in Persian] to accept new complaints from opposition candidates for five more days. Although Khamenei will hear the candidates' grievances, he told legislators Wednesday that the government will not succumb to pressure [AP report] over the election results. Mousavi supporters protested in Tehran and elsewhere after the victory of President Mahmoud Ahmadinejad [BBC profile; JURIST news archive], reportedly resulting in at least 17 deaths and hundreds of arrests [JURIST report]. Following the Guardian Council's investigation, they conceded that the number of votes exceeded the number of voters in 50 voting districts but explained that the discrepancy could be due to voters' ability to vote anywhere in the country. Human rights groups have viewed the arrests as political repression [JURIST report], saying that Iranian forces are using the protests to "engage in what appears to be a major purge of reform-oriented individuals."

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Guantanamo is symbol of degraded torture convention: UN rights chief
Andrew Morgan on June 25, 2009 1:27 PM ET

[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] said [press release] Thursday that the US detention facilities at Guantanamo Bay and Abu Ghraib [JURIST news archives] are "high-profile symbols" of a trend toward finding ways to circumvent the UN Convention Against Torture (CAT) [text]. In order to close the "Guantanamo chapter," Pillay said, remaining inmates "must either be tried before a court of law – like any other suspected criminal – or set free." Rejecting "creative ways" of treating detainees as criminals without trial, Pillay said that:

Guantanamo showed that torture and unlawful forms of detention can all too easily creep back in to practice during times of stress, and there is still a long way to go before the moral high ground lost since 9/11 can be fully reclaimed.

As CAT makes clear, people who order or inflict torture cannot be exonerated, and the roles of certain lawyers, as well as doctors who have attended torture sessions, should also be scrutinized.
Pillay urged countries to accept detainees who are released from US custody but may be tortured or treated unjustly in their home countries, "including first and foremost the United States itself."

Last month, Pillay urged the US [JURIST report] to hold accountable those accused of committing torture under the Bush administration. In April, UN special rapporteur on torture Manfred Nowak [official profile, DOC] insisted that under international law the US must prosecute Department of Justice lawyers who drafted recently released memos [JURIST reports] detailing harsh interrogation techniques. Obama has said that he would not rule out the possibility of prosecuting [transcript; JURIST report] lawyers responsible for authoring the memos.

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Senate accepts articles of impeachment for federal judge
Christian Ehret on June 25, 2009 1:19 PM ET

[JURIST] The US Senate [official website] began the impeachment trial process [press release] for Judge Samuel Kent [official profile] Wednesday for alleged "high crimes and misdemeanors" after accepting the articles of impeachment [text, PDF] from the US House of Representatives [official website]. Senate leaders established a bipartisan committee to prepare for the upcoming impeachment trial. The judge for the US District Court for the Southern District of Texas [official profile] is being impeached on allegations of sexually harassing his secretary and case manager, obstructing a judicial proceeding by making false statements, and making false and misleading statements to federal agents during his investigation. The House approved the articles [JURIST report] last week to no opposition. Kent is the first federal judge to be impeached in 20 years and only the thirteenth federal judge to be impeached.

Earlier this month, Kent sent a letter of resignation [JURIST report] to President Barack Obama that would be effective June 2010, allowing him to collect his salary until then. In May, Kent pleaded guilty [JURIST report] to obstruction of justice in a plea agreement [text, PDF] that prevented him from facing a criminal trial. Following his plea, he was sentenced [JURIST report] to 33 months in prison and ordered to pay a $1,000 fine and $6,500 in restitution.

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AG Holder urges cocaine sentencing disparity reform
Christian Ehret on June 25, 2009 11:59 AM ET

[JURIST] US Attorney General Eric Holder [official profile] urged sentencing reform [transcript text] for crack cocaine Wednesday, calling for a review of disparities between sentencing guidelines for powder and crack. Addressing a symposium on federal sentencing policy hosted by the Congressional Black Caucus and Harvard Law School's Race and Justice Institute [advocacy websites], Holder said that a "thorough review" of sentencing reform was necessary due to the "unwarranted" disparities between punishments for different forms of cocaine. The review, Holder maintained, should consider the role of mandatory minimums, the US Department of Justice (DOJ) [official website] charging and sentencing policies, incarceration alternatives, and an examination of other unwarranted disparities in federal sentencing. Citing public trust and confidence in the justice system, Holder stated that unfairness undermines the process and that:

There is no tension between a sentencing scheme that is effective and fair and one that is tough and equitable. We must work toward these twin goals and we must do so now. Too much time has passed, too many people have been treated in a disparate manner, and too many of our citizens have come to have doubts about our criminal justice system. ... We must break out of the old and tired partisan stances that have stood in the way of needed progress and reform. We have a moment in time that must be seized in order to insure that all of our citizens are treated in a way that is consistent with the ideals embodied in our founding documents. This Department of Justice is prepared to act.

The symposium marked the 25th anniversary of the Sentencing Reform Act of 1984 [USSC backgrounder, PDF], which authorizes the US Sentencing Commission (USSC) [official website] to retroactively apply amendments to Federal Sentencing Guidelines [USSC materials] and reserves Congressional power to "modify or disapprove" of the commission's amendments. The final decision whether to reduce a crack cocaine offender's sentence rests with a federal sentencing judge.

Crack cocaine sentencing policies have raised issues in the past about a disparate impact on African American offenders. In April, other DOJ officials said Congress should eliminate the sentencing disparities [JURIST report] between crimes committed involving crack and powder cocaine during a hearing [materials] of the Senate Judiciary Subcommittee on Crime and Drugs [official website]. In April 2008, a study by the USSC reported [study, PDF; JURIST report] that more than 3,000 prison inmates convicted of crack cocaine offenses have had their sentences reduced under an amendment to sentencing guidelines. In 2007, the USSC voted unanimously [JURIST report] to give retroactive effect to an earlier sentencing guideline amendment that reduced crack cocaine penalties [press release]. The amendment was intended to reduce the disparity between powdered cocaine and crack cocaine sentences.

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Sudan court convicts 5 for murder of USAID workers
Andrew Morgan on June 25, 2009 11:56 AM ET

[JURIST] A Sudanese court on Wednesday convicted five men of the January 2008 murder of two US Agency for International Development (USAID) [official website] employees, sentencing four to death. Mohamed Makkawi Ibrahim Mohamed and Abdel Basit al-Hajj Hassan were found guilty of firing shots that killed USAID workers John Granville and Abdelrahman Abbas Rahama while they were returning from a New Year's Eve party. Mohamed Osman Yusuf Mohamed and Abdel Raouf Abu Zaid Mohamed were found guilty of driving and being a passenger in the gunmen's vehicle, respectively. A fifth defendant was found guilty of illegally dealing in weapons and sentenced to two years in prison. US Secretary of State Hillary Clinton [official profile] welcomed [press release] the convictions as an "important step in bringing justice for" Granville and Rahama. The US Embassy in Khartoum [official website] issued a Warden Security Message [text] on Tuesday warning U.S citizens to avoid downtown Khartoum in light of possible anti-American and anti-Western demonstrations following the rulings.

The trial for the five Sudanese men began [JURIST report] in August in Khartoum. Following the shooting, a previously-unknown extremist group calling itself Ansar al-Tawhid claimed responsibility [VOA report] for the shootings. Granville was the first US diplomat killed in Sudan since the deaths of US Ambassador Cleo Noel and US Embassy staffer George Curtis Moore [Arlington Cemetery memorials] in 1973. Tense diplomatic ties between the US and Sudan have been strained by the on-going conflict in the country's western Darfur [JURIST news archive] region.

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Forensic lab reports are 'testimonial evidence': Supreme Court
Jaclyn Belczyk on June 25, 2009 11:40 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 5-4 in Melendez-Diaz v. Massachusetts [Cornell LII backgrounder; JURIST report] that a forensic analyst's laboratory report is testimonial evidence under the Confrontation Clause [Cornell LII backgrounder] of the Sixth Amendment, giving criminal defendants a right to cross-examine the analysts. The Massachusetts Appeals Court held [opinion, PDF] that the report was not testimonial in nature and could therefore be admitted without the analysts testifying in person. Writing for the Court, Justice Antonin Scalia reversed that decision. Justice Clarence Thomas filed a concurring opinion. Justice Anthony Kennedy filed a dissenting opinion, joined by Chief Justice John Roberts and Justices Stephen Breyer and Samuel Alito.

In the 2004 case of Crawford v. Washington [opinion text] the Court held that testimonial evidence could not be admitted unless the defendant had an opportunity to cross-examine the witness. Since then, courts have struggled to determine what constitutes "testimonial evidence." At oral arguments, counsel for the state of Massachusetts had argued that such reports are not testimonial evidence, but rather are merely a "report of a scientist test."

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Supreme Court rules school strip search violates Fourth Amendment
Christian Ehret on June 25, 2009 10:30 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] in Safford United School District #1 v. Redding [Cornell LII backgrounder; JURIST report] that a strip search of a school student violated her Fourth Amendment rights but that school officials who conducted the search are protected from liability via qualified immunity. New Jersey v. T.L.O. [opinion text] sets forth that school searches are permissible "when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Under T.L.O., school officials can search students with reasonable suspicion if there is a "moderate chance of finding evidence of wrongdoing." The Court found that, under this precedent, the intrusiveness of the strip search cannot be seen as justifiably related to the circumstances but that lower court rulings were varied enough to cast doubt upon the clarity of the right. Finding reasonable suspicion to search the girl's backpack and outer clothing, the Court ruled that such suspicion did not exist to the extent of requiring her to strip and pull out her underwear. Although the Court held that the officials have qualified immunity from the suit because "clearly established law [did] not show that the search violated the Fourth Amendment," they remanded the case to determine the school district's liability. Justice David Souter, writing for the majority, discussed the qualified immunity issue:

We think these differences of opinion from our own are substantial enough to require immunity for the school officials in this case. We would not suggest that entitlement to qualified immunity is the guaranteed product of disuniform views of the law in the other federal, or state, courts, and the fact that a single judge, or even a group of judges, disagrees about the contours of a right does not automatically render the law unclear if we have been clear. That said, however, the cases viewing school strip searches differently from the way we see them are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of law. We conclude that qualified immunity is warranted.

Souter's opinion was joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Stephen Breyer, and Samuel Alito and in part by Justices Ruth Bader-Ginsburg, John Paul Stevens, and Clarence Thomas. Stevens filed a separate opinion along with Ginsburg in which he disagreed with the ruling on qualified immunity but concurred in the Fourth Amendment ruling. Ginsburg filed a separate partial concurrence and dissent as well. Thomas also filed a separate opinion, concurring with the majority's grant of qualified immunity but dissenting with their Fourth Amendment ruling.

The case arose out of school officials who strip searched a 13-year old girl after alleging that she possessed prescription strength ibuprofen pills and knives. The officials searched her belongings and brought her to the school nurse's office where she was instructed to remove her clothing, including instructions to expose her breasts and pelvic area "to some degree" by pulling out her bra and underpants. The Court partially affirmed a May 2008 decision [opinion, PDF] by the US Court of Appeals for the Ninth Circuit, which found that the student's Fourth Amendment rights were violated. At the oral argument session, the student's counsel argued to the Court [oral arguments transcript, PDF] that the search was unconstitutional because "there was no suspicion that these objects were going to be found inside Savana's undergarments." The school district, and the US as amicus curiae, argued that the officials had reasonable suspicion that the girl possessed contraband which posed a health and safety risk, allowing a search in any place where the contraband could be reasonably hidden.

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Injured seaman entitled to damages for failure to pay benefits: Supreme Court
Jaclyn Belczyk on June 25, 2009 10:07 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 5-4 in Atlantic Sounding v. Townsend [Cornell LII backgrounder; JURIST report] that an injured seaman may recover punitive damages for the willful failure of his employer to pay a basic living allowance, wages that he otherwise would have earned, and benefits to cover medical expenses, known as "maintenance and cure." The US Court of Appeals for the Eleventh Circuit had upheld [opinion, PDF] a lower court ruling that Townsend could recover the damages. Atlantic Sounding, the petitioner in the case, contended that the applicable statute, the Jones Act [42 USC § 688 text], does not provide for such expenses. The Court disagreed, and, in affirming that opinion, Justice Clarence Thomas wrote:

Because punitive damages have long been an accepted remedy under general maritime law, and because nothing in the Jones Act altered this understanding, such damages for the willful and wanton disregard of the maintenance and cure obligation should remain available in the appropriate case as a matter of general maritime law. Limiting recovery for maintenance and cure to whatever is permitted by the Jones Act would give greater preemptive effect to the Act than is required by its text ... or any of this Court's other decisions interpreting the statute.

Justice Samuel Alito filed a dissenting opinion, joined by Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy.

Petitioners in the case had relied on Supreme Court precedent established in 1990 in Miles v. Apex Marine Corp. [opinion text] to argue that the Jones Act never allows for punitive damages. However, Miles dealt only with a wrongful death suit, not a maintenance and cure claim. Thursday's ruling resolves a circuit split, with the First, Fifth, and Eleventh Circuit Courts awarding punitive damages and the Second, Third, and Ninth Circuit Courts awarding only pecuniary damages under Miles.

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Supreme Court remands Arizona English language education funding case
Andrew Morgan on June 25, 2009 10:04 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 5-4 in Horne v. Flores [Cornell LII backgrounder; JURIST report] and Speaker of the Arizona House of Representatives v. Flores that the US Court of Appeals for the Ninth Circuit erred in declining to modify an injunction requiring Arizona to provide sufficient funding for its English Language Learners (ELL) program in order to comply with the Equal Education Opportunity Act of 1974 (EEOA) [text]. The Supreme Court found that both the district and circuit courts focused too narrowly on the adequacy of funding given to the ELL program, and therefore did not conduct a proper Federal Rule of Civil Procedure 60(b)(5) [text] analysis under Rufo v. Inmates of Suffolk County Jail [opinion text]. Calling the overall goal of overcoming language barriers a "vitally important one," Justice Samuel Alito wrote:

The EEOA's "appropriate action" requirement grants States broad latitude to design, fund, and implement ELL programs that suit local needs and account for local conditions. A proper Rule 60(b)(5) inquiry should recognize this and should ask whether, as a result of structural and managerial improvements, Nogales is now providing equal educational opportunities to ELL students.

Justice Stephen Breyer filed a dissenting opinion, joined by Justices John Paul Stevens, David Souter, and Ruth Bader-Ginsburg.

The Ninth Circuit had affirmed [opinion, PDF] a district court ruling that denied the state's request for relief from a 2005 contempt order under FRCP 60. The speaker of the State House of Representatives and the president of the State Senate argued that increases in funding and programmatic reforms adopted by the legislature, as well as the specific ELL requirements in the federal No Child Left Behind Act of 2001 [official website], meant that Arizona was now in compliance with the EEOA. In Rufo, the Court found that a judgment has been "satisfied and the violation cured" within the meaning of Rule 60 if a party can show that the judgment would not have been issued if changes in fact or law had been in place at the time of the original order.

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Fourth Circuit upholds Virginia 'partial birth' abortion ban
Christian Ehret on June 25, 2009 8:37 AM ET

[JURIST] The US Court of Appeals for the Fourth Circuit [official website] upheld [opinion, PDF] a Virginia law [Va. Code Ann. § 18.2-71.1] Wednesday that bans "partial birth" abortions [JURIST news archive], reversing previous rulings that found it unconstitutional. The appeals court initially affirmed [opinion, PDF; JURIST report] the district court's ruling that the law was unconstitutional. Then, after the case was remanded by the US Supreme Court [official website] following their 2007 decision in Gonzalez v. Carhart [opinion, PDF; JURIST report], the Fourth Circuit reaffirmed [opinion, PDF; JURIST report] its previous ruling. The court then granted the Commonwealth of Virginia's motion to rehear the case en banc and reversed its previous decisions, upholding the law. The challenge was originally brought by the Richmond Medical Center and its medical director who alleged that the Act "impermissibly failed to include an exception for the preservation of the mother’s health" and defined "partial birth infanticide" broadly enough to ban the dilation and evacuation (D&E) [WebMD backgrounder] method of second trimester abortion, imposing an undue burden on the pregnant woman. Although the Fourth Circuit initially found the law unconstitutional because of the criminal liability it imposed on a doctor who set out to perform a lawful D&E if it became an intact D&E by accident, the majority of the en banc court found that the "overt act" requirement avoided any such liability. Additionally, the court found that Act provided sufficient notice of what conduct is prohibited and that the medical director's as-applied challenge was not backed up with sufficiently concrete circumstances, recognizing that the Act is "open to a proper as-applied challenge in a discrete case." Discussing the undue burden analysis that the courts use in abortion cases, the majority compared the case to Carhart and held that:

the Virginia Act, while different from the Federal Act, which was upheld in Gonzales v. Carhart, nonetheless provides sufficient clarity as to what conduct is prohibited to enable a doctor of reasonable intelligence to avoid criminal liability. Accordingly, it does not impose an undue burden on a woman’s right to choose an abortion and is therefore constitutional.
The dissenting justices believed that the majority's opinion departed from Supreme Court precedent:
The majority’s decision to uphold the Virginia abortion ban challenged here (the Virginia Act) marks an alarming departure from settled Supreme Court precedent: it sanctions an unconstitutional burden on a woman’s right to choose. Gonzales v. Carhart..., and longstanding precedent explicitly reaffirmed in that case hold that the Constitution protects a woman’s right to choose the standard dilation and evacuation (D&E) procedure employed in the vast majority of pre-viability second trimester abortions. The Virginia Act violates the Constitution because it exposes all doctors who perform the standard D&E to prosecution, conviction, and punishment.
US Supreme Court precedent, as seen in Planned Parenthood v. Casey [opinion text], holds that prohibitions on a woman's right to an abortion are not allowed if they impose an "undue burden."

Abortion continues to be an extremely controversial issue. Earlier this month, US Attorney General Eric Holder [official website] said that appropriate steps would be taken [statement; JURIST report] to help prevent acts of violence related to the shooting of abortion doctor George Tiller [BBC profile], who performed late-term abortions at his clinic in Kansas. In November, California and South Dakota voters rejected ballot measures [JURIST report] that sought to restrict access to abortion. The California measure attempted to amend the state constitution to require that a physician notify a parent or legal guardian of an unemancipated minor seeking an abortion and imposed a 48 hour waiting period. The South Dakota proposed law sought to prohibit abortion except in cases of rape, incest and "substantial and irreversible risk" to a woman's health. The D&E abortion procedure, according to the court, is a common procedure for second and third trimester abortions. A standard D&E, which is performed in utero, is explicitly excepted from the kinds of procedures banned by the Virginia law. But an "intact" D&E is what opponents refer to as "partial birth" abortion, and occurs when certain "anatomical landmarks" exit the womb during the procedure, which can accidentally occur during a planned "standard" D&E procedure.

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DOJ indicts 53 accused of Medicare fraud
Andrew Morgan on June 25, 2009 8:27 AM ET

[JURIST] The US Department of Justice (DOJ) [official website] announced indictments [press release] Wednesday against 53 health care providers and beneficiaries accused of submitting $50 million in fraudulent Medicare [official website] claims. The indictments, returned by a grand jury in Detroit, led to the arrest of suspects in Detroit, Miami, and Denver whom the government alleges billed the federal health care program for treatments that were "medically unnecessary and oftentimes, never provided." US Department of Health and Human Services (HHS) [official website] Secretary Kathleen Sebelius [official profile] said that the efforts of the Health Care Fraud Prevention and Enforcement Action Team (HEAT) [official website] to reduce Medicare fraud were necessary to the financial health of the program.

Our Medicare program is working closely in partnership with our own and other law enforcement operations to prevent fraud from happening in the first place. Every dollar we can save by stopping fraud can be used to strengthen the long-term fiscal health of Medicare, bring down costs and deliver better service to Medicare beneficiaries.

Attorney General Eric Holder [official profile] said that fraudulent Medicare schemes "not only undermine a program upon which 45 million aged and disabled Americans depend, but ... also contribute directly to rising health care costs."

The formation of HEAT, an interagency effort between the HHS, which oversees Medicare, and the DOJ, was announced [press release] in May, as an expansion of the Medicare Fraud Strike Force program aimed at curbing durable medical equipment (DME) fraud in Los Angeles and South Florida. Fraud reduction is part of a larger effort to control the rising cost of the Medicare and Medicaid programs. In October, the US Centers for Medicare and Medicaid Services (CMS) [official website] implemented regulations [text] denying hospitals payment for treating conditions caused by some common medical errors [HHS backgrounder]. The new regulations were authorized by the Deficit Reduction Act of 2005 [text], which directed the HHS to identify reasonably preventable conditions that result in high-cost or high-volume treatment and additional government payments.

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Israel detainee shackling practices constitute abuse: rights group
Devin Montgomery on June 25, 2009 8:04 AM ET

[JURIST] Shackling techniques used by Israel Defense Forces (IDF) and the Shin Bet Security Agency (GSS) [official websites] against Palestinian detainees are unjustifiably harsh and constitute torture, according to a report [text, PDF; executive summary, DOC] issued Wednesday by advocacy group Public Committee Against Torture in Israel [advocacy website]. The group said that the IDF and GSS employ harsh shackling techniques regardless of security risks, and at times used them to deliberately cause pain to punish or extract information from detainees. It also said that detainees were unnecessarily restrained during medical procedures. The group said it had substantial evidence of the abuse, and that the practices violate the UN Convention Against Torture [text]:

soldiers tend to shackle detainees hands in a painful and harmful manner which begins at the time of arrest and lasts during their transfer to the various interrogation facilities. Detainees are largely and systematically shackled behind their backs in combination with excessive tightening of the narrow plastic manacles, causing pain and at times lasting injury. Some of the detainees describe additional tightening of the plastic restraints with the obvious goal to causing additional suffering which is the usual answer to detainee's [sic] who complain about the pain. In the past year alone PCATI documented not less than 574 cases of painful shackling by Israeli soldiers. These figures, which are surely only the tip of the iceberg, testify to the extent of the phenomena...

Although [GSS] facilities are highly secured and there is no danger of escape, detainees are regularly shackled with their hands behind their backs, around the back of the chair upon which they are sitting. It is not uncommon for them to be held in this position for hours at a time and even for days on end. Often the detainee is left in this manner in a locked interrogation room for hours at a time, even when he is not being interrogated. Shackling of this sort, when the body is contorted occasionally results in long-term damage. This practice cannot be justified by the concerns for the safety of the interrogators or prevention of escape attempts offered by officials. The unacceptability of this claim is further demonstrated in light of the fact that these detainees – restrained in GSS interrogation chambers – are brought before police interrogators so that they can take their confession while the detainee is left unrestrained. These facts leave no room for doubt: painful shackling is designed to break the interrogee's spirit and to illegally extract a confession or information from him, in violation of Israel's obligations under the UN Convention Against Torture and other international conventions and instruments.
The group said that despite previous appeals to the Israeli government, abusive shackling continues. It called on the government to only use the restraints when necessary and to end their punitive or coercive use.

In 2006, Palestinian politician Aziz Dweik [JMCC profile] was taken to the hospital [JURIST report] for chest pains and breathing problems, which his spokesman said were due to beatings by prison guards after his arrest [JURIST report] by Israeli forces. That same year, two other Hamas officials who have since been released from Israeli custody told reporters that they were abused while detained [JURIST report].

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Leading China rights activist arrested for 'subversion'
Devin Montgomery on June 25, 2009 6:51 AM ET

[JURIST] Chinese authorities have charged prominent rights activist Liu Xiaobo with "inciting subversion of state power" [PRC Criminal Law article 105, PDF] according to a Wednesday report [text, in Chinese] by the state-run Xinhua news agency. Liu, who spent two years in prison following the Tiananmen Square [BBC backgrounder] uprising, has long challenged China's one-party rule, and co-authored Charter 08 [text], a petition calling for political reforms in the country. Liu has been held by police [AsiaNews report] since December, shortly before the petition's release. Advocacy groups Human Rights Watch (HRW) and Human Rights in China (HRIC) [press releases], as well as several foreign governments, have strongly condemned his arrest. HRIC included a statement by fellow activist Ding Zilin:

The arrest of Liu Xiaobo is a benchmark that shows yet another major contest between the forces of Chinese democracy and autocracy. Arresting Liu Xiaobo now demonstrates that in the contest between democracy and autocracy, the Chinese government has already resolved to take the latter path. But the choice of this path will allow the malignancy to continue to grow, and China’s democracy and constitutional government will meet with even greater ruin.

If found guilty, Liu could face up to 15 years in prison.

Earlier this month, rights groups marked the 20th anniversary of the 1989 uprising in Beijing's Tiananmen Square, calling for the government to investigate the incident [JURIST report] and implement changes called for by Charter 08. More recently, China was criticized for an increase in political arrests [press release; JURIST report] leading up to the 2008 Beijing Olympics, including the trial of dissident Hu Jia and the conviction [JURIST reports] of Yang Chunlin [AI profile] for the same "subversion" crime with which Liu is charged.

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

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