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Legal news from Saturday, June 27, 2009




Obama considering indefinite detention for some Guantanamo prisoners: report
Jaclyn Belczyk on June 27, 2009 6:11 PM ET

[JURIST] US President Barack Obama [official website] is considering issuing an executive order for the indefinite detention [AP report] of some Guantanamo Bay [JURIST news archive] detainees in order to facilitate the closure of the facility, two administration officials told the Associated Press Friday. According to the report, the move is being considered in response to Congress's reluctance to provide funding for the facility's closure without a firm plan for the disposition of detainees in place. No plans have been finalized, and the executive order, if issued, would not likely take effect until the 2010 budget year begins in October. Currently there are 229 detainees at the Guantanamo Bay facility, and the indefinite detention order would only apply to a small number deemed to dangerous to release. Others will be tried in civilian courts or in modified military tribunals, while the remainder will likely be released to other countries.

Last month, the US House of Representatives passed a spending bill [HR 2847 materials] that denied [JURIST report] the Obama administration's request for $60 million to close the Guantanamo Bay detention center and placed limits on the government's ability to transfer detainees to the US and release detainees to foreign countries. The House Appropriations Committee Subcommittee on Commerce, Justice, Science, and Related Agencies [official website] approved an earlier version [JURIST report] of Thursday's bill that also denied Obama the funds to close the facility. In May, Obama defended his plan [JURIST report] to close down Guantanamo Bay and try its detainees in federal courts and modified military tribunals. Obama's speech came a day after the US Senate passed an amendment [JURIST report] eliminating $80 million intended to be used for the closure of Guantanamo until the president provides a "comprehensive, responsible plan" to do so.






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Canada high court rules children under 16 have some say over medical treatment
Ximena Marinero on June 27, 2009 12:29 PM ET

[JURIST] The Canadian Supreme Court [official website] ruled 6-1 [judgment] Friday that children under the age of 16 have the right to make decisions over their own medical treatment if they can demonstrate their decision-making ability, but upheld the constitutionality of statutory schemes that balance the best interests of the child with the right to individual autonomy. The case was brought by a minor who received a blood transfusion despite refusing treatment on the basis of her religious beliefs. A Manitoba court overrode her wishes and authorized the treatment that doctors and the Director of Child and Family Services considered to be in her best interests. The Supreme Court upheld the controlling Manitoba law, which gives minors no control over their medical treatment, but reasoned that:


Interpreting the best interests standard so that a young person is afforded a degree of bodily autonomy and integrity commensurate with his or her ability to exercise mature, independent judgment navigates the tension between an adolescent's increasing entitlement to autonomy as he or she matures and society's interest in ensuring that young people who are vulnerable are protected from harm.

In the US, the debate over the right to refuse medical treatment has been illustrated recently by the case of Daniel Houser [FindLaw materials], whose parents refused treatment of their son based on religious reasons. The state may only interfere [JURIST report] with the rights of fit parents to make decisions over their children for compelling reasons like protecting the safety and well-being of their children. In the UK, children under 18 [NHS materials] who have "the intelligence and ability to understand fully what is involved in a medical procedure ... are considered able to give their permission."





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French Polynesia court dismisses nuclear compensation cases
Ximena Marinero on June 27, 2009 9:58 AM ET

[JURIST] The Labor Tribunal of Papeete [official website, in French] in French Polynesia [official website, in French] on Friday considered [press release, PDF, in French; statement, DOC, in French] for the first time a demand brought directly against the French Atomic Energy Commission (CEA) [official website, in French] by or on behalf of eight former South Pacific test site workers. Of the eight cases, the court dismissed three nuclear compensation cases for lack of proof and procedural difficulties, but examined five of them. Damages were awarded only to each of the three children of one deceased worker worth $11,000, but dismissed the widow's claim based on current law. The judge ordered further medical investigation for four of the remaining compensation cases, of which two former workers are still alive. The costs for such examinations will be paid by the CEA or the Experiment Center of the Pacific (CEP). Claimants in all eight cases had petitioned for a pension from the Caisse de Prevoyance Social, the Tahitian organism charged with ensuring social security, but were rejected due to local law on statutes of limitations and because the diseases are not officially part of the radiation induced diseases that the CPS recognizes. Moruroa e Tatou [advocacy website, in French], the organization of former workers from the test sites of Moruroa and Fangataufa, is committed [Radio Australia transcript] to continue pursuing the claims that were dismissed by the judge based on current law. The organization's president Roland Oldham decried the amount awarded in damages by the court for the deceased worker's children as "a very bad joke" and expressed hope that the Nuclear Compensation bill under current consideration [Tahiti Presse report, in French] in France will improve former worker's prosepects for recovery by changing the required burden of proof. The French parliament will vote on the bill on June 30.

Earlier this month, the British High Court of Justice ruled [judgment, PDF; JURIST report] that military veterans involved in nuclear tests have the right to sue the Ministry of Defense for injuries resulting from exposure to radiation, but recommended mediation as a means for achieving a settlement citing the uncertainties of litigation and the age of the veterans. Recently, the Tokyo High Court granted an appeal [JURIST report] to consider 30 people for official recognition as atomic bomb victims resulting from the US atomic bomb attacks on Hiroshima and Nagasaki in August, 1945. Earlier this year, the US Court of Appeals for the Federal Circuit [official website] affirmed the dismissal [opinion, PDF] of complaints brought by the people and descendants of the Bikini and Enewetak Atolls seeking further compensation arising out of bomb testing in the 1940s and 1950s.






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