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Legal news from Tuesday, June 30, 2009

Netherlands high court upholds conviction of Saddam chemical weapons supplier
Andrew Morgan on June 30, 2009 3:19 PM ET

[JURIST] The Dutch Supreme Court [official website] on Tuesday upheld [judgment, in Dutch] the 2005 war crimes conviction [JURIST report] of a Dutch businessman convicted of selling chemicals used by former Iraqi dictator Saddam Hussein [JURIST news archive] to create chemical weapons. Frans Van Anraat [BBC profile; JURIST news archive] was convicted of selling 1,100 tons of thiodiglycol (TDG) to the Iraqi government in the 1980s, which was used to produce mustard gas used against Iraqis and Iranians during the Iran-Iraq War [GlobalSecurity backgrounder]. The court found that the record, including Van Anraat's continuing role as Iraq's sole supplier of TDG after the death of 5,000 Iraqis in the 1988 Hajabla attack [JURIST report], showed that his participation was intentional. The court did not address damage awards for the victims of Saddam's gas attacks that had sued Van Anraat, saying the matter was "too complicated," and took six months off of Van Anraat's 17-year sentence to compensate for a long trial wait.

Prior to the Supreme Court hearing the case, Van Anraat had appealed his conviction on charges of complicity in war crimes to the Court of Appeal, which also upheld the conviction [judgment, in Dutch] in May 2007. Dutch prosecutors have appealed [JURIST report] Van Anraat's acquittal on complicity in genocide charges, which carry an additional 30-year sentence if proven. Saddam Hussein also stood trial on genocide charges related to the Anfal Campaign [HRW backgrounder], including the Halabja attacks, but was executed [JURIST op-ed] on unrelated charges before trial was complete.

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EPA grants California request to regulate vehicle emissions
Andrew Morgan on June 30, 2009 2:53 PM ET

[JURIST] The Environmental Protection Agency (EPA) on Tuesday granted permission [press release; waiver, PDF] to California to enforce its own greenhouse gas emissions standards. EPA Administrator Lisa Jackson [official profile] said that "the decision puts law and science first," and reinforces an automaker-backed [AFP report] agreement on tighter national vehicle emissions standards announced [JURIST report] last month by US President Barack Obama [official profile]. Referring to the previous denial [text] of the waiver, Jackson said that Tuesday's decision marked a return to the "traditional legal interpretation of the Clean Air Act that has been applied consistently during the past 40 years." Granting the waiver allows California and 13 other states that have adopted California's standard to begin applying tighter restrictions to 2009 model year cars and light trucks, in advance of the 2012 national restrictions.

California has been seeking permission [EPA materials] from the EPA to set its own vehicle emission and greenhouse gas standards since 2005. The request was initially denied [letter, PDF] in December 2007, on the grounds that the regulations were aimed at addressing global climate change and that California was limited to "address[ing] pollution problems that are local or regional." The EPA reconsidered [JURIST report] California's request earlier this year after being directed [memorandum; JURIST report] by Obama to do so. In May 2008, a report by the US House Committee on Oversight and Government Reform found that the Bush White House had influenced the March 2008 decision and that the administration later refused to turn over requested documents [JURIST reports] concerning the decision to the committee, citing executive privilege.

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Minnesota high court declares Franken winner of US Senate race
Jaclyn Belczyk on June 30, 2009 2:51 PM ET

[JURIST] The Minnesota Supreme Court [official website] on Tuesday declared [opinion, PDF] Democrat Al Franken the winner of the state's 2008 US Senate race over incumbent opponent Norm Coleman [campaign websites]. In an unanimous ruling, the court affirmed the April decision [order, PDF; JURIST report] by the Minnesota State Court for the Second District [official website], resolving the seven-month dispute. Both candidates had brought claims before the court over absentee ballots in their favor that they said were legally cast but wrongfully rejected. The lower court held that an April 7 order giving Franken 1,212,629 votes and Coleman 1,212,317 votes entitled Franken to be certified as the winner, and dismissed claims by Coleman that the count either included votes which had been counted twice, or should have included votes cast in his favor which still would not have given him more votes than Franken. In affirming that decision, the Supreme Court wrote, "we conclude that appellants have not shown that the trial court's findings of fact are clearly erroneous or that the court committed an error of law or abused its discretion."

Minnesota Governor Tim Pawlenty [official website] said Sunday that he would certify Franken as senator [Politico report] if the court ruled in his favor. Amy Klobuchar (D-MN) [official website] currently serves as the sole senator of Minnesota. Absent a further challenge by Coleman to the US Supreme Court [official website], Franken would become the 60th Democratic vote in the senate, making Democrats filibuster-proof.

4:20 PM ET: Coleman has conceded.

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Spain court suspends investigation into 2002 Israel bombing of Gaza Strip
Devin Montgomery on June 30, 2009 2:42 PM ET

[JURIST] A panel for Spain's National Court [CJA backgrounder] on Tuesday ordered an end to the investigation [JURIST report] of alleged crimes against humanity committed by Israel in a 2002 attack on the Gaza Strip [NYT backgrounder]. The court reversed a May order [order, PDF, in Spanish; JURIST report] by judge Fernando Andreu [JURIST news archive] to continue the investigation despite legal challenges. The court sided with prosecutors [El Pais report] who argued that the court lacked jurisdiction because Israel has already investigated the incident. Israel's Ministry of Foreign Affairs [official website] praised the ruling, but the Palestinian Centre for Human Rights [official website], which brought the suit, said it planned to appeal [press release] the decision to Spain's Supreme Court.

Last week, the Spanish Congress of Deputies [official website, in Spanish] voted 341-2 [press release, in Spanish; JURIST report] 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 doctrine had allowed courts to hear cases such as that against Israel, and its amendment would not change the status of cases brought before its passage. Earlier this month, human rights groups urged [JURIST report] the Spanish government to continue the broad exercise of universal jurisdiction, but Israel [Haaretz report], has long called for [JURIST report] for changes to the practice. Universal jurisdiction has also been invoked by prominent Spanish judge Baltasar 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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Federal judge dismisses Afghan Bagram detainee habeas petition
Andrew Morgan on June 30, 2009 1:10 PM ET

[JURIST] A federal judge on Monday dismissed [opinion, PDF] a habeas corpus challenge brought by Afghan national Haji Wazir detained at Bagram Air Base [JURIST news archive] without charges since 2002. Judge John Bates of the US District Court for the District of Columbia [official website] dismissed Wazir's petition, finding that Section 7 of the Military Commissions Act of 2006 [text, PDF], outlining habeas corpus matters, did not violate the separation of powers principle laid out by the US Supreme Court [official website] in United States v. Klein [opinion]. Bates had ordered rehearing on the Klein question in April, after granting habeas petitions [JURIST report] filed by three non-Afghan detainees held at Bagram. Bates said Wazir's case required different consideration under Boumediene v. Bush [opinion, PDF; JURIST report], since his release was likely to cause "friction with the host country." Bates said he would not consider altering his April judgment in light of new evidence presented by Wazir without a motion for reconsideration under Federal Rule of Civil Procedure 59(e) or 60(b) [text].

Earlier this month, Bates certified and suspended [JURIST report] his April order, allowing an interlocutory appeal on whether the detainees may invoke the Constitution's Suspension Clause [text]. The DC District Court has been the venue for many habeas challenges, especially for Guantanamo detainees suspected of involvement with terrorism. In April, DC Circuit Judge Ellen Huvelle ordered [text, PDF] that Afghan Guantanamo Bay [JURIST news archive] detainee Mohammed Jawad [ACLU materials; JURIST news archive], detained since he was a teenager, be allowed to challenge his detention in federal courts without delay. Last month, Jawad's military lawyers petitioned [JURIST report] the Supreme Court of Afghanistan [official website] to demand his release from the facility. Also last month, former Guantanamo detainee Lakhdar Boumediene [BBC profile], whose Supreme Court challenge secured detainees' ability to challenge their detention in federal court, was released and sent to France [DOJ press release; JURIST report].

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China postpones mandatory installation of Internet filtering software
Devin Montgomery on June 30, 2009 12:59 PM ET

[JURIST] The Chinese Ministry of Industry and Information Technology (MIIT) [official website, in Chinese] announced Tuesday that it would delay [press release, in Chinese] the mandatory installation of controversial "Green Dam" Internet content filtering software. The software would block websites containing content such as pornography, drugs, homosexuality, or violence, and was scheduled to be installed on all computers sold in the country after July 1. China has said that while the software would be installed on all computers, it would be up to user to decide whether to run the program [JURIST report]. The MIIT said the software would still be available for download until a later launch date, and reiterated that it felt the software was necessary for protecting children from "harmful" online content.

Last week, a spokesperson for the US State Department [official website] said the country was concerned [press briefing; JURIST report] over China's decision to require the software, arguing that it could harm trade and the free flow of information. Earlier this month, Chinese human rights lawyer Li Fangping challenged the policy [JURIST report], demanding public hearings to determine if the requirement is lawful and reasonable. In March 2008, the government temporarily blocked Internet users [JURIST report] in the country from accessing the video-sharing website YouTube [corporate website] after videos of a recent government crackdown [YouTube video] on Tibetan protesters challenging Chinese rule were posted on the site.

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Niger opposition leader claims presidential dissolution of high court is 'coup'
Andrew Morgan on June 30, 2009 9:52 AM ET

[JURIST] An opposition politician in Niger on Tuesday accused President Mamadou Tandja [BBC profile] of committing a coup d'etat by annulling the West African country's Constitutional Court on Monday. Bazoum Mohamed of the Nigerien Party for Democracy and Socialism (PNDS) [party website] said that Tandja did not have the right to assume emergency powers [BBC reports], disband the court [Reuters report], or dissolve the parliament [BBC report]. Marou Amadou, a prominent political opponent of Tandja, was arrested [Times report] after urging military intervention. Niger's military has pledged to remain neutral [AFP report] in the conflict and urged political leaders to focus on dialogue.

The political unrest in Niger stems from an attempt by Tandja to remain in power for a third term despite a two-term constitutional limit. In May, the Constitutional Court ruled [Pana report] that plans to hold a referendum on allowing a third term violated the 1999 Constitution [text, in French]. Tandja responded to the ruling by dissolving parliament and assuming emergency powers.

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Germany constitutional court approves EU reform treaty
Andrew Morgan on June 30, 2009 8:42 AM ET

[JURIST] The German Constitutional Court [official website, in German] ruled [judgment; press release] Tuesday that the European Union (EU) [official website] reform treaty, also known as the Lisbon Treaty [EU materials; text], is compatible with the German Basic Law [text], but requires parliamentary reforms before it can be ratified. German President Horst Kohler [official profile, in German] had withheld his signature after the measure was passed by the German parliament and asked the court to review the constitutionality of the treaty in light of allegations by some MPs that it undermined Germany's sovereignty. Addressing these concerns, the court said:

With the entry into force of the Treaty of Lisbon, the Federal Republic of Germany will remain a sovereign state. In particular, the substance of German state authority is protected. The distribution of the European Union's competences ... takes place according to the principle of conferral and according to other mechanisms of protection.... The transfer of sovereign powers to the European Union ... is not called into question by individual provisions of the Treaty of Lisbon.

The court also ruled that domestic reforms, requiring that the German representative in the European Council have parliamentary approval before moving forward, are necessary before the treaty ratification can be completed.

Efforts to ratify [JURIST news archive] the treaty in all of the 27 member countries required for approval have met some obstacles. Although the treaty has been approved in 23 countries, Irish voters rejected [JURIST report] the treaty last June, leading Czech President Vaclav Klaus [official website] to refuse to sign the measure, despite approval [JURIST report] by the Czech Senate [official website]. Last July, Polish President Lech Kaczynski [official website] refused to sign [JURIST report] the treaty despite parliamentary approval, calling it "pointless" in light of the Irish rejection. Ireland agreed this month to hold a second referendum [JURIST report] after EU leaders agreed to certain concessions [presidency conclusions, PDF].

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ICC prosecutors to pursue genocide charges against Sudan president
Eszter Bardi on June 30, 2009 7:30 AM ET

[JURIST] Prosecutors at the International Criminal Court (ICC) [official website] said Monday that they would attempt to charge Sudanese President Omar al-Bashir [BBC profile; JURIST news archive] with genocide. The announcement [Reuters report] came after the ICC ruled last week to permit prosecutors to appeal the decision not to issue genocide charges [JURIST report] against al-Bashir. More evidence will need to be proffered in order for the court to overturn its decision on the genocide charge. The prosecution plans to file its appeal in early July.

The prosecution sought leave of the court in March to appeal the ICC's decision not to indict al-Bashir on three counts of genocide. Instead, al-Bashir was charged with seven counts of war crimes and crimes against humanity. The controversial arrest warrant [JURIST news archive] had been sought by ICC Prosecutor Luis Moreno-Ocampo [official profile], who in July filed preliminary charges [text, PDF; JURIST report] against al-Bashir alleging genocide, crimes against humanity, and war crimes committed in the Darfur region in violation of Articles 6, 7, and 8 of the Rome Statute [text].

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Uighur detainees decision delayed to next Supreme Court term
Jay Carmella on June 30, 2009 6:55 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] closed its 2008 term Monday without deciding whether to hear the case of the remaining 13 Chinese Uighur Muslims at Guantanamo Bay [JURIST news archives]. The Court did not provide a reason [AFP report] for delaying its decision. Court watchers believe the Court's decision may have been based on their desire to avoid interference with a potential diplomatic solution [SCOTUSblog report]. If the remaining Uighurs are transferred overseas before the Court decides to hear their case, it will likely be dismissed as moot. If not, the Court may reach a decision on whether to take the case in October when the 2009 term begins.

Earlier this month, four of the Uighurs being held at Guantanamo Bay were transferred to Bermuda [JURIST report]. Palau President Johnson Toribiong has said that his government had reached an agreement with the US [JURIST report] to accept all 17 Uighur detainees, but US officials said later that no final agreement had been reached. 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]. The Chinese government has repeatedly demanded the repatriation of the Uighurs, maintaining that they are members of the East Turkestan Islamic Movement (ETIM) [CFR backgrounder], a militant group that calls for separation from China and has been a US-designated terrorist group since 2002. The US has previously rejected China's calls to repatriate [JURIST report] the Uighurs, citing fear of torture upon their return.

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

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