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Legal news from Friday, July 10, 2009

Kurdistan parliament delays constitutional referendum
Andrew Morgan on July 10, 2009 2:53 PM ET

[JURIST] The Kurdish Parliament [official website] announced [press release, in Arabic] Friday that it was postponing a public referendum on approval of the Constitution of Kurdistan [text, in Arabic]. The vote had previously been scheduled to coincide with parliamentary elections later this month, but parliamentary president Adnan Mufti [official profile] said that the election commission was unable to organize both votes on the same day for logistical reasons. MPs in the semi-autonomous region of Iraq approved [AFP report] the constitution by a vote of 96-15 in June.

Kurdistan's constitution has been controversial in Iraq. Last month, Shi'ite, Sunni and secular members of the Iraqi Parliament [official website, in Arabic] criticized [AFP report] the constitution, saying that its broad assertions of power and claim to disputed areas such as Kirkuk [GlobalSecurity backgrounder] made it both politically divisive and unconstitutional [IOR report]. In July 2008, Kurdish members of the Iraqi Parliament walked out [JURIST report] to protest a proposed election bill that would establish a provincial council in Kirkuk to include equal numbers of Kurdish, Arabs and Turkmeni representatives.

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African Union panel recommends cooperating with ICC Bashir arrest warrant
Devin Montgomery on July 10, 2009 1:25 PM ET

[JURIST] An African Union (AU) [official website] panel [meeting materials, DOC] led by former South African president Thabo Mbeki [ANC profile] recommended Friday that the AU cooperate with International Criminal Court (ICC) [official website] efforts to arrest Sudanese president Omar al-Bashir [BBC profile; JURIST news archive] on charges of war crimes and crimes against humanity [JURIST report]. The recommendation comes in stark contrast to a vote by the full AU last week not to cooperate with the ICC [JURIST report] on the arrest. Mbeki said the panel made its recommendation on the principle that those sought by international courts should be required [Reuters report] to face the charges against them. Leaders who have opposed the warrant for Bashir's arrest argue that it poses a threat [JURIST report] to Sudan's peace process.

Al-Bashir is accused of leading the systematic harassment and murder of members of the Fur, Masalit, and Zaghawa ethnic groups under the pretext of counter-insurgency since 2003. A controversial warrant [JURIST news archive] for his arrest had long been sought by ICC Prosecutor Luis Moreno-Ocampo [official profile], who in July 2008 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]. The court had originally refused to charge Bashir with genocide, but prosecutors appealed that decision [JURIST report] earlier this week.

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UK police begin investigation into alleged abuse of Guantanamo detainee
Christian Ehret on July 10, 2009 12:40 PM ET

[JURIST] The UK Metropolitan Police Service (MPS) [official website] announced Friday that it is investigating the alleged mistreatment [press release] of an Ethiopian Guantanamo Bay [JURIST news archive] detainee by British intelligence officers. Binyam Mohamed [Reprieve profile; JURIST news archive], who was arrested in Pakistan in 2002, claims that while he was held in Pakistan for three months he was tortured by Pakistani agents [Independent report] and interrogated by FBI and MI5 agents complicit in his abuse. Binyam was later transferred to Morocco, allegedly as part of the CIA's extraordinary rendition program [JURIST news archive]. Binyam also claims that British agents supplied torturers in Morocco with questions. According to the announcement, the MPS team assigned to the case will work closely with the Crown Prosecution Service [official webpage] throughout the investigation.

In May, London High Court judges agreed to reconsider a prior decision [JURIST reports] to redact information from a ruling regarding Binyam after it was challenged on the grounds that the information may be essential to his defense. Following four years of detention at Guantanamo, Binyam was returned to the UK in February. He was originally sent to the prison based on suspicion of war crimes in connection with an alleged involvement with al Qaeda attacks on the US. The charges against him were dismissed [JURIST report] in October 2008.

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China accuses Australia mining company employees of stealing 'state secrets'
Andrew Morgan on July 10, 2009 12:25 PM ET

[JURIST] Chinese authorities on Wednesday detained four employees of Australian mining company Rio Tinto [corporate website] on suspicion of stealing 'state secrets' during stalled iron ore price negotiations. Rio Tinto's Shanghai manager Stern Hu, who is an Australian citizen, along with three of the company's Chinese employees are accused [Xinhua report] of bribing officials and steel industry executives in order to obtain information that would be advantageous during negotiations. Australian Foreign Minister Stephen Smith [official website] said that the government "has continued its efforts to secure consular access to" Hu, and had notified [press release] Chinese authorities of its intent to conduct a consular visit on Friday. Rio Tinto spokesman Tony Shaffer said that the company was not aware [Bloomberg report] of any evidence supporting the accusations. Chinese authorities said that they would handle [Xinhua report] the case "according to the law." On Friday, an executive from Chinese steelmaker Shougang Group [corporate website] was also detained [CNN report] in connection with the Rio Tinto investigation.

Last month, Chinese lawmakers considered [JURIST report] a revised version of the country's sweeping state secrets [JURIST news archive] law to address Internet leaks of classified data. In June 2007, Human Rights in China [advocacy website] released a report [text; JURIST report] saying that the state secrets system in China gives the government virtually complete power to halt the free flow of information, "undermining healthy governance and rule of law." In November 2006, Hong Kong reporter Ching Cheong [advocacy website; SCMP Q/A] began a 5-year prison term [JURIST report] for passing state secrets to Taiwanese intelligence, after the Beijing Higher People's Court affirmed [JURIST report] the sentence on appeal. He was released [press release, in Chinese] in 2008 after serving half of the sentence.

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Somalia violence may constitute war crimes: UN rights commissioner
Christian Ehret on July 10, 2009 11:15 AM ET

[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] said Thursday that human rights violations committed during recent Somalian conflicts may amount to war crimes [press release]. Pillay said that ongoing violence between Islamist rebels and the newly-formed government has resulted in hundreds of civilian deaths, despite a peace accord signed last year. Pillay's office reported that the rebel groups, Al-Shabab [Economist backgrounder] and Hisb-ul-Islam, have carried out extrajudicial executions, planted explosives in civilian areas and used civilians as shields. Both rebel and government fighters have allegedly used torture, indiscriminately fired mortars into civilian-populated areas and recruited child soldiers. Calling for the violence to stop, Pillay said perpetrators should be held responsible:

There needs to be a much greater effort to protect civilians. Displaced people and human rights defenders, aid workers and journalists are among those most exposed, and in some cases are being directly targeted. ... The gathering of evidence, by all who are in a position to do so, has to continue so that those committing these terrible crimes in Somalia will one day receive their due punishment before a court of law, and their victims will finally see justice being done.
Pillay said that human rights violators should be brought to justice, possibly for war crimes, once order is restored in the country. Since May, over 200,000 people have fled Mogadishu due to the conflicts.

Somalia has endured a lengthy civil war and several rounds of failed peace talks [BBC timeline] since the collapse of its last civil government in 1991. Last month, the Office of the UN High Commissioner for Refugees condemned violence [JURIST report] inflicted upon civilians in Mogadishu as a violation of international human rights law. In April, the Somali parliament, meeting in Djibouti to avoid violence in Mogadishu, voted to adopt [JURIST report] Islamic Sharia law [CFR backgrounder; JURIST news archive] as part of a cease-fire agreement with the country's Hizb al-Islamiya and Al-Shabaab rebels. Somali President Sharif Sheikh Ahmed [BBC profile] expressed his support [JURIST report] for the adoption of a moderate form of Sharia in March as part of peace talks with the rebels.

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Federal judges urge simplification of sentencing guidelines
Andrew Morgan on July 10, 2009 11:12 AM ET

[JURIST] A group of federal judges on Thursday urged the US Sentencing Commission (USSC) [official website] to revise complicated and mechanical calculations used to determine federal criminal sentences. Federal circuit and district court judges praised [Bloomberg report] the 2005 Supreme Court [official website] decision in US v. Booker [opinion], which made the USSC's guidelines advisory rather than mandatory, but said that the rules remain esoteric and time-consuming in practice. Second Circuit Court of Appeals [official website] Judge Jon O. Newman [official profile] testified that the "time has come to step back from minute tinkering," adding [testimony, PDF] that

the Commission should reexamine and discard its basic premise that for every discrete increment of criminal conduct there must be a discrete increment of punishment. Then, after considering the far less complicated guideline systems in the states that have adopted sentencing guidelines, it should start all over and fashion a simplified guideline system.

Judge Brett M. Kavanaugh [official profile] of the DC Circuit Court of Appeals [official website] argued that the Booker decision has increased disparity in federal sentences by allowing judges a degree of discretion that may not be based on legal grounds. He said that the federal guidelines should not be made entirely advisory, in order to guarantee some consistency in sentencing. The judges met [agenda] with the USSC at the Court of International Trade [official website] in New York as part of the commission's effort to gather information regarding its Federal Sentencing Guidelines [USSC materials].

Last month, US Attorney General Eric Holder [official profile] called for a review of disparities between sentencing guidelines for powder and crack cocaine, echoing concerns raised [JURIST report] by Assistant Attorney General for the Criminal Division Lanny Breuer [official profile] in April. 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]. In February 2008, then-US Attorney General Michael Mukasey unsuccessfully urged the Senate to block the amendment's retroactive effect [JURIST reports].

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Turkish president signs law allowing civilian courts to prosecute military personnel
Andrew Morgan on July 10, 2009 10:19 AM ET

[JURIST] Turkish President Abdullah Gul [official website, in Turkish] on Thursday approved a law that would allow the prosecution of military personnel in civilian courts and would prevent military prosecution of civilians during peacetime. Gul said that the law was necessary for accession [JURIST report] to the European Union (EU) [official website], but suggested [BBC report] that parliament amend the law to clarify the civil court's jurisdiction over service members. Opposition Republican People's Party (CHP) [party website] deputy chairman Onur Oymen [personal website] said that the law was "technically flawed and unconstitutional," and vowed to challenge [Hurriyet report] the law in the Constitutional Court. Former Justice Minister Hikmet Sami Turk called the law unconstitutional and has questioned [Hurriyet report] the circumstances under which it was passed by parliament last month. Bekir Bozdag [official profile, in Turkish], an MP from Gul's Justice and Development Party (AKP) [party website, in Turkish], said that the law is constitutional [Cumhuriyet report, in Turkish] and serves to protect the political sphere from military influence, not inject politics into military affairs.

Constitutional reforms are necessary for Turkey's accession to the EU, since its constitution was written under military rule and limits freedom of expression and religion. On Sunday, Turkish military officials sent a letter [JURIST report] to Gul urging him not to approve the law because it runs counter to Article 145 [text] of the Turkish Constitution, which outlines the responsibilities of the military justice system. In May, secular judges in Turkey warned [JURIST report] the ruling AKP that proposed constitutional amendments were going too far in promoting an Islamist agenda. Earlier this year, a report [text, PDF, in Turkish] by advocacy group Tesev [advocacy website] argued that Turkish property rights still fell short [JURIST report] of those required to join the EU. Last year, European Commission President Jose Manuel Barroso [official profile] addressed the Turkish parliament [JURIST report] to applaud the government's efforts to reform a controversial provision of the Turkish penal code [JURIST report] but stressed that further efforts would be necessary.

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Afghanistan revises marital sex provisions in personal status law
Christian Ehret on July 10, 2009 9:55 AM ET

[JURIST] The Afghan government has revised a controversial law which appeared to legalize marital rape, according to statements made by government officials on Thursday. The provisions of the Shi'ite personal status law [Reuters backgrounder] requiring a wife to submit to sex with her husband were removed [AP report] along with other provisions, following international condemnation and protests. Afghan President Hamid Karzai [BBC profile] pledged to amend the original law [JURIST report] to align it with international human rights standards, reportedly claiming to have not realized its effects [Reuters report] due to the law's length and theological language. The law only applies to the country's Shi'a population and no longer regulates spousal sexual relations or requires women to ask permission from their husbands to leave their homes.

The Afghan law elicited strong reactions from outside and within the country. In April, Karzai submitted the law to the Ministry of Justice [JURIST report] for review after suspending it and promising revisions. Key Shi’ite cleric Mohammad Asif Mohsseni defended the law [JURIST report], chastising Western critics for interfering with Afghan democracy. Following Mohsseni's endorsement and prior to Karzai's promise to revise the law, Afghan women protesters were attacked [JURIST report] by conservative Muslims while staging demonstrations and had to be rescued by police forces. US President Barack Obama [official profile] called the law "abhorrent," saying that respect for women and their freedom is an important principle [transcript text] that all nations should uphold. Karzai's decision to sign the law [JURIST report] was one of several actions that Karzai has been criticized for since his appointment as Afghanistan's interim president in 2002.

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Suu Kyi trial resumes with new witness testimony
Devin Montgomery on July 10, 2009 9:49 AM ET

[JURIST] The trial of Myanmar pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive] resumed Friday with the testimony of Khin Moe Moe, a member of Suu Kyi's National League of Democracy (NLD) [party website] party. Suu Kyi is charged with violating the terms of her house arrest by allowing an American to stay at her home, but Khin Moe Moe argued that she is being tried under a version of the country's constitution that is no longer valid [AP report]. Suu Kyi has also argued that the government guards at her house should have turned the man away. Khin Moe Moe was originally banned from testifying, but is now one of two witnesses who were allowed [JURIST reports] to testify in her defense. The hearing was conducted in the prison in which Suu Kyi is being held under tight security, and will resume on July 24. She faces up to five years in prison if convicted.

In June, a Myanmar court sentenced [JURIST report] two members of the NLD to 18 months in prison after leading prayers for Suu Kyi's release. Her arrest was controversial and highly criticized [JURIST report] by the international community. She has spent 12 of the past 18 years in prison or under house arrest for alleged violations of an anti-subversion law [text, PDF]. News of Suu Kyi's trial has been met with criticism from numerous agencies and governments around the world. Human Rights Watch (HRW) [advocacy website] has said the charges [HRW report] against Suu Kyi are "trumped up."

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Islamic charity seeks summary judgment on NSA wiretapping case
Andrew Morgan on July 10, 2009 8:43 AM ET

[JURIST] The Al-Haramain Islamic Foundation [JURIST news archive] on Wednesday filed [motion, PDF] a request for partial summary judgment [FRCP 56 text] concluding that the National Security Agency (NSA) [official website] illegally wiretapped several conversations between the charity and its lawyers. The organization is suing [JURIST report; EFF materials] the government for the wiretapping and is seeking both disclosure of what was intercepted and monetary damages. Al-Haramain argues that there is "no genuine issue of material fact" as to whether the NSA recorded their conversations in violation of the Foreign Intelligence Surveillance Act (FISA) [text; JURIST news archive], unless the government can produce evidence of a classified warrant to do so. The motion also rejects the government's claim that FISA is an unconstitutional intrusion on executive authority, arguing that the law overrides that authority:

If the Executive Branch were free to ignore FISA in the name of national security, then the Executive Branch would also be free, at its unfettered discretion, to ignore a judgment by this Court of defendants' liability for violating FISA. That would not bode well for the future of the constitutional separation of powers, for it would concentrate too much power in the President.
Al-Haramain notes that several prominent members of the Obama administration, including Attorney General Eric Holder, Solicitor General Elena Kagan [official profiles] and Obama himself have previously admitted that the President has neither inherent authority nor authority under the 2001 Authorization for Use of Military Force (AUMF) [text, PDF] to disregard FISA. Hearings in the lawsuit are scheduled to begin in September in the US District Court for the Northern District of California [official website].

In February, the Ninth Circuit Court of Appeals [official website] affirmed the district court's ruling [opinion, PDF; JURIST report] denying [JURIST report] a government appeal seeking to keep an NSA call log secret, despite its accidental release to Al-Haramain in 2004. The call log had been deemed a state secret [SourceWatch backgrounder; JURIST report] but the decision required the government to allow the foundation to view the document. JURIST contributor Victor Comras [official profile] said that District Judge Vaughn R. Walker had done a "truly remarkable job" balancing national security and due process [JURIST op-ed] in the case. Walker had previously dismissed the suit [JURIST report], finding that Al-Haramain lacked a cause of action because the state secrets privilege [JURIST news archive] trumped procedural requirements under FISA.

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First Circuit upholds law requiring 'buffer zone' for abortion clinic protesters
Christian Ehret on July 10, 2009 8:28 AM ET

[JURIST] A federal appeals court Wednesday upheld [opinion, PDF] a Massachusetts law [text] prohibiting people from protesting directly outside of abortion clinics. The US Court of Appeals for the First Circuit [official website] ruled that the law, which creates a 35-foot buffer zone around entrances and exits of reproductive health clinics, was a reasonable response to a significant threat to public safety. The challenge to the statute alleged a First Amendment [Cornell LII backgrounder] violation, but the court rejected that claim, affirming the district court's decision [opinion, PDF] and holding that the law merely regulated the time, place and manner in which speech may occur. The court reasoned:

The correct inquiry is whether, in light of the totality of the circumstances, a time-place-manner regulation burdens substantially more speech than necessary and, concomitantly, whether such a regulation leaves open adequate alternative channels of communication. ... [T]he 2007 Act places no burden at all on the plaintiffs' activities outside the 35-foot buffer zone. They can speak, gesticulate, wear screen-printed T-shirts, display signs, use loudspeakers, and engage in the whole gamut of lawful expressive activities. Those messages may be seen and heard by individuals entering, departing, or within the buffer zone. ... Any willing listener is at liberty to leave the zone, approach those outside it, and request more information.
The suit was brought against Massachusetts Attorney General Martha Coakley [official profile] by parties "who regularly engage in pro-life counseling" outside clinics. Among other arguments, the plaintiffs contended that, while the statute was facially content-neutral, the restrictions were enacted to curb anti-abortion speech and are based on evidence from biased sources.

Threats against abortion clinics and employees have been a longstanding concern. In the wake of the shooting of abortion doctor George Tiller [BBC report], US Attorney General Eric Holder enlisted the US Marshal Service [official websites] to offer protection [JURIST report] to other at-risk people and facilities throughout the country. Tiller's clinic, where he performed late-term abortions, was bombed in 1985 and the doctor was shot twice in 1993. Last year, the Ninth Circuit ruled [JURIST report] that the First Amendment protected an anti-abortion group's right to display graphic pictures of early-term aborted fetuses outside of a California middle school.

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Annan submits names of Kenya election violence suspects to ICC prosecutor
Benjamin Hackman on July 10, 2009 8:14 AM ET

[JURIST] Former UN Secretary-General Kofi Annan [official website; JURIST news archive] Thursday delivered the names [Guardian report] of those believed responsible for the post-election violence in Kenya [JURIST report] in late 2007 and early 2008 to the International Criminal Court (ICC) [official website] in The Hague. Annan sent a sealed envelope [ICC news release] to ICC Prosecutor Luis Moreno-Ocampo [official profile] despite a June announcement that he would give Kenya until August [JURIST report] to form a tribunal to investigate the violence before handing over the names of suspects to the ICC. Last week, a Kenyan delegation had pledged [JURIST report] to formulate a prosecution plan by September. Because Kenya is party to the Rome Statute [text, PDF], Moreno-Ocampo may prosecute suspects believed to have committed crimes over which the ICC has jurisdiction.

In late December 2007, tens of thousands of protesters took to Kenya's streets accusing Kenyan President Mwai Kibaki [official profile] of election fraud after early opinion polls suggested rival Raila Odinga [official website] was in the lead. Kibaki ultimately won the election by a narrow margin. Two months later, in a move that could have eased the violence, Kibaki and Odinga agreed [JURIST report] to write a new constitution for Kenya. Earlier this year, however, Kenya's parliament rejected [press release; JURIST report] the Constitution of Kenya (Amendment) Bill, 2009 [text, PDF], along with a Special Tribunal for Kenya Bill, 2009 [text, PDF] that would have set up a special domestic court to try persons believed to have committed post-election crimes. An estimated 1,500 people died as a result of the election violence.

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Sweden will be first EU nation to extradite Rwandan facing genocide charges
Matt Glenn on July 10, 2009 7:42 AM ET

[JURIST] Sweden will become the first European Union (EU) nation to extradite a Rwandan to his native country so that he can stand trial for his alleged role in Rwanda's 1994 genocide [HRW backgrounder], Swedish Justice Minister Beatrice Ask [official profile] announced Thursday. The announcement comes in response to a Rwandan government request [Aftonbladet report, in Swedish] for Sweden to turn over Sylvere Ahorugeze, a Tutu who headed the Rwanda Civil Aviation Authority [official website] during Rwanda's civil war. Ahorugeze had been living in Denmark for several years as a refugee before being arrested in Sweden. In May, the Supreme Court of Sweden [official website] ruled [JURIST report] in favor of his extradition. He is expected to arrive in Rwanda within three weeks.

In May, a Rwandan Hutu was the first to be convicted [JURIST report] under Canada's new Crimes Against Humanity and War Crimes Act [text, PDF]. In April, the UN Human Rights Committee (UNHRC) [official website] called on the Rwandan government to investigate reports of killings [JURIST report] during and after the uprising by the Rwandan Patriotic Army. In March, UN Secretary General Ban Ki-Moon [official profile; JURIST news archive] pledged his ongoing support [JURIST report] for the International Criminal Tribunal for Rwanda [JURIST news archive] (ICTR) and stressed that the international community must continue to combat genocide.

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For more legal news check the Paper Chase Archive...


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

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