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Legal news from Thursday, November 12, 2009




Second Circuit rules CIA did not infringe ex-agent Plame's free speech rights
Brian Jackson on November 12, 2009 4:20 PM ET

[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] Thursday that the Central Intelligence Agency (CIA) [official website] did not violate the free speech rights of former agent Valerie Plame [JURIST news archive] when it prevented her from revealing certain classified information in her recently published memoir. Specifically, Plame and her publisher Simon & Schuster [corporate website] alleged that the CIA infringed her right to free speech by preventing her from discussing information about her employment with the CIA prior to 2002. Plame put forth two theories in the suit: first that the CIA had already disclosed the dates of her pre-2002 employment, and, second, that the dates of her pre-2002 employment are so widely known following the controversy surrounding the disclosure of her identity that the CIA's insistence on keeping that information classified is unreasonable. The court rejected both theories, finding that Plame was the individual responsible for the release of the employment dates, and that classified information, though publicly available, is still classified:


As noted, when Ms. Wilson elected to serve with the CIA, she accepted a life-long restriction on her ability to disclose classified and classifiable information. That Ms. Wilson's service may have been cut short by the failure of others to respect the classified status of her employment may well have warranted investigation. But these circumstances do not absolve Ms. Wilson of her own secrecy obligations.

Neither Simon & Schuster nor Plame released statements following the court's ruling. Plame's memoir, Fair Game: My Life as a Spy, My Betrayal by the White House was published in 2007.

Last month, a federal judge ordered [JURIST report] the Department of Justice to release documents related to an interview regarding the leak with former vice president Dick Cheney. A jury previously convicted [JURIST report] Cheney aide I. Lewis "Scooter" Libby [JURIST news archive] of perjury and obstruction of justice in connection with the investigation into the leak of Plame's identity. The US Court of Appeals for the District of Columbia Circuit later disbarred [JURIST report] Libby because of his conviction. In July 2007, a federal judge dismissed [JURIST report] a lawsuit brought by Plame against members of the Bush administration, finding lack of jurisdiction over tort law claims.





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Intel settles antitrust dispute with rival AMD for $1.25 billion
Brian Jackson on November 12, 2009 3:16 PM ET

[JURIST] Computer microchip manufacturer Intel on Thursday agreed to settle all outstanding legal issues with rival Advanced Micro Devices (AMD) [corporate websites] by paying paying its competitor $1.25 billion. The terms of the settlement were laid out in press releases by both Intel and AMD [texts], with the major provisions being a cessation of three antitrust suits by AMD against Intel, a promise by Intel to abide by new business practices, and a patent cross-licensing agreement between the two companies. On a conference call [transcript, PDF] with the media, AMD president and CEO Dirk Meyer thanked worldwide regulatory agencies for their work in bringing about a level playing field in the computer microchip market, and promised a bright future for AMD. The Federal Trade Commission (FTC) [official website], which had been investigating Intel's practices for violation of antitrust law, had no official comment on the settlement, but it is believed that the agreement will not shield Intel [WSJ report] from ongoing investigations.

The agreement with AMD settles at least some of the many issues Intel has faced regarding its business methods both in the US and around the world. Last week, the New York Attorney General filed an antitrust suit against Intel [JURIST report], alleging that the manufacturer illegally cornered the microchip market by threatening computer manufacturers if they used AMD chips and obtained exclusive licensing agreements from those companies in exchange for large payments. In July, Intel appealed [JURIST report] a € 1.6 million fine levied by the European Commission for violating European Union antitrust laws. Similarly, in June 2008, the Korean Fair Trade Commission fined Intel [JURIST report] $25 million for unfair practices. That same month, the FTC opened a probe [JURIST] into alleged anticompetitive business activity undertaken by Intel.






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Guantanamo detainee appealing suspension of habeas corpus proceedings
Carrie Schimizzi on November 12, 2009 2:48 PM ET

[JURIST] A Tajikistan native held at Guantanamo Bay [JURIST news archive] has challenged [appellate brief, PDF] a federal judge's decision to suspend his habeas corpus proceedings after he was cleared for transfer to Tajikistan. Umar Hamzayevich Abdulayev alleges that Judge Reggie Walton of the US District Court for the District of Columbia [official website] abused his discretion in staying indefinitely his petition for habeas corpus after the Joint Task Force [official website] responsible for reviewing Guantanamo Bay detainees had approved him for transfer to Tajikistan. According to the appeal, filed Tuesday in the US Court of Appeals for the District of Columbia Circuit [official website], Abdulayev fears torture and persecution if returned to Tajikistan. Abdulayev argues that the order to stop the review of his case deprives him of his right to challenge his detention and his right not to be transferred to a country where he will be persecuted. Abdulayev's lawyers argued:


The district court eviscerated the clear directives of the Supreme Court of the United States and the plain language of the habeas corpus statute that detainees at Guantanamo have a right to challenge their detention by petitioning the district court for a writ of habeas corpus, that the detainees are entitled to a prompt hearing and that "the costs of delay can no longer be borne by those who are held in custody" — delay that is now rapidly approaching its eighth year.

Abdulayev argues that he is entitled to release into the US if not transferred to a safe country of asylum.

Also this week, lawyers for four Chinese Muslim Uighurs detained at Guantanamo Bay [JURIST news archive] filed a petition for certiorari [JURIST report] with the US Supreme Court [official website], taking issue with the government policy for transferring detainees. The Uighurs are challenging a DC Circuit ruling [JURIST report] that US courts cannot prevent the government from transferring detainees held at Guantanamo Bay to foreign countries on the grounds that detainees may face prosecution or torture in the foreign country. The case, known as Kiyemba II, is separate from a case that the Court agreed to hear last month, known now as Kiyemba I, in which the Uighurs are challenging a DC Circuit ruling that blocked their release [JURIST reports] into the US.





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Delay in Guantanamo closure due to White House failings: report
Dwyer Arce on November 12, 2009 1:14 PM ET

[JURIST] The likely failure to meet the self-imposed deadline for the closure of the Guantanamo Bay detention facility [JURIST news archive] is due to several missteps by the Obama administration, according to a report [text, PDF] released Tuesday by the Center for American Progress (CAP) [advocacy website]. In the report, the CAP criticized the White House for several shortfalls in its decision-making process. According to CAP, these shortfalls include failing to sufficiently staff the review task force and misreading Congress on key issues. The report also claims that the administration's most significant mistakes were the decisions to keep a modified version of the Bush-era military commissions and its request of Congress for $80 million to close the facility and relocate the detainees, which provided impetus for Congressional opponents to obstruct the process. The report was quick to spread responsibility for the failure onto the previous administration and political opponents:


The challenges in closing Guantanamo have been significant and the criticism that President Barack Obama has received from many quarters has been as irresponsible as it is unrelenting. This political pressure should not cause the Obama administration to back away from necessary change. Modest reforms, while welcome, are not sufficient if it leaves the Bush administration's detention regime largely intact.

The report went on to propose several steps that should be taken by the administration in closing the detention facility, including extending the deadline to July 2010, prosecuting those held at Guantanamo in federal courts, and holding those convicted in civilian courts in prisons in the US.

On Sunday, US Attorney General Eric Holder [official profile] announced [JURIST report] that officials are conducting reviews to determine which detainees may face trials in military or civilian courts in the US. In October, Obama signed [JURIST report] the Department of Homeland Security Appropriations Act of 2010 [HR 2892 materials] into law, which allows for Guantanamo Bay detainees to be transferred to the US for prosecution. Congress also passed a bill last month amending [JURIST report] the Military Commissions Act of 2006 [text, PDF] to provide suspected terrorists with greater due process rights in military tribunals. The legislation comes after Holder announced that the Obama administration may miss its January deadline for closing the military prison at Guantanamo Bay, echoing prior statements [JURIST reports] by top administration officials.





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Somalia judge known for sentencing pirates, Islamists killed
Steve Dotterer on November 12, 2009 12:04 PM ET

[JURIST] A Somali judge known for jailing suspected pirates [JURIST news archive], human traffickers, and Islamist insurgents was shot dead Wednesday while leaving a mosque in the Puntland city of Bossaso. Judge Mohamed Abdi Aware of the Puntland high court and the Puntland Supreme Judicial Council, had recently jailed four members [IOL report] of the al-Shabaab Islamist group and had sentenced 12 suspected pirates [AFP report] to terms ranging from three to eight years. Northern Somali security minister Mohamed Said Samatar said that three suspects in the shooting have been arrested [Garowe Online report]. The judge's killing is thought to be an act of reprisal carried out by Somali gangs.

In July, the International Maritime Bureau (IMB) [official website] reported that pirate attacks around the globe have doubled [JURIST report] in the first half of 2009. The bulk of the upsurge has come from increased activity in the Gulf of Aden and Somali coastal waters, a vital shipping route providing access to the Red Sea. UN Security Council Resolution 1838 [text, PDF], passed last fall, has condemned Somali piracy and called upon member states to combat it. In an effort to curb hijackings, the European Union, the US, and other countries have deployed naval warships to the region. Somalia has had no stable central government since 1991, although Puntland and Somaliland have established governments of their own. A Transitional Federal Government [CFR backgrounder] formed in 2004 is currently the de facto head of Somalia.






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ICTY reduces sentence of Bosnian Serb general
Haley Wojdowski on November 12, 2009 10:13 AM ET

[JURIST] The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Thursday reduced the sentence [judgment, PDF; press release] of former Bosnian Serb general Dragomir Milosevic [case materials] from 33 years to 29 years in prison. The Appeals Chamber partially affirmed the Trial Chamber's findings [judgment summary, PDF] and granted Milosevic’s appeal [defense brief, PDF] in part. The court held that evidence viewed by the Trial Chamber was not sufficient to prove beyond a reasonable doubt that Milosevic planned and ordered three shelling campaigns against the civilian population of Sarajevo. However, the court noted that "the Trial Chamber made the findings necessary for the establishment of his command responsibility for [related] sniping incidents," and therefore confirmed Milosevic's responsibility as a superior officer under Article 7(3) ICTY Statute [text, PDF]. Judge Fausto Pocar noted that the Appeals Chamber's conclusions "do not in any way diminish his active and central role in the commission of the crimes."


Milosevic did more than merely tolerate the crimes as a commander; in maintaining and intensifying the campaign of shelling and sniping the civilian population in Sarajevo throughout the Indictment period, he provided additional encouragement to is subordinates to commit the crimes against civilians.

The court held that the reversal resulted in fewer victims for which Milosevic is responsible and, therefore, has "an impact, although limited, on Milosevic’s overall culpability," consequently reducing his sentence by four years.

In December 2007, the ICTY Trial Chamber sentenced [JURIST report] Milosevic to 33 years in prison after convicting him of war crimes and crimes against humanity, including the shelling incidents in Sarajevo. Milosevic surrendered to the ICTY in 2004, and his trial began [JURIST reports] in January 2007. He was initially indicted in 1998 with Stanislav Galic, Milosevic's predecessor as commander of the Sarajevo Romanija Corps (SRK). Galic was convicted and sentenced to life in prison [JURIST report] in November 2006.





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China illegally detaining citizens in 'black jails': rights group
Megan McKee on November 12, 2009 9:44 AM ET

[JURIST] Chinese citizens are being abducted by state agents and illegally detained in "black jails" where they are subjected to a host of human rights violations, according to a report [text, PDF] released Thursday by Human Rights Watch (HRW) [advocacy website]. According to the report, the black jails are primarily used to sequester petitioners who come from rural areas to Beijing and other provincial capitals in order to pursue justice for wrongs that could not be resolved at local, lower levels of government. HRW built their report on the testimonies of 38 former detainees, including women and children, with all reporting unambiguously harsh conditions and many detailing physical and psychological abuse including beatings, sexual violence, threats, deprivation of food and sleep, and no access to legal counsel or medical care. HRW Asia advocacy director Sophie Richardson said [press release], "[t]he existence of black jails in the heart of Beijing makes a mockery of the Chinese government's rhetoric on improving human rights and respecting the rule of law." The Chinese government has systematically denied [AP report] all allegations of black jails, most recently doing so in a briefing on Thursday from Foreign Ministry [official website, in Chinese] spokesman Qin Gang.

In August, the Chinese government banned [JURIST report] the common practice of traveling to the capital of Beijing to file legal complaints. Under the new regulations, Chinese authorities will send representatives to provinces that produce many petitioners, and petitioners will also be able to file complaints online. In April, the Chinese government issued its first national plan [JURIST report] aimed at protecting human rights. The plan aims to protect people's rights to education, employment, medical and old-age care, and housing. It also seeks to protect ethnic minorities, promote gender equality, guarantee suspects the right to an impartial trial, and prohibit illegal detentions and the use of torture to extract confessions from suspects. The plan is based on principles found in the Universal Declaration of Human Rights [text] and the International Covenant on Civil and Political Rights [text], which the government has signed [accession chart] but not ratified [JURIST report].






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DC Catholic diocese says same-sex marriage law may force end to social services program
Christian Ehret on November 12, 2009 8:16 AM ET

[JURIST] The Catholic Archdiocese of Washington DC [organization website] pledged Tuesday to end its involvement in social services if a same-sex marriage bill [text, PDF] is approved by the city council. The religious organization claims that the bill interferes with its members' religious freedom by forcing them to choose between violating the law or abandoning their beliefs. Although the bill exempts religious organizations from having to equally "provide services, accommodations, facilities or goods for a purpose related to the solemnization or celebration of a marriage, or the promotion of marriage," the archdiocese argues that their freedom is restricted by being forced to recognize the unions by equally providing employee benefits and services to same-sex couples. CEO of DC Catholic Charities Edward Orzechowski expressed his concern [press release] that the narrow exemption language "will cause the government to discontinue our long partnership with them" and require the organization to defend their beliefs "rather than serve the poor." The current version of the bill was approved Tuesday by the council's Committee on Public Safety and the Judiciary [official website].

In July, the DC city council approved a measure [JURIST report] to recognize same-sex marriages [JURIST news archive] performed elsewhere. Church leaders and others opposing the bill sought a referendum against it but were denied on the grounds that the action violated DC's Human Rights Act [materials]. Councilman Marion Barry [official website] was the only member to oppose the measure. Earlier this month, Maine failed to become the sixth US state to allow same-sex marriages when voters vetoed [JURIST report] the state's provision.






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Spain lawyer alleges discrimination after judge orders her to remove headscarf
Ximena Marinero on November 12, 2009 7:12 AM ET

[JURIST] A Spanish lawyer said Wednesday that she has filed a complaint with the General Council of the Judiciary [official website, in Spanish] alleging abuse of power and discrimination after a National Court judge asked her to leave the courtroom for declining to remove her hijab, or Muslim headscarf [JURIST news archive]. Judge Javier Gomez Bermudez asked lawyer Zoubida Barik Edidi to leave his courtroom last month, in which she was assisting the defense but not actually representing the defendant in a terrorism trial. Edidi has also lodged a complaint with the Madrid Bar Association. The lawyer has participated in several trials in which she was not asked to remove her headscarf, and she claims that her greatest motivation for filing the complaints is so that she may be certain in the future about whether she may wear her hijab in a courtroom. Article 37 of the General Statute of the Legal Profession [text in Spanish, PDF] governs the attire of lawyers and specifies only that lawyers must appear in courts wearing a robe and may wear a biretta, or traditional cap. A lawyer's attire is limited in the statute only in that that garb must be distinctive solely to the profession and appropriate for the dignity and respect of the law and the legal profession. In September, Bermudez required [El Pais report, in Spanish] a witness wearing a burqa to uncover her face in order to testify, but allowed her to do so facing away [video, in Spanish] from the court audience.

Spain has declined to address religious symbols in secular life with a specific national policy. The Ministry of Education [official website, in Spanish] allows local school councils to determine whether to allow display of religious symbols. The Ministry of Justice [official website, in Spanish] defers to the discretion of each individual judge to decide on religious symbols in the courtroom, including attire. Other countries in Europe continue to experience tension between religious and secularist values. Earlier this month, the European Court of Human Rights (EHCR) [official website] ruled [JURIST report] that displaying crucifixes in a public school classroom violates the European Convention on Human Rights [text, PDF], eliciting outcry [JURIST report] across the Italian political spectrum. In July, a commission created by the French National Assembly [official websites, in French] began hearings [JURIST report] to consider whether to enact laws banning the wearing of burqas or other "full veils" after French President Nicolas Sarkozy [official website, in French] strongly criticized [JURIST report] the practice. Last December, the ECHR unanimously ruled [JURIST report] that there was no human rights violation when a French school expelled two students for refusing to remove their headscarves.






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