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Legal news from Monday, November 16, 2009

International prosecutors call for convention on crimes against humanity
Hillary Stemple on November 16, 2009 3:17 PM ET

[JURIST] Prosecutors from the five major international tribunals on Monday called on member states [press release] "to seriously consider the adoption of a convention on the Suppression and Punishment of Crimes against Humanity." The statement came at the end of a three-day convention and reitereated the need to fight against impunity for perpetrators of serious international crimes. Representatives from the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for Yugoslavia (ICTY), the Special Court of Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the International Criminal Court (ICC), and the Special Tribunal for Lebanon (STL) [official websites] attended the colloquium, which was held in Rwanda and hosted by the ICTR. The statement, which was unanimously adopted by the participants, also called on states to ensure their legal systems can effectively prosecute international crimes, to provide full cooperation to the all international criminal tribunals, and to become a party to the Rome Statute [text, PDF] of the ICC, if they have not already done so. Speaking at the closing ICTR President Judge Dennis Byron [official profile] spoke of the need for the tribunals to share their experiences and knowledge.

The ICC was established in 2002 in order to create a permanent international criminal court for the prosecution of "the perpetrators of the most serious crimes of concern to the international community." It is governed by the Rome Statute, which has been ratified [ICC Now website] by 110 of the 192 UN member states and signed by 139 member states. The US originally signed the treaty, but then-president George W. Bush "unsigned" it by informing the UN that the US did not intend to ratify it. Recent media reports have suggested that the Obama administration may be considering joining the ICC, but advocacy groups have urged [JURIST report] the White House not to re-sign the Rome Treaty. Other scholars have said that the time has come [JURIST op-ed] for the US to support the ICC. Other states that have refused to ratify the treaty include China, India, and Russia.

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Italy court adjourns Berlusconi tax fraud trial until January
Haley Wojdowski on November 16, 2009 2:23 PM ET

[JURIST] An Italian court on Monday reopened the tax fraud trial of Prime Minister Silvio Berlusconi [official profile, in Italian; BBC profile], but immediately adjourned it until January as a result of official business. Berlusconi was unable to attend the hearing as a result of a global food summit in Rome. Counsel for Berlusconi said that he will be unavailable for trial hearings [BBC report] until January 18 because of his responsibilities as prime minister. The charges stem from purchase of broadcasting company Mediaset [corporate website, in Italian]. Berlusconi is also scheduled to go on trial [JURIST report] on corruption charges later this month.

In October, the Italian Constitutional Court [official website, in Italian] struck down [JURIST report] the 2008 law granting immunity from prosecution to the four highest officials of the country, finding it unconstitutional. Berlusconi has faced trial on at least six occasions involving charges of false accounting, tax fraud, money laundering, embezzlement, and giving false testimony [JURIST reports]. In October 2007, Berlusconi's April 2007 acquittal [JURIST reports] on bribery charges was upheld. In 2005, Berlusconi was acquitted of corruption charges despite testimony accusing him of giving kickbacks to the late Socialist premier Bettino Craxi [JURIST report].

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Supreme Court issues summary decision in favor of defense attorney
Jay Carmella on November 16, 2009 1:18 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] issued a summary decision [opinion, PDF] on Monday in Wong v. Belmontes [docket; cert. petition, PDF], finding that a defendant's attorney was not required to present mitigating evidence that could have given prosecutors an opportunity to discuss a previous murder committed by the defendant. The Court reversed the decision of the US Court of Appeals for the Ninth Circuit, which held [opinion, PDF] that the attorney's failure to present the alternative theory resulted in ineffective assistance of counsel during sentencing. In its per curium decision, the Court found:

It is hard to imagine expert testimony and additional facts about Belmontes' difficult childhood outweighing the facts of McConnell's murder. It becomes even harder to envision such a result when the evidence that Belmontes had committed another murder - 'the most powerful imaginable aggravating evidence,' as Judge Levi put it, is added to the mix. Schick's mitigation strategy failed, but the notion that the result could have been different if only Schick had put on more than the nine witnesses he did, or called expert witnesses to bolster his case, is fanciful.

Belmontes was convicted of murdering a woman in 1981 while trying to steal a stereo from her home.

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Sierra Leone war crimes court hands over control of detention facility
Megan McKee on November 16, 2009 12:56 PM ET

[JURIST] The Special Court for Sierra Leone (SCSL) [official website] on Monday handed over its detention facility [press release, PDF] to the Sierra Leone Prison Service in a monumental step towards the court's resolution. The Sierra Leone Prison Service will use the facility, which meets international standards, to house female prisoners. Director of Prisons Moses Showers emphasized the importance of providing for the welfare of female prisoners, saying "[f]emales [sic] prisoners all over the world are a marginalized lot, Sierra Leone not being an exception. Emphasis is usually placed for male inmates, and facilities provided for detention centres are usually concentrated for the development and welfare of male inmates."

In late October, eight men judged guilty of war crimes by the court were transferred [JURIST report] to Rwanda to serve out their terms. Because Sierra Leone had no adequate prison facilities, an agreement with Rwanda allowed the men to finish their terms [Reuters report] at Mpanga prison. Three of the men, leaders of the Revolutionary United Front [GlobalSecurity backgrounder], had their appeals rejected [JURIST report] earlier in October, and will now serve sentences between 15 and 25 years. Other transferees include members of the RUF-ally Armed Force Revolutionary Council and government-backed Civil Defence Forces. With these final sentences, the SCSL has largely fulfilled its purpose and will continue taking steps close down [BBC report]. The SCSL was created in a joint endeavor by the Government of Sierra Leone and the UN to provide a forum to try those responsible for serious violations of international humanitarian law and Sierra Leonean law, committed in Sierra Leone.

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Obama adminstration to open new Bagram detention facility
Patrice Collins on November 16, 2009 12:18 PM ET

[JURIST] International human rights officials toured the new US detention facility in Parwan, Afghanistan, at the edge of Bagram Air Base [official website] on Sunday. The new facility [NYT report], which has room for 1,400 detainees, is part of the Obama administration's wider efforts to improve its Afghan detainee system [JURIST news archive] and will eventually be controlled by the Afghan government. Officials have promised greater transparency based on a case management system [press release], which will allow detainees to be informed of the charges against them and provide them with the right to challenge government witnesses. Amnesty International, Human Rights First (HRF), and Human Rights Watch [advocacy websites] called on [press release] the Obama administration Monday to make sure its detention policy conforms to international law.

Last week, HRF urged the US to reform its detention policy [JURIST report] at Bagram in order to combat counterinsurgency. In September, the American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [JURIST report] seeking information related to the treatment of prisoners at Bagram, citing fears that is becoming the "new Guantanamo." Earlier that month, the Obama administration issued new guidelines [JURIST report] allowing Bagram detainees to challenge their indefinite incarceration. Detainees will have access to members of the US military who would be able to gather classified evidence and question witnesses on behalf of any detainee challenging his detention. The military officials would not be lawyers, but they are expected to provide detainees, some of whom have been held for more than five years without charges, better representation before military-appointed review boards. The changes come amidst ongoing protests [JURIST report] by prisoners. Hundreds of Bagram detainees have been refusing shower and exercise time and have ceased participation in a family visits and teleconferences program set up by the International Committee of the Red Cross (ICRC) [advocacy website].

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Supreme Court to hear habeas corpus appeal
Jay Carmella on November 16, 2009 11:06 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in Magwood v. Culliver [docket; cert. petition, PDF]. The court limited its grant of certiorari to the first question presented, whether "[w]hen a person is resentenced after having obtained federal habeas relief from an earlier sentence, is a claim in a federal habeas petition challenging that new sentencing judgment a 'second or successive' claim under 28 USC § 2244(b) [text] if the petitioner could have challenged his previous sentence on the same constitutional grounds." The basic issue is whether a defendant can raise a challenge that could have been but was not raised in an earlier habeas petition. The US Court of Appeals for the Eleventh Circuit affirmed [opinion, PDF] the district court's decision to deny all cross-claims made by the defendant. The court of appeals reversed the district court's decision that the defendant had received ineffective assistance from counsel.

The case involves defendant Billy Joe Magwood, on death row in Alabama. Magwood was sentenced to death for murdering a county sheriff. His original death sentence was overturned in 1986, but he was later sentenced to death again. He challenged the second sentence, but the Eleventh Circuit ruled that his claim should have been raised in the first sentencing.

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Republicans opposing federal trial for 9/11 suspects
Jonathan Cohen on November 16, 2009 10:45 AM ET

[JURIST] Republican leaders on Sunday expressed strong opposition to the Obama administration's plan to pursue federal charges [JURIST report] against five men accused of conspiring to commit the 9/11 terrorist attacks [JURIST news archive]. Ranking Republican on the House Intelligence Committee [official website] Pete Hoekstra (R-MI) [official website] told [transcript, PDF] CBS's Face the Nation [media website] that he would:

do exactly what the President is doing with some of other people that they have down in Guantanamo. The President has said for some of these other - other individuals we will use military tribunals. And he hasn't really, you know, demonstrated to us as to why some are going to go into New York and be tried there and why others are going to go through military tribunals.
Former New York City mayor Rudy Giuliani [official profile] also told [transcript] Fox News Sunday [media website] that he believes the suspects should be tried in military tribunals. Meanwhile, Democratic leaders spoke out in support of the plan. Chairman of the Senate Judiciary Committee [official website] Patrick Leahy (D-VT) [official website] told Face the Nation that
What we're saying to the world is the United States acts out of strength not out of fear. ... We're the most powerful nation on Earth. We have a judicial system that's the envy of the world. Let's show the world that we can use our power, we can use our judicial system, just as we did with Timothy McVeigh and send the people and convict the people.
Secretary of State Hillary Clinton [official profile], speaking on NBC's Meet the Press [media website] agreed [transcript].

Sunday's statements are the latest in a series of partisan disagreements over how to handle the closure of the prison facility at Guantanamo Bay [JURIST news archive]. Also this weekend, Democrats spoke out in favor of a proposal to house detainees in an Illinois prison [JURIST reports], while Republicans opposed the plan. Last week the Center for American Progress (CAP) [advocacy website] issued a report [JURIST report] that said the failure to meet the self-imposed deadline for closure of Guantanamo was result of several missteps by the Obama administration. Earlier this month, the US Senate [official website] voted 54-45 [JURIST report] to defeat an amendment [S AMDT 2669 materials] to an appropriations bill [HR 2847 materials] that would have prevented Guantanamo detainees accused of involvement in 9/11 from being tried in federal courts. In October, US President Barack Obama signed [JURIST report] into law the Department of Homeland Security Appropriations Act of 2010 [HR 2892 materials], which allows for Guantanamo Bay detainees to be transferred to the US only for prosecution.

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Illinois Democrats favor transferring Guantanamo detainees to local prison
Zach Zagger on November 16, 2009 10:42 AM ET

[JURIST] Illinois Governor Pat Quinn (D) and US Senator Dick Durbin (D-IL) [official websites] expressed support [press release] Sunday for the Obama administration's proposal to move Guantanamo Bay [JURIST news archive] detainees to a facility in Northwestern Illinois. The Obama administration is reportedly evaluating [JURIST report] the Thomson Correctional Facility [IDOC backgrounder], a maximum security prison located about 150 miles west of Chicago, as a possible location to house accused terrorists. Quinn and Durbin requested that the administration conduct a preliminary economic impact analysis on the purchase of the facility for use by the Federal Bureau of Prisons [official website]. They pointed to the addition of an estimated 2,340-3,250 new jobs to the community and an estimated $790 million to $1.09 billion impact over four years as reasons to support the proposal. Durbin said the sale is a "once-in-a-lifetime opportunity" to inject a much-needed economic boost to a struggling region.

Not all local leaders are supporting the possible transfer of accused terrorists to Illinois. US Representative Mark Kirk (R-IL) [official website] issued a letter [text] Saturday to President Barack Obama, urging him not to transfer detainees to the Thomson Facility because of fears that it will lead to terrorist activity in the Chicago area. While it is not clear whether the prison would be the only domestic facility for Guantanamo transferees, in order to hold detainees in US, Congress would have to change a law specifically prohibiting detainee transfers into the US except for trials. Last week, US Attorney General Eric Holder [official website] announced [JURIST report] that some of the detainees accused of perpetrating the 9/11 terrorist attacks would be tried on US soil, including Khalid Sheikh Mohammed and Ramzi Bin Al Shibh [JURIST news archives].

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Legally binding agreement unlikely to emerge from climate summit: Obama
Ann Riley on November 16, 2009 9:39 AM ET

[JURIST] US President Barack Obama acknowledged [press release] Sunday that it is unlikely that the December UN Climate Change Conference (COP15) [official website] in Copenhagen, Denmark, will produce a legally binding agreement addressing global climate change. Deputy National Security Adviser for International Economic Affairs Michael Froman said that it is impractical to expect that a final, legally binding agreement could be negotiated in time for the summit in three weeks. At meetings for the Asia-Pacific Economic Cooperation (APEC) [official website] in Singapore, Obama and other leaders agreed with Danish Prime Minister and incoming COP15 host Lars Lokke Rasmussen [official profile, in Danish] that the summit should produce a five- to eight-page document with "precise language of a comprehensive political agreement" and negotiations should continue into 2010 to develop a binding legal treaty. Obama recognized [text] that the Copenhagen summit will serve as an important step in developing an international global warming treaty and that the US remains open to an agreement. Also Monday, 44 environmental ministers gathered [AFP report] in Copenhagen for a two-day closed meeting to plan for the conference and develop strategies to rescue the political climate deal.

The 192-nation conference in Copenhagen was originally designed to produce a new global climate change treaty, replacing the controversial 1997 Kyoto Protocol [JURIST news archive] expiring in 2012, which the US did not sign. However, many world leaders have conceded that reaching an agreement at the conference is unlikely. Last month, Director of the UN secretary-general’s Climate Change Support Team Janos Pasztor additionally conceded [JURIST report] that the summit might not produce a treaty, but encouraged participating representatives to work toward defining the content of an eventual, legally-binding agreement [press release]. Thus far, Western countries have been unable to convince developing nations to commit to reductions in emissions when the Western world has not done so either. In March, the US Special Envoy on Climate Change announced [JURIST report] at a UN Convention on climate change that the US is committed [video] to the creation of an international treaty designed to combat global warming, but that such efforts would only succeed if they were economically feasible. Negotiations on a new treaty began [JURIST report] last year.

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US defense department head bars public disclosure of detainee abuse photos
Safiya Boucaud on November 16, 2009 8:28 AM ET

[JURIST] US Defense Secretary Robert Gates [official profile] on Friday invoked his authority to bar public disclosure of about 40 photos depicting the abuse of Afghan and Iraqi detainees by US soldiers. The move was followed by a notification and request by the Obama administration asking the US Supreme Court [official website] to set aside [petition, PDF] the decision of the US Court of Appeals for the Second Circuit [official website], which affirmed [JURIST report] the district court's ruling that the government must release the photos. Gates's ability to invoke this authority is pursuant to section 565 of the Department of Homeland Security Appropriations Act of 2010 [HR 2892 materials], signed into law [JURIST report] by President Barack Obama in late October. According to the brief:

The Act and the Secretary's certification require that the photographs currently at issue in this case be exempt from mandatory disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. 552. The judgment of the court of appeals therefore should be vacated and the case remanded to the court of appeals for further consideration in light of the new legislation and the Secretary's certification.

The American Civil Liberties Union (ACLU) [advocacy website] expressed disappointment [press release] at Gates's decision.

The detainee abuse photos [JURIST news archive] are now part of the records of the Department of Defense and the Department of the Army. In August, the Obama administration petitioned the US Supreme Court [JURIST report] to overturn the district court's order, alleging that this could lead to further violence in Iraq and Afghanistan that would endanger US civil and military personnel. In spite of its previous ruling, the Second Circuit ruled in June that the US government could continue to withhold photos [JURIST report] of alleged detainee abuse while it awaits a response from the Supreme Court. The original court mandate to release the photos came from a Freedom of Information Act (FOIA) [text] challenge successfully brought by the ACLU in 2005.

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

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