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Legal news from Tuesday, November 2, 2010




Google sues US government for favoring Microsoft for e-mail contract
Sarah Paulsworth on November 2, 2010 3:10 PM ET

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[JURIST] Google [corporate website; JURIST news archive] has filed a lawsuit against the US Department of Interior (DOI) [official website] alleging that the DOI arbitrarily decided only to allow Microsoft [corporate website] to compete for a contract to overhaul its e-mail system. According to the lawsuit, filed Friday in the US Court of Federal Claims [official website], the DOI decided in August to limit bidders [FT report] to only those using programs based on Microsoft's Business Productivity Online Suite. Google was allegedly excluded because of security concerns [BBC report], but the company says it has created a special application, Google Government Apps, that addresses all of these concerns. Furthermore, the company argues its application would save US taxpayers millions of dollars.

Over the past year, Google's privacy practices and policies have the focus of a number of investigations and complaints. Last week, the US Federal Trade Commission (FTC) [official website] announced that it had ended an inquiry [JURIST report] into Google's internal policies and procedures that led to the company inadvertently collecting data on unsecured wireless networks while photographing streetscapes for its Street View maps program. In October, Canadian Privacy Commissioner Jennifer Stoddart announced that Google was in violation [JURIST report] of the country's Personal Information Protection and Electronic Documents Act [text, PDF] (PIPEDA). In August, the South Korean National Police Agency (SKNPA) [official website, in Korean] raided the Google South Korean headquarters [JURIST report] in connection with accusations that the company had been illegally acquiring user data. In July, the Australian Privacy Commissioner announced [JURIST report] that its investigation revealed Google's actions violated the Australia Privacy Act [government backgrounder].




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Supreme Court hears arguments on violent video game law
Jaclyn Belczyk on November 2, 2010 3:02 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in Schwarzenegger v. Entertainment Merchants Association [oral arguments transcript, PDF; JURIST report] on whether the First Amendment [text] permits any limits on offensive content in violent video games sold to minors, and whether a state regulation for displaying offensive, harmful images to children is invalid if it fails to satisfy the exacting "strict scrutiny" standard of review. California Civil Code sections 1746-1746.5 [text] prohibit the sale of violent video games to minors under 18 where a reasonable person would find that the violent content appeals to a deviant or morbid interest of minors, is patently offensive to prevailing community standards as to what is suitable for minors and causes the game as a whole to lack serious literary, artistic, political or scientific value for minors. The US Court of Appeals for the Ninth Circuit affirmed [opinion, PDF; JURIST report] the district court's judgment permanently enjoining enforcement of the prohibition. Counsel for California urged the court "to adopt a rule of law that permits States to restrict minors' ability to purchase deviant, violent video games that the legislature has determined can be harmful to [their] development," drawing distinctions between video games and other media such as books, movies or music. Counsel for the respondents argued against creating any kind of First Amendment exception for violent video games. Chief Justice John Roberts and Justices Breyer and Alito appeared to support California's arguments while Justices Scalia, Ginsburg and Sotomayor repeatedly raised free speech concerns.

The court also heard arguments in Sossamon v. Texas [oral arguments transcript, PDF; JURIST report] on whether an individual may sue a state or state official in his official capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act [42 USC § 2000cc text], which grants prisoners permission to obtain injunctive and declaratory relief against the government when it imposes a substantial burden on the religious exercise of a inmate. The US Court of Appeals for the Fifth Circuit reversed [opinion, PDF] a grant of summary judgment in favor of Texas and ordered further proceedings to determine if Texas had exceeded its bounds under the act by prohibiting Harvey Sossamon to use the prison chapel for Christian worship, even though it was available for other uses. Counsel for Sossamon argued that damages are an appropriate remedy. Counsel for the US government argued as amicus curiae on behalf of the petitioner. Counsel for Texas argued that the ambiguous phrase "appropriate relief" does not permit damages.

In Staub v. Proctor Hospital [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether an employer may be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision. Vincent Staub sued his former employer under the Uniformed Services Employment and Reemployment Rights Act (USERRA) [text] for wrongful termination. The US Court of Appeals for the Seventh Circuit ruled [opinion, PDF] that the unlawful intent of the officials who allegedly brought about Staub's dismissal could not be attributed to the employer. Counsel for Staub argued:

The dismissal of an employee is often the result of the interrelated actions and decisions of several officials. Whether an employer is legally responsible for any particular official and his or her actions and decisions turns on agency law. Congress legislates against a background of agency law and is presumed to have intended agency principles to govern that kind of question. Agency law, not the Eleventh Circuit's "cat's paw" doctrine, is the controlling standard here.
Counsel for the US government argued on behalf of Staub as amicus curiae. Counsel for the respondent argued that the Seventh Circuit applied the correct standard.




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France court gives Rwanda ex-president's widow extension to defend against extradition
Julia Zebley on November 2, 2010 2:40 PM ET

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[JURIST] The Administrative Tribunal of Versailles [official website, in French] on Tuesday cancelled an order refusing a residency permit to Agathe Habyarimana, widow of assasinated Rwandan president Juvenal Habyarimana [Britannica profile], ordering that her application be reconsidered. The reconsideration gives Habyarimana more time to defend against extradition attempts [AFP report] by the Rwandan government. The court denied her residency permit [RFI report] in July, considering her a threat to public order. Habyarimana, who has lived in France for 15 years, was arrested [JURIST report] in March by French authorities on suspicions of complicity in genocide and was later released on bail. French police complied with an international arrest warrant issued by the Rwandan government accusing Habyarimana of helping to plan the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive] between Hutus and Tutsis in which more than 800,000 people, primarily Tutsis, were killed in the span of 100 days. After her husband's assassination, which led to an escalation of violence that sparked the genocide, Habyarimana was transported from Rwanda by the French military and has since been living outside Paris, although the French government has twice refused [2007 text, PDF, in French; 2009 text, PDF, in French] to grant her asylum as a refugee. Her arrest occurred only a few days after French President Nicolas Sarkozy visited Rwanda and announced that his government would cooperate [JURIST report] in finding those accused of genocide.

In January, the Rwandan government released a report concluding that the assassination of then-president Juvenal Habyarimana was the work of Hutu extremists [JURIST report]. An independent committee of experts, established [JURIST report] in April 2007 by Rwanda's Tutsi President Paul Kagame [official website; BBC profile], found that Hutu extremists, including members of the president's own family, were opposed to the 1993 Arusha Accords, a power-sharing agreement supported by Habyarimana, designed to end his 20-year monopoly on power. The report asserts that Hutus used the assassination as a pretext for the 1994 genocide.




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Khodorkovsky gives closing statement in money laundering trial
Sarah Paulsworth on November 2, 2010 2:30 PM ET

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[JURIST] Imprisoned Russian oil tycoon Mikhail Khodorkovsky [defense website; JURIST news archive] linked the fate of Russia with the outcome of his trial in his closing statements [text, PDF] on Tuesday in his trial for money laundering and embezzlement [JURIST report]. Prosecutors allege that Khodorkovsky and a group of investors embezzled more than $100 million from his former company Yukos [JURIST news archive]. Addressing the court, Khodorkovsky said:
Your Honour! There is much more than just the fates of two people in your hands. Right here and right now, the fate of every citizen of our country is being decided. Those who, on the streets of Moscow and Chita, Peter and Tomsk, and other cities and settlements, are not counting on becoming victims of police lawlessness, who have set up a business, built a house, achieved success and want to pass it on to their children, not to raiders in uniform, and finally, - those who want to honorably carry out their duty for a fair wage, not expecting that they can be fired at any moment by corrupt bosses under just about any pretext. ... Everybody understands that your verdict in this case - whatever it will be - is going to become part of the history of Russia.
A verdict on this case is anticipated on December 15 [RFERL report]. If convicted, Khodorkovsky could be imprisoned until 2017. Also Tuesday, Khodorkovsky's defense lawyers hinted that prosecutors are contemplating filing a third set of criminal charges [RIA Novosti report] against their client and his business partner Platon Lebedev [JURIST news archive].

In May, former Russian prime minister Mikhail Kasyanov [BBC profile] testified that former president Vladimir Putin [official website; JURIST news archive] ordered the arrest [JURIST report] of Khodorkovsky for political reasons. Also in May, Khodorkovsky ended a two-day hunger strike [JURIST report] after a spokesperson for Medvedev indicated that Medvedev was familiar with a complaint Khodorkovsky made regarding the three-month extension of his detention. Khodorkovsky is currently serving an eight-year prison sentence since 2005 for fraud and tax evasion [JURIST report], charges he continues to deny.




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UN rights expert: racism, xenophobia increasing
John Paul Putney on November 2, 2010 2:25 PM ET

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[JURIST] UN Special Rapporteur on racism and human rights lawyer Githu Muigai said Monday that racism is increasing [press release] as a result of xenophobic teachings and violence. Delivering two reports to the UN General Assembly, Maugai said that states must enforce internationally recognized standards and prevent discrimination. Muigai identified immigrants in particular as bearing the brunt of xenophobic intolerance and warned against characterizing migration as a problem and threat to social cohesion [Reuters report]. Queried about Arizona's recent controversial immigration law, Muigai indicated he felt it equipped the police with too much power to compromise fundamental human rights [WP report]. He called on states to condemn extremist organizations promoting or inciting racial discrimination and acknowledged that passing anti-discrimination legislation alone was not enough. Muigai is set to travel to Bolivia in the coming weeks.

On Monday, a US appeals court heard oral arguments [JURIST report] on Arizona's controversial immigration law [SB 1070 materials] after issuing an injunction [JURIST report] in July preventing its enforcement pending appeal. In October, Bolivian President Evo Morales [official profile, in Spanish] signed a controversial bill into law that permits the government to punish media outlets for publishing racist content [JURIST report]. The law was widely protested [JURIST report] by Bolivian media outlets. In September, the European Commission [official website] warned France that the country would face disciplinary proceedings and potential legal action if it did not follow EU regulations in its relations with Roma [JURIST news archive] migrants after French President Nicolas Sarkozy [official website, in French] ordered measures against illegal Roma communities [JURIST report] in July and announced new legislation aimed at making their deportation easier. Also in July, the European Commission Against Racism and Intolerance (ECRI) [official website] reported that racist violence and rhetoric has risen [report, PDF] in Europe during 2009, following the recent economic crisis. According to the report, the economic crisis has led to a rise in the unemployment rate and a decrease in social services in many countries, with immigrants being blamed for the resulting hardship [JURIST report].




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Yemen charges US-born cleric with terrorism-related activities
Jay Carmella on November 2, 2010 1:01 PM ET

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[JURIST] Yemeni prosecutors on Tuesday charged US citizen and radical Muslim cleric Anwar al-Awlaqi [BBC profile; JURIST news archive], with incitement to kill foreigners. Awlaqi, a suspected member of al Qaeda [GlobalSecurity backgrounder] who is believed to be hiding in Yemen, was charged [CNN report] in absentia. US officials have labeled Awlaqi as a terrorist and have placed him on a list to be captured or killed. Awlaqi is believed to be linked to Major Nidal Hasan, the Fort Hood shooting suspect, as well as the Christmas Day airplane bombing attempt [JURIST news archive]. The Yemeni government has sent forces on a counter-terrorism operation into the Province of Shabwa, where it is believed that Awlaqi is hiding. The trial will continue on Saturday.

The Yemeni government desires to be considered an ally of the US in the fight against terrorism. However, some groups in the US fear the consequences in the case of Awlaqi. A lawsuit [JURIST report] questioning the legality of targeted killings of terrorist suspects by the US was filed in August by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) [advocacy websites]. In September, the Obama administration asked the court to dismiss [JURIST report] the lawsuit arguing that the matter involves "non-justiciable political questions" to be decided by the executive branch and that litigation could divulge state secrets. In early August, the ACLU and the CCR obtained a specially designated global terrorist (SDGT) license that enables them to represent Awlaqi, but announced they are still pursuing a legal challenge [JURIST reports] to the licensing scheme.




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Uruguay high court annuls dictatorship amnesty
Maureen Cosgrove on November 2, 2010 12:24 PM ET

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[JURIST] The Uruguayan Supreme Court [official website, in Spanish] ruled Monday that amnesty granted for crimes committed by the country's 12-year dictatorship is unconstitutional. The Expiry Law [text, in Spanish], adopted in 1986, granted amnesty to military officials accused of human rights violations during the country's 1973-1985 dictatorship [Country Studies backgrounder]. The court's ruling will allow investigators to proceed [El Pais report] with 20 murder cases against Uruguay's former dictator, Juan Maria Bordaberry [JURIST news archive]. Voters upheld the amnesty law [AP report] in national referendums twice. Currently, the Broad Front [party website website, in Spanish], a coalition of government leftists, is seeking a piece of legislation that supersedes the Expiry Law. The initiative was partially approved in the Chamber of Deputies, but has not yet been approved by the Senate.

In February, Bordaberry was sentenced to 30 years in prison [JURIST report] for his role in the country's 1973 military coup. Bordaberry was arrested in 2006 on charges of murder and was later charged with violating Uruguay's constitution [materials, in Spanish]. The Uruguayan Supreme Court also addressed the Expiry Law in an October 2009 ruling, finding it unconstitutional [JURIST report] as it applied to the case of Nibia Sabalsagaray, who was allegedly murdered by the military in 1974. The court concluded that the law violated separation of powers and constitutional sovereignty [El Pais report, in Spanish]. In 2005, Argentina's Supreme Court struck down similar amnesty laws [JURIST report] adopted in the 1980s to protect potential defendants, prompting the government to reopen hundreds of human rights cases.




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Israel forces unlawfully abusing Palestinian detainees: rights groups
Sarah Posner on November 2, 2010 12:19 PM ET

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[JURIST] Palestinian detainees have been subjected to "cruel, inhuman, and degrading treatment," and at times torture by Israel's Shin Bet Security Agency in violation of international and domestic law, according to a report [text, PDF, press release] released Tuesday by human rights groups B'Tselem and HaMoked [advocacy websites]. The details of the report, "Kept in the Dark," are based on the testimony of 121 Palestinians held in the detention facility in 2009. The report, which details the treatment of Palestinian detainees held by Shin Bet in the Petach-Tikva interrogation facility, says that in 30 percent of the cases, physical violence is used towards the detainees, either during the initial arrest or on the way to the detention facility. This alleged torture and ill-treatment violates several international legal instruments such as the Geneva Conventions, International Covenant on Civil and Political Rights, the Convention Against Torture and the Rome Statute. The practices also violate a 1999 Israeli Supreme Court decision, which held that Shin Bet interrogations must be held in a "reasonable and fair manner, without violating the detainee's dignity." The report explained:
The acts described in this report as the routine practice in interrogations at the Shin Bet facility in Petach-Tikva breach the absolute prohibition on cruel, inhuman, and degrading treatment. There are also cases in the report that caused severe suffering that amounts to torture. Alongside the general prohibition on torture and on cruel, inhuman, and degrading treatment, Israel's handling and treatment of the detainees as revealed in this report breaches various codes regarding detention conditions.
The Israeli Justice Ministry has denied the allegations [JP report], claiming that Israel's military procedures respect the law.

Israel has faced repeated criticism by human rights organizations for its treatment of Palestinian detainees. In June 2009, the Public Committee Against Torture in Israel (PCATI) [advocacy website] alleged that shackling techniques used by Israel Defense Forces (IDF) and the Shin Bet against Palestinian detainees were unjustifiably harsh and constituted torture [JURIST report]. In June 2008, PCATI alleged that Israeli soldiers regularly beat [JURIST report] and abuse Palestinian detainees even after they have been arrested and no longer pose a threat. PCATI said military violence against detainees is "reinforced by a weak legal system which conducts only a small number of investigations and legal proceedings that concern cases of abuse by soldiers." The Israeli military has denied treating prisoners in any way prohibited by national or international law.




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Iran court jails prominent human rights lawyer
Eryn Correa on November 2, 2010 11:43 AM ET

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[JURIST] Branch 15 of the Revolutionary Court of Iran [GlobeLex backgrounder; JURIST news archive] on Saturday sentenced Iranian human rights lawyer Mohammed Seifzadeh to nine years in prison and a 10-year ban from practicing law. Seifzadeh was charged [RFE/RL report] with acting against national security in establishing the Defender of Human Rights Center (DHRC) [advocacy website], an organization that issues regular reports about human rights violations in Iran. DHRC's co-founders, Nobel Prize winner Shirin Ebadi, Abdolfatah Soltani [JURIST news archives] and Mohammed Ali Dadkhah are being similarly charged. In an interview [text, in Arabic] with Radio Free Europe, Seifzadeh says that he rejects the charges and will appeal his case.

Seifzadeh has worked on several high-profile cases, including defending [Iran Human Rights report] Massoumeh Yavari, a woman in Iran charged with enmity against God for carrying a pocket-knife in her purse. He also represented Iranian-Canadian photojournalist Zahra Kazemi's mother in a murder investigation [JURIST report] concerning Zahra's interrogation in Tehran. Seifzadeh's conviction is one in a series of measures taken against human rights lawyers, journalists and activists since the controversial 2009 presidential elections [JURIST news archive]. In September, Shiva Nazar Ahari, a journalist arrested following the election, was sentenced [JURIST report] to six years in prison for warring against God, conspiracy to commit a crime and propaganda against the government. Also in September, human rights lawyer Nasrin Sotoudeh was detained [JURIST report] for allegedly spreading propaganda and colluding against national security. In April, Mohammed Nourizad, a journalist and filmmaker was sentenced [JURIST report] to three-and-a-half years in prison and 50 lashes for his "propaganda" activities. Reform leader Hossein Marashi was also sentenced [JURIST report] for similar activities.




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Ninth Circuit indefinitely extends stay on 'Don't Ask Don't Tell'
Carrie Schimizzi on November 2, 2010 9:21 AM ET

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[JURIST] A three-judge panel for the US Court of Appeals for the Ninth Circuit [official website] on Monday ordered an indefinite extension [order, PDF] of its temporary stay [JURIST report] preventing the suspension of the US military's "Don't Ask, Don't Tell" (DADT) [10 USC § 654; JURIST news archive] policy. The new order will extend the government's emergency motion [text, PDF] to stay the injunction [JURIST report] issued by the US District Court of the Central District of California [official website] that required the US military to end enforcement of DADT. The judges agreed with the government that the district court's injunction would "seriously disrupt ongoing and determined efforts by the administration to devise an orderly change of policy" and would result in "immediate harm" and "irreparable injury" to the military. The Log Cabin Republicans (LCR) [advocacy website], the conservative gay activist organization that brought the suit, expressed its "disappointment" [press release] in the Ninth Circuit's decision:
Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers' constitutional rights. In the meantime, we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy. The president claims to want to see "Don't Ask, Don't Tell" ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns.
The order will remain in effect until the court resolves the suit [LCR backgrounder].

Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy. In September, a federal judge for the US District for the Western District of Washington [official website] ordered [JURIST report] that a US Air Force officer be reinstated after being previous discharged under DADT. Also in September, the Senate [official website] rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed the policy. In May, the House of Representatives and the Senate Armed Services Committee (SASC) [official websites] voted to repeal the policy after President Barack Obama and Defense Secretary Robert Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness.




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Canada government to accept Khadr after one year
Zach Zagger on November 2, 2010 8:06 AM ET

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[JURIST] Canadian Minister of Foreign Affairs Lawrence Cannon [official profile] told the House of Commons [official website] Monday that the Harper administration has agreed to accept Guantanamo Bay [JURIST news archive] detainee and convicted terrorist Omar Khadr [DOD materials; JURIST news archive] after he serves the first year of his sentence in Guantanamo. The announcement comes the day after a panel of seven senior US military officers on Sunday sentenced Khadr to 40 years in prison [JURIST report]. He will only serve eight years as part of his plea agreement last week where he pleaded guilty [JURIST reports] to all five charges against him, including murder, attempted murder, conspiracy, providing material support for terrorism and espionage. Cannon told the House of Commons that the Toronto-born Khadr will return to Canada but continued to insist that Canada was not involved in the plea negotiations [Toronto Star report]. However, a released US State Department [official website] memorandum [text] shows that the US suggested that Khadr be transferred to Canada to finish his sentence as part of the plea agreement. Canadians are split on whether Khadr should serve part of his sentence in Canada. A poll estimated that 49 percent [Global Montreal report] of the population was not in favor of the move.

The Harper administration previously declined to seek the repatriation of Khadr despite a ruling [judgment text, JURIST report] by the Supreme Court of Canada [official website] that the interrogation of Khadr by Canadian officials while in detention violated section 7 of the Canadian Charter of Rights and Freedoms [text]. Canadian officials questioned Khadr, who was captured at age 15, despite knowing that he was being indefinitely detained and had been subjected to sleep deprivation by US authorities. Still, the court held that forcing the government to press for Khadr's return was not an appropriate remedy, as such an order would overreach the court's authority. At trial, Khadr had argued that his confession was a byproduct of torture the judge ruled that Khadr's confession was admissible at trial [JURIST reports]. Khadr was arrested and charged at the age of 15 after he was captured following a firefight in Afghanistan in 2002 in which he threw a hand grenade that killed one US soldier and wounded another.




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Ninth Circuit hears arguments on Arizona immigration law
Zach Zagger on November 2, 2010 7:04 AM ET

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[JURIST] A three-judge panel of US Court of Appeals for the Ninth Circuit [official website] heard oral arguments Monday on Arizona's controversial immigration law [SB 1070 materials, JURIST news archive]. The US Department of Justice (DOJ) [official website] has argued that parts of the law are unconstitutional while others are preempted by federal law. John Bouma, representing Arizona and Arizona Governor Jan Brewer (R) [official website], argued that the state is on the front line of human and drug trafficking from Mexico, and the law is meant to assist with the enforcement and implementation of federal immigration law when the federal government is either "unable or unwilling to solve the problem." Representing the federal government, Edwin Kneedler argued that allowing states to create immigration laws could create a patchwork system and potentially harm foreign relations.

Brewer attended the proceedings [NYT report] to support Arizona's law on the day before her bid seeking re-election. Polls show that she is comfortably ahead. Brewer defended [press release] Arizona's position on her website:

With a federal government that cannot or will not do its job, Arizona determined that Arizona law enforcement officers would assist in the enforcement of federal immigration laws to the full extent permitted by federal law. The District Court applied the wrong legal standard of review and issued a preliminary injunction that preserves the status quo - a status quo that is unacceptable to the people lawfully present in Arizona, many whose lives are affected on a daily basis.
Regardless of the Ninth Circuit's ruling, the case is expected to be appealed to the Supreme Court.

Last month, US Department of Homeland Security (DHS) [official website] Secretary Janet Napolitano [official profile] and Immigration and Customs Enforcement (ICE) [official website] Director John Morton [official profile] announced that the US government has deported a record number of illegal immigrants [JURIST report] during 2010. In September, a judge for the US District Court for the District of Arizona granted a motion to dismiss [order, PDF; JURIST report] a police officer's suit [JURIST report] challenging the law. Brewer and Arizona have fiercely defended the law despite its controversial nature, appealing to the Ninth Circuit a July ruling of the US District Court for the District of Arizona [official website] enjoining [JURIST report] its enforcement. In July, soon after the injunction was issued, the Ninth Circuit denied Arizona's request for expedited appeal [JURIST reports]. The preliminary injunction came at the request of the DOJ, which originally filed suit challenging the constitutionality of the law [JURIST report] in July.




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