Author: JURIST – Paper Chase

[JURIST] The US Supreme Court heard oral arguments Wednesday in Doe #1 v. Reed on whether the First Amendment allows a state to compel the release of identity information about petition signers. The case arose over an order to publish the names of those who signed a Washington state petition to overturn a state law giving same-sex partners the same rights as married partners. The US Court of Appeals for the Ninth Circuit ruled that the names should be released, but the Supreme Court issued a temporary stay in October. Counsel for the petitioners argued that, “o person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations.” Counsel for the state of Washington argued that the names can be made public. The court appeared skeptical of petitioners’ arguments, with Justice Antonin Scalia saying “emocracy requires a certain amount of civic courage.”

[JURIST] The Moscow City Court ruled Tuesday that the Slavic Union (SS) violates Russia’s extremism laws, banning the organization. The SS, whose initials are the same as the Nazi paramilitary, was one of Russia’s largest neo-Nazi organizations. City prosecutors initiated the action, accusing the group of promoting nationalistic supremacy similar to the ideology of Nazi Germany. SS leader Dmitry Dyomushkin says he plans to appeal the ban. He warned that the ban will anger radical ultranationalists into retaliation.
Earlier this month, a Moscow City Court judge known for presiding over cases involving neo-Nazi groups was killed while leaving his apartment. Russia is currently struggling to limit hate crimes, which decreased in 2009 according to the SOVA Center. Last month, the Russian Prosecutor General’s Office banned Adolf Hitler’s book Mein Kampf, finding it in violation of laws against extremism. In December, the Russian Supreme Court upheld a lower court decision to shut down the Taganrog Jehovah’s Witness congregation and ban the distribution of 34 Jehovah’s Witness publications, finding both the Jehovah’s Witness congregation and the publications to be extremist. In 2007, the Russian parliament approved legislative amendments to change the prevailing definition of extremist crime in Russian law to include activities taken for “political or ideological hatred.”

[JURIST] The Chinese government announced Tuesday that it has lifted a ban on entry into that country for individuals with HIV/AIDS and other communicable diseases. The ban was originally implemented under the Frontier Health and Quarantine Law and the Law on Control of the Entry and Exit of Aliens, both passed in 1987. The ban had temporarily been lifted for international events, such as the 2008 Summer Olympic Games, but the inconvenience that resulted, as well as the increased knowledge of how HIV/AIDS is spread, were reasons cited by the government as factors for changing the law. China’s action drew praise from the Joint UN Programme on HIV/AIDS, which urged the 51 countries and areas that still bar entry to individuals with HIV/AIDS to follow China’s lead in overturning their bans. The lifting of the ban does not enjoy widespread support from Chinese civilians, however, with 84 percent supporting keeping the ban in place.
Until recently, the US was one of the nations with an entry ban for individuals with HIV/AIDS. That ban was lifted in January when the Centers for Disease Control removed HIV/AIDS from its list of communicable diseases of public significance. It was first reported in late November that China was considering lifting the entry ban, ahead of the Shanghai Expo scheduled for May of this year. China had previously relaxed its restrictions on entry in 2007, ahead of the 2008 Olympic Games.

[JURIST] The Japanese Diet on Tuesday approved a bill abolishing the statute of limitations for murder. The new law abolishes the statute of limitations for serious capital crimes, which was previously 25 years, and extends the limitation period for sexual assault and other crimes resulting in death from 15 to 30 years. The law also doubles prison terms for other crimes resulting in death. Japanese Justice Minister Keiko Chiba utilized the new law Tuesday to keep open an unsolved case from 1995 that was set to expire at midnight. While criminal procedure laws are normally not enacted for at least a week while they are reviewed by the emperor prior to publication, this law was enforced immediately to keep unsolved cases open.
Japan has recently taken steps to reform its criminal procedure system. Last year, Japan held its first jury trial since the end of World War II, with the Tokyo District Court convicting Katsuyoshi Fujii of murder. In 2004, the National Diet enacted the Lay Assessor Act, which impanels professional and lay judges to decide and sentence capital cases and cases involving an intentional death. Panels can be made up of three professional judges and six lay judges or one professional judge and four lay judges. For their verdicts to stand, lay judges need the concurrence of at least one professional judge.

[JURIST] The US Department of Defense (DOD) on Tuesday released a manual for military commission procedures under the Military Commissions Act of 2009. The manual establishes the rules of evidence and procedure for the commissions, allowing for the admission of certain hearsay evidence and defining “material support” for terrorism. The manual’s release came one day before a hearing in the case of Canadian Guantanamo Bay detainee Omar Khadr on whether his alleged confessions may be used as evidence. The hearing was postponed briefly Wednesday morning to allow Khadr’s lawyers time to review the new manual and was set to resume Wednesday afternoon.
Khadr’s military commission trial, set to begin in July, will be the first under the Obama administration, which suspended military commissions shortly after the January 2009 inauguration. In February, Khadr’s lawyers filed an emergency motion in the Federal Court of Canada challenging the decision of the Canadian government not to seek his repatriation from the US. The Supreme Court of Canada ruled in January that the government was not obligated to seek Khadr’s return to Canada despite having violated his rights under section 7 of the Canadian Charter of Rights and Freedoms. Khadr has allegedly admitted to throwing a hand grenade that killed a US soldier in Afghanistan, and was charged in April 2007 with murder, attempted murder, conspiracy, providing material support for terrorism, and spying.

[JURIST] Iraqi detainees were repeatedly tortured in a secret prison in Baghdad, Human Rights Watch (HRW) said Tuesday. HRW says that detainees held at the Muthanna facility, run by Iraqi authorities, were hung upside-down, deprived of air, kicked, whipped, beaten, given electric shocks, and sodomized during torture sessions that detainees faced every three to four days. HRW interviewed 42 men who were among 300 transferred out after the Iraq Ministry of Human Rights gained access to the facility, which falls under the authority of the military office of Iraqi Prime Minister Nouri al-Maliki. The fact that many Sunnis were detained in the facility may reveal growing sectarian tensions within Iraq between the Maliki’s Shiite government and Sunni Muslims. Maliki denied the reports of a secret prison, claiming the facility was publicly known and that the reports of abuse are exaggerated.
Earlier this month, it was revealed in a Los Angeles Times report that hundreds of Sunni men were detained without warrant and subjected to torture in the Muthanna facility. More than 400 men were initially detained in October during sweeps of Nineveh province, an area in which al Qaeda in Iraq (AQI) was active, and transferred to a Baghdad prison due to concerns over corruption in the provincial capitol of Mosul. Maliki created a special committee in June to investigate alleged abuse and torture in the country’s prisons. Comprised of eight members, the committee includes representatives from human rights and judicial government agencies and security ministries. The decision to create the panel came shortly after charges were brought against 43 Iraqi police officers for human rights abuses, warrantless arrests, and bribery allegations. The violations were discovered by an investigatory committee formed by Iraqi Interior Minister Jawad al-Bolani.

[JURIST] The US Supreme Court on Wednesday ruled in Salazar v. Buono that the lower courts were wrong to ban government from transferring public land containing a religious symbol to a private entity. The court also held that an individual has Article III standing to bring a suit under the Establishment Clause of the First Amendment challenging the display of a religious symbol on government land. The US Court of Appeals for the Ninth Circuit ruled that the transfer of the public land to a private entity is not a permissible accommodation. Authoring the plurality opinion for a deeply divided court, Justice Anthony Kennedy reversed the decision below:
Respect for a coordinate branch of Government forbids striking down an Act of Congress except upon a clear showing of unconstitutionality. The same respect requires that a congressional command be given effect unless no legal alternative exists. Even if, contrary to the congressional judgment, the land transfer were thought an insufficient accommodation in light of the earlier finding of religious endorsement, it was incumbent upon the District Court to consider less drastic relief than complete invalidation of the land-transfer statute.Justice Samuel Alito filed a concurring opinion. He would not have remanded the case to the district court. Justice Antonin Scalia also filed a concurring opinion, joined by Justice Clarence Thomas. Scalia believes that the plaintiff lacks standing. Justice John Paul Stevens filed a dissenting opinion, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justice Stephen Breyer filed a separate dissent.The dispute concerns a Latin cross on a rock outcropping in the Mojave National Preserve. The display of the cross on public property had already been found in violation of the Establishment Clause, so the government sought to transfer the portion of land on which the cross was located to a private entity.

[JURIST] The UN Security Council on Tuesday unanimously approved Resolution 1918, calling on member states to criminalize piracy under their domestic laws and urging Secretary-General Ban Ki-moon to consider an international tribunal for prosecuting piracy. In the resolution, the Security Council noted its previous resolutions regarding piracy, particularly piracy off the coast of Somalia, as well as the continuing security issues posed by piracy. The ineffectual nature of past resolutions, combined with the lack of action by the Somali government and the difficulties faced by Kenya, one of the few African nations to attempt to prosecute piracy, may have led to the inclusion of the request that the secretary-general investigate options for UN prosecution of piracy. Russia, a permanent member of the Security Council, had previously proposed that the UN establish a special court for Somali pirates. The resolution asks that the Secretary General’s report on prosecutorial options be completed within three months.
The Security Council resolution comes the same week the UN announced that a trust fund established to combat piracy will be funding five projects aimed at piracy committed in the waters around Somalia. The same day, unsealed indicments revealed that the US had filed charges against 11 Somali pirates in the US District Court for the Eastern District of Virginia. Earlier this month, Kenya announced that it would no longer accept referred piracy cases, which have overburdened its judicial system, an announcement that may have spurred the Security Council to act. In January, the International Chamber of Commerce released a report indicating that maritime piracy had reached its highest levels since 2003.

[JURIST] Canadian House of Commons Speaker Peter Milliken ruled Tuesday that members of Parliament have the right to seek uncensored Afghan detainee documents from the government of Prime Minister Stephen Harper. The historic ruling is a significant victory for opposition parties over Harper’s minority Conservative government. In his ruling, Milliken said:
The Chair must conclude that it is within the powers of the House of Commons to ask for the documents sought in the December 10 order it adopted. Now, it seems to me, that the issue before us is this: is it possible to put into place a mechanism by which these documents could be made available to the House without compromising the security and confidentiality of the information they contain? In other words, is it possible for the two sides, working together in the best interest of the Canadians they serve, to devise a means where both their concerns are met? Surely that is not too much to hope for.Milliken gave both sides two weeks to reach a compromise. If no agreement can be reached, members of Harper’s cabinet, including the ministers of defense, foreign affairs, and justice, could be held in contempt of Parliament. Although the Harper government has indicated its general willingness to comply with the Speaker’s ruling, it might yet pass the general issue of executive versus legislative authority on to the Supreme Court of Canada as a constitutional reference question for its formal determination. The release of the detainee documents has been highly controversial. Last month, Canadian Justice Minister Rob Nicholson announced that former Supreme Court justice Frank Iacobucci would review documents detailing Canadian forces’ handing of Afghan detainees and the terms of their transfer to Afghan authorities before the documents would be released to Parliament. Nicholson indicated that Iacobucci would report back to Nicholson, who would determine the conditions of disclosure. In December, Parliament passed an order to compel Harper to release the unredacted documents after the Canadian government released more than 40 redacted e-mails sent by Canadian diplomat Richard Colvin to then-foreign minister Peter MacKay raising concerns about the torture of transferred detainees. The release of the e-mails came after Colvin testified before a Commons committee in November that all enemy combatants captured in 2006 and 2007 by Canadian forces were likely tortured upon their transfer to Afghan authorities.

[JURIST] A French judge ruled Tuesday that former Panamanian military leader Manuel Noriega must remain in custody until his trial on money laundering charges. Noriega arrived in France Tuesday morning after being extradited from the US, where he had served a 17-year sentence on drug charges. Noriega appeared Tuesday before French prosecutors to hear the charges against him, which stem from allegedly laundering $3 million in drug profits by purchasing property in Paris. He then appeared before a judge to request that he be sent back to Panama immediately. His lawyers argued that he is immune from prosecution as a former head of state and that the statute of limitations has expired. The judge rejected those arguments, remanding Noriega into custody.
Noriega fought extradition from the US since 2007. Last month, the US Supreme Court declined to reconsider Noriega’s petition to stop the extradition process. His lawyers filed the petition in February after the Supreme Court denied certiorari on the case in January. Noriega, who has been declared a prisoner of war, sought to enforce a provision of the Geneva Convention that requires repatriation at the end of confinement. Noriega and his wife were sentenced in absentia to 10 years in jail by a French court in 1999, but France agreed to hold a new trial if he was extradited.

[JURIST] The US Supreme Court heard oral arguments Tuesday in Monsanto Company v. Geertson Seed Farms on what conditions must be met to obtain a nationwide injunction prohibiting the planting of genetically engineered crops. The case arose over an injunction against the planting of Monsanto’s “Roundup Ready alfalfa,” pending an environmental impact statement. The US Court of Appeals for the Ninth Circuit held that National Environmental Policy Act (NEPA) plaintiffs are specially exempt from the requirement of showing a likelihood of irreparable harm to obtain an injunction, affirming the nationwide injunction. Counsel for the petitioners argued that the district court, “short-circuited the requisite inquiry into the likelihood of reparable – irreparable harm, because they reasoned that the agency was going to get into this anyway in the course of preparing its environmental impact statement.” Counsel for respondents argued:In our view Petitioners lack standing to bring this case to this Court. By failing to challenge the lawfulness of the deregulation vacatur either in the Ninth Circuit or in this Court, Petitioners have an insurmountable redressability problem. They cannot get the practical relief they seek even in the event that this Court vacates or narrows the injunction.The case is being closely followed by environmental and industry groups.

[JURIST] Defense lawyers for Democratic Republic of Congo (DRC) former vice president Jean-Pierre Bemba argued before the International Criminal Court (ICC) Tuesday that charges against their client should be dropped. His lawyers argued that he has been denied due process and that the charges are illegal. Bemba was originally set to go on trial on war crimes charges on Tuesday, but the trial was postponed until July 5 to allow the court more time to consider the defense’s motion on the admissibility of the case, filed in February.
In December, the ICC ordered Bemba to remain in custody until his trial. The ruling reversed a decision issued in August ordering Bemba’s conditional release. The order for release was opposed by ICC prosecutors who appealed the original decision. The ICC has ordered Bemba to stand trial for war crimes allegedly committed in the Central African Republic (CAR) from October 2002 to May 2003. Bemba was arrested in Belgium in May 2008 after the ICC issued a warrant for his arrest for his actions in the CAR. He was indicted on charges of war crimes and crimes against humanity and transferred to the ICC in July 2008.

[JURIST] The Oklahoma State Senate on Tuesday voted 36-12 to override Governor Brad Henry’s veto of two anti-abortion bills that will now immediately become law. The first bill would prevent “wrongful life” lawsuits in which parents seek damages for a child born with a birth defect because the mother was unable to obtain an abortion. The second bill would require doctors to conduct a vaginal ultrasound at least one hour prior to an abortion while displaying and explaining the images. The 48-member senate just met the minimum of three-quarters majority required to override an executive veto. The senate’s vote comes one day after the House of Representatives voted 84-12 to override the veto.
The Oklahoma Senate voted to approve five anti-abortion bills last week, sending three to Henry for his approval and returning two to the Oklahoma State House of Representatives. Pending House approval, two additional bills would require a woman to answer 38 questions, including why she is seeking an abortion, and prohibit state health plans from covering elective abortions. The Oklahoma laws join another restrictive abortion law passed recently in Nebraska, which bans abortions after 20 weeks.

[JURIST] Mexican President Felipe Calderon on Monday strongly criticized Arizona’s new immigration law, claiming that the measure opens the door to intolerance and hatred. The Arizona bill, signed into law last week by Governor Jan Brewer, makes it a crime to be an undocumented immigrant and requires police to question anyone whose immigration status appears suspect. Calling the law a violation of human rights, Calderon promised that it will be a pressing item on his agenda during his upcoming visit to Washington in May. Calderon has also called on Mexico’s foreign ministry and consulates in the US to begin defending the rights of Mexicans and suggested that trade and political ties between Arizona and Mexico will be seriously affected.
Two Latino advocacy groups have said they plan to challenge the constitutionality of Arizona’s new immigration law, alleging it permits racial profiling. Officials from the Mexican American Legal Defense and Education Fund (MALDEF) and the National Coalition of Latino Christian Clergy contend the law will let police single out minorities for immigration inspections. US President Barack Obama has also criticized the law, calling for federal immigration reform. Under the law, it is designated a crime to be in the country illegally, and immigrants unable to verify their legal status could be arrested and jailed for six months and fined $2,500.

[JURIST] Officials in Kyrgyzstan’s interim government said Tuesday that ousted former president Kurmanbek Bakiyev has been charged with mass murder, for which he will be tried in absentia. The charges stem from an April 7 incident in which police fired on a crowd of anti-government demonstrators, killing more than 85 people. The crowd eventually overwhelmed security forces, ultimately overtaking the Kyrgyz government and forcing Bakiyev into exile. Bakiyev maintains that police only shot at the protesters after the crowd began firing on Kyrgyz government headquarters. Interim leader Roza Otunbayeva has pledged to bring Bakiyev and other members of the former government to justice, but the government has so far succeeded in securing only the arrest of former defense minister Baktybek Kaliyev and the extradition Bakiyev’s interior minister from Russia. Officials in Belarus, where Bakiyev currently resides, have not said whether they plan to return him to Kyrgyz custody. Interim government officials maintain that Belarus is obligated by treaties between former Soviet states to extradite Bakiyev.
Otunbayeva launched the new government after Bakiyev fled the capital earlier this month. Interim officials have had difficulty securing the nation in the wake of Bakiyev’s ouster, facing pro-Bakiyev protests and questions about the new administration’s legitimacy. Last week, Kyrgyzstan interim deputy leader Omurbek Tekebayev announced that the country will hold a referendum on a new constitution this summer. That same week, Human Rights Watch (HRW) urged the interim government to conduct an investigation into the violence that resulted in Bakiyev’s overthrow. UN Economic Commission for Europe (UNECE) Executive Director Jan Kubis said earlier this month that Kyrgyzstan needs international support in order to continue democratic reforms. The new government has received support from both the US and Russia.

[JURIST] A US military official has said that the US is in negotiations to transfer non-Afghan detainees at Bagram Air Base back to their home countries, Al Jazeera reported Tuesday. The military intends to return the detainees to their countries of origin in anticipation of a transfer of the facility to Afghan authorities at the end of the year. Although the military has refused to confirm the number of foreign nationals being held at the base, it is believed that approximately 30 to 60 are being detained. Rights of foreign nationals in US overseas prisons continue to present pressing legal questions as the Obama administration contemplates handing additional authority over to the Afghan government. Compounding the issue is the fact that detainees at the facility have recently alleged torture at a secret prison housed within the air base, bringing the facility into sharper focus for the US government.
Alleged prisoner abuse linked to the war on terror in Afghanistan has received international attention. This month a retired Canadian military officer who served in Afghanistan said that Canadian soldiers believed that prisoners may have been abused after being transferred to prison facilities in Afghanistan. Human rights groups have also criticized military procedures in the country. Earlier this month, the American Civil Liberties Union (ACLU) filed habeas corpus petitions on behalf of four detainees held at Bagram Air Base, claiming that none of the men has engaged in hostile behavior directed at the US, nor are they members of groups that purport to do so. In January, the US Department of Defense released a list of names of 645 prisoners detained at Bagram in response to a Freedom Of Information Act lawsuit filed by the ACLU last September. Prisoners at Bagram have launched previous habeas corpus challenges in US courts but thus far have been less successful than those held at Guantanamo Bay.

[JURIST] The US Supreme Court on Tuesday allowed a suit to proceed against drug maker Merck & Co. over the safety record of its painkiller Vioxx. The court ruled unanimously in Merck & Co. v. Reynolds that the statute of limitations in a securities fraud lawsuit begins to run once the plaintiff actually discovered or a reasonably diligent plaintiff would have discovered the violation – whichever comes first. Investors brought the class action suit against Merck in 2003, alleging that it had deliberately concealed information about Vioxx. The case was dismissed by a federal judge in April 2007 after he determined that investors were on “inquiry notice” of the alleged fraud in September 2001 when the Food and Drug Administration (FDA) released a warning letter about the painkiller. The US Court of Appeals for the Third Circuit reinstated the case in September 2008, finding that the district judge had “acted prematurely in finding as a matter of law that were on inquiry notice of the alleged fraud.” In affirming the decision below, Justice Stephen Breyer wrote:
Construing this limitations statute for the first time, we hold that a cause of action accrues (1) when the plaintiff did in fact discover, or (2) when a reasonably diligent plaintiff would have discovered, “the facts constituting the violation” – whichever comes first. We also hold that the “facts constituting the violation” include the fact of scienter, “a mental state embracing intent to deceive, manipulate, or defraud,”Justice John Paul Stevens filed a concurring opinion. Justice Antonin Scalia filed a separate concurring opinion, joined by Justice Clarence Thomas.Under 28 USC § 1658(b), a plaintiff has two years to file a claim alleging violation of the Securities Exchange Act of 1934. The first fraud complaint against the company was filed in November of 2003. Merck pulled Vioxx from the market in September 2004 after a study showed that it could double the risk of heart attack or stroke if taken for more than 18 months.

[JURIST] Indonesia’s justice minister announced Tuesday the opening of a prison wing intended to confine individuals convicted of corruption. The new wing, part of Cipinang Penitentiary in East Jakarta, is designed to hold up to 256 inmates, although only 10 people are currently incarcerated there. The country’s Corruption Eradication Commission (KPK) is responsible for sentencing inmates to prison terms in the new facility. The wing was added to alleviate overcrowding in the Indonesian prison system and was also in response to criticism that wealthy prisoners are permitted to live in luxury. Anti-corruption reform has been one of the primary concerns of President Susilo Bambang Yudhoyono, and the opening of the prison wing highlights corruption concerns in the civilian and military branches of the government.
Last week, Human Rights Watch (HRW) wrote to the Indonesian parliament urging the passage of a bill that would allow civilian officials to prosecute soldiers who commit crimes against civilians. Also last week, the independent, non-governmental organization International Crisis Group (ICG) released a report stating that “corruption continues to be a major lubricant for terrorist activities in Indonesia.” In February, the prosecution of Antasari Azhar, former chief of the KPK, again raised corruption concerns in the country. In January, Indonesian protesters took to the streets in response to corruption scandals in Yudhoyono’s administration. Last year, two senior law enforcement officials resigned after being linked to an alleged plot to weaken the KPK.

[JURIST] The US Supreme Court on Tuesday ruled 5-3 in Stolt-Nielsen SA v. AnimalFeeds International that imposing class arbitration on parties when that issue is silent in the parties’ arbitration clauses is inconsistent with the Federal Arbitration Act (FAA). The US Court of Appeals for the Second Circuit had ruled that construing the arbitration clause to permit class arbitration “did not manifestly disregard the law” because the parties specifically agreed that the arbitration panel would decide on the scope of the clause and, therefore, the panel did not exceed its authority. In reversing the decision below, Justice Samuel Alito wrote:
Contrary to the dissent, but consistent with our precedents emphasizing the consensual basis of arbitration, we see the question as being whether the parties agreed to authorize class arbitration. Here, where the parties stipulated that there was “no agreement” on this question, it follows that the parties cannot be compelled to submit their dispute to class arbitration.Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Justices John Paul Stevens and Stephen Breyer. Justice Sonia Sotomayor took no part in the consideration of the case.The case arose when AnimalFeeds filed a class action lawsuit against four major shipping companies, including Stolt-Nielsen, alleging antitrust violations. The parties had a written contract, under which their case was referred to an arbitration panel. The contract was silent as to whether class arbitrations are permissible.

[JURIST] Former Panamanian military leader Manuel Noriega arrived in France Tuesday to face money laundering charges after being extradited from the US. US Secretary of State Hillary Clinton signed a surrender warrant Monday after a federal judge lifted the stay blocking his extradition last month. Noriega will appear Tuesday before French prosecutors to hear the charges against him, which stem from allegedly laundering $3 million in drug profits by purchasing property in Paris. Noriega’s lawyers have said they will seek his immediate release, arguing that he is immune from prosecution as a former head of state.
Noriega has been fighting extradition since 2007. Last month, the US Supreme Court declined to reconsider Noriega’s petition to stop the extradition process. His lawyers filed the petition in February after the Supreme Court denied certiorari on the case in January. Noriega, who has been declared a prisoner of war, sought to enforce a provision of the Geneva Convention that requires repatriation at the end of confinement. Noriega and his wife were sentenced in absentia to 10 years in jail by a French court in 1999, but France agreed to hold a new trial if he was extradited.