Author: JURIST – Paper Chase

[JURIST] A federal judge ruled Thursday that a lawsuit that accuses Chiquita Brands International Inc. of assisting Marxist rebels who killed Colombian missionaries may go forward. The suit was brought by family members of five North American missionaries who had worked for the New Tribes Mission (NTM) in South America and were killed in separate incidents between 1995 and 1996. Judge Kenneth Marra held that the plaintiffs had sufficiently alleged that Chiquita provided funding to the Revolutionary Armed Forces of Colombia (FARC), which resulted in the deaths of the missionaries. Chiquita admitted it had paid FARC for protection of its workers but it argued that it did not condone the killings. Marra rejected this defense, saying the allegations raised the inference of a conspiracy between Chiquita and FARC.
The suit was originally filed in March 2008, and was the first of its kind brought under a 1992 law that allows US citizens to sue for terrorist acts committed by US firms abroad. In 2007, Chiquita was fined $25 million after it admitted to making payments of around $1.7 million from 1997 to 2004 to FARC and another terrorist group, the United Self-Defense Forces of Colombia (AUC) in Colombia. Following that admission, hundreds of family members of Colombians killed by FARC filed lawsuits in the US against Chiquita under the Alien Tort Claims Act (ATCA). In January, Chiquita settled a shareholder lawsuit over the illegal payments.

[JURIST] The US Court of Appeals for the Armed Forces on Friday upheld the convictions of two soldiers found guilty of offenses committed as guards at Abu Ghraib prison. Army Spc. Sabrina Harman had been convicted of conspiracy, dereliction of duty and maltreatment of prisoners dating back to November 2003. Sgt. Michael Smith, similarly, was found guilty of conspiracy to maltreat prisoners, dereliction of duty and indecent acts. Harman first gained notoriety by posing with a thumbs-up sign beside a pyramid of naked detainees, while Smith is best known for using a Belgian shepherd to intimidate prisoners. The appeals court upheld the convictions, finding no reversible error in the decision of the lower court, the Army Court of Criminal Appeals. The convictions recognized limited rights on the part of detainees outside the US.
Last May, the Obama administration decided not to release photographs allegedly depicting rape and sexual assault carried out against Abu Ghraib detainees. Sexual abuse of detainees and other rights violations at Abu Ghraib occurring after the US invasion of Iraq have long been issues of concern for rights groups such as the American Civil Liberties Union (ACLU). In 2006, Abu Ghraib was turned over to Iraqi authorities and has since been renamed Baghdad Central Prison.

[JURIST] US President Barack Obama and Secretary of State Hilary Clinton on Thursday denounced proposed legislation in the Ugandan parliament that would implement harsh punishments for homosexual behavior, including the death penalty in some circumstances. Obama called the the proposed bill “odious” and said, “we may disagree about gay marriage, but surely we can agree that it’s unconscionable to target gays and lesbians for who they are.”
Obama and Clinton’s criticism comes a day after US House of Representatives Committee on Foreign Affairs introduced a congressional resolution condemning the Ugandan bill. The US is not the only one criticizing Uganda over the proposed anti-gay bill. In January, UN High Commissioner for Human Rights Navi Pillay said the bill was discriminatory and could harm Uganda’s reputation internationally. In addition to same-sex sexual relations, the bill also imposes punishments of up to three years in prison for those who fail to report the identity of a person who is lesbian, gay, bisexual or transgendered within 24 hours, including family members. The bill has come under fire since it was introduced in October by David Bahati, a MP from the ruling National Resistance Movement (NRM). Uganda currently criminalizes homosexual behavior with up to 14 years in prison. The Ugandan parliament is expected to debate the bill in late February or early March.

[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) on Thursday charged former Serbian Radical Party (SRS) leader Volislav Seselj with contempt of the court. The charge was prompted by Seselj’s inclusion of information that could expose the identities of 13 protected witnesses in three books he wrote. Seselj’s trial just resumed in January, after being delayed for nearly a year over fears that witnesses were being intimidated.
In July, the ICTY convicted Seselj of contempt and sentenced him to 15 months in prison for authoring a book revealing pertinent information about several key witnesses. Seselj was charged with contempt last January. The ICTY had previously stripped Seselj of his right to defend himself after he failed to appear in court, despite an earlier appeals court ruling that he could represent himself provided he did not engage in courtroom behavior that “substantially obstruct the proper and expeditious proceedings in his case.” Seselj is on trial in the ICTY, charged with three counts of crimes against humanity and six counts of war crimes. He is accused of establishing rogue paramilitary units affiliated with the SRS, which are believed to have massacred and otherwise persecuted Croats and other non-Serbs during the Balkan conflict.

[JURIST] A Vietnamese court on Friday sentenced pro-democracy writer and rights activist Tran Khai Thanh Thuy to three-and-a-half years in prison on assault charges. Thuy and her husband, who received two years’ house arrest, were convicted in a one-day trial of assaulting two men during an argument about the parking of their motorbike. Thuy maintains that the men attacked her husband without provocation and that she acted only to come to her husband’s defense. Her arrest has been condemned by members of the US Congress, who called on the Vietnamese government to release human rights activists. Thuy, who has received the Hellman Prize for Persecuted Writers, was last arrested in 2009 after she publicly expressed support for six government dissidents facing trial. In 2007, she was imprisoned for nine months after founding an association to assist citizens with land claims against the government.
Vietnam has recently arrested and tried several democracy activists. Last week a Vietnamese court sentenced Pham Thanh Nghien to four years in prison on charges of spreading anti-state propaganda. Earlier in January four democracy activists were convicted of subversion in a one-day trial. Prominent human rights lawyer Le Cong Dinh, Le Thang Long, and Nguyen Tien Trung were given prison sentences between 5-7 years, and Internet entrepreneur Tran Huynh Duy Thuc received a 16-year sentence. Dinh was originally charged with spreading propaganda under Article 88, but was eventually convicted of the more serious crime of subversion. Last month, pro-democracy dissident Tran Anh Kim was also sentenced to five-and-a-half years in prison for subversion.

[JURIST] The US Department of Justice (DOJ) filed a statement of interest Thursday urging the US District Court for the Southern District of New York to reject the amended class action settlement in a copyright suit over Google’s book-scanning initiative. In its statement, which notes “substantial progress” toward resolving issues raised in September, the DOJ cites lingering copyright and antitrust concerns in the proposed settlement. The DOJ also stated that the agreement would provide Google with “anticompetitive advantages” with potentially monopolistic effects. The Open Book Alliance, a group composed of some of Google’s main competitors and several writers’ associations, praised the DOJ’s filing and said the current version of the agreement is “overreaching.” The settlement is expected to be reviewed by Judge Denny Chin on February 18.
The case originated when two lawsuits were brought against Google by the Authors Guild, a group seeking to preserve copyright protection for authors, and by other plaintiffs including the Association of American Publishers (AAP), McGraw-Hill, Penguin Group, and Simon & Schuster. Under the terms of the original settlement agreement, which was reached in October 2008, Google would pay $125 million to authors and publishers of copyrighted works. In return, Google would be allowed to display online up to 20 percent of the total pages of a copyrighted book, and would offer users an opportunity to purchase the remainder of any viewed book. In a separate case, a French court ruled in December that Google violated French copyright law through its book-scanning initiative.

[JURIST] UN Secretary-General Ban Ki-Moon said Thursday that it is unclear whether Israel and Palestine have fully met UN demands to set up a commission to investigate war crimes that may occurred during the Gaza conflict. The UN General Assembly adopted a resolution in November giving Israel and Palestine three months to complete an investigation into war crimes allegations. In a press briefing before Ban’s report to the General Assembly, a UN spokesperson said that the secretary-general has received reports from both the Israeli and Palestinian governments, but he is unsure about whether they fully comply with the UN resolution. Ban’s report to the general assembly is expected to be released after UN member states first receive a copy.
Last week, the Israeli Foreign Ministry released its 46-page report to the UN, partially detailing Israeli operations in Gaza and revealing that the Israeli military had disciplined two high-ranking Army officers for firing shells into a populated area in the Gaza strip. Hamas has also denied that it committed war crimes, saying that Israeli civilian deaths during the conflict were an accident. The investigations come after the UN Human Rights Council (UNHRC) adopted the findings of the Goldstone Report, the result of a UNHRC fact-finding mission which said that both the Israeli Defense Forces and Hamas had committed war crimes during the conflict.

[JURIST] The African Commission on Human and People’s Rights ruled Thursday that the government of Kenya violated the rights of the Endorois people when it forcibly evicted them from their land. The Endorois are a group of about 60,000 people who were removed from their land around Lake Bogoria in 1973 when the Kenyan government began developing the region. They were represented by Minority Rights Group International (MRGI) and the Kenyan organization Minority Rights Development, which filed the initial complaint with the commission in 2003. The African Commission found that the government violated Articles 1, 8, 14, 17, 21 and 22 of the African Charter on Human and Peoples’ Rights, and ordered the government to take steps within three months to begin returning the land to the Endorois and providing them with compensation. A Human Rights Watch (HRW) lawyer representing the Endorois applauded the decision, calling it “the first of its kind.” Another lawyer for the Endorois, Korir Sing’Oei, praised the commission’s decision:
This ruling is likely to further expose the inadequacy of Kenya’s current constitution, which fails to accord protection to minorities, indigenous peoples and other marginalized groups. It will put pressure on those drafting the new constitution to put in place positive measures to address this glaring omission.Kenya is currently in the process of revising its constitution, having unveiled a new draft in November. Other African peoples have faced similar land disputes with their governments, including the Botswana San, or Bushmen people who were relocated by the government from the Central Kalahari Game Reserve in 1997. A spokesperson for a rights group representing the Bushmen announced last month that they would take their land dispute case against the Botswana government to the International Court of Justice (ICJ).

[JURIST] Haitian authorities charged ten US citizens Thursday with kidnapping 33 children. The Americans, many of whom were from the Idaho-based New Life Children’s Refuge, were arrested last week for attempting to take the children across the Haitian border into the Dominican Republic where the group claimed it hoped to start an orphanage. Haitian authorities claim, however, that many of the children were not orphans, but given up by their parents to the missionaries who promised a better life for the children. Group-leader Laura Silsby denied Haitian authorities’ claims that the group intended to put some of the children up for adoption. The ten were each charged with one count of kidnapping and one count of criminal association. Lawyer Edwin Coq, who is representing the group, said that prison conditions were sub-standard and that his clients were not receiving adequate food and water. If convicted, the missionaries face up to 24 years in prison.
Last week, UN High Commissioner for Human Rights Navi Pillay said that strengthening human rights is an integral part of the rebuilding process in Haiti. In her remarks, Pillay mentioned the role that the inhumane living conditions may have had in the high casualty numbers resulting from the January 12 earthquake, placing blame on the regime of Francois Duvalier for those conditions. Last month, US President Barack Obama signed a bill that will allow US citizens to claim donations to Haitian relief efforts as a deduction on their 2009 tax returns. Secretary of Homeland Security Janet Napolitano announced that Haitian nationals present in the US before the earthquake will be given temporary protected status and will not be deported for the next 18 months, but Haitian refugees who arrive in the US illegally will be sent back to their home country. The US has also granted humanitarian parole to Haitian orphans to allow them to enter the US for medical treatment. The 7.0 magnitude earthquake caused massive damage to property and infrastructure in Haiti, and the death toll has been estimated at 150,000.

[JURIST] Canadian Foreign Affairs Minister Lawrence Cannon said Wednesday that the Harper administration will not seek the repatriation of Guantanamo Bay detainee Omar Khadr. Cannon said that while the government is considering options to remedy the violation of Khadr’s constitutional rights, it will not press for his return because he faces charges in the US. Spokesperson for Prime Minister Stephen Harper, Dimitri Soudas, affirmed that this decision does not represent a shift in the government’s policy toward Khadr, who is set to go before a US military commission in July on numerous charges for allegedly throwing a grenade that killed a US army medic.
This announcement follows last week’s ruling, which held that the interrogation of Khadr by Canadian officials while in detention violated section 7 of the Canadian Charter of Rights and Freedoms. 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. The ruling overturned a Federal Court of Appeals decision, which upheld a lower court order requiring the federal government to seek Khadr’s repatriation.

[JURIST] Prosecutors from the US Attorney’s Office for the Northern District of Illinois issued a superseding indictment against former Illinois governor Rod Blagojevich Thursday. The new indictment, which does not allege additional wrongdoing but contains eight new charges related to racketeering, extortion, and bribery, allows prosecutors to try Blagojevich without relying on the federal honest services fraud statute, which some believe the Supreme Court may soon declare unconstitutional in some contexts. Blagojavich is scheduled to be arraigned next Wednesday, with his trial set to begin in June.
In December, the Supreme Court heard oral arguments in two honest services fraud cases. At issue is whether the statute applies to a private defendant where there is no proof he intended to cause economic harm and whether the statute is applicable without showing that a plaintiff violated a separate law. In October, the Supreme Court granted certiorari to determine whether ex-Enron CEO Jeffrey Skilling may be prosecuted under the “honest services” fraud statute absent proof that he intended to privately gain through the alleged fraud. In April, Blagojevich pleaded not guilty to 16 felony counts, including wire fraud, attempted extortion, racketeering conspiracy, extortion conspiracy, and making false statements. In January 2009, the Illinois State Senate voted unanimously to convict Blagojevich of abuse of power and remove him from office. Blagojevich and his chief of staff John Harris were initially arrested in December on allegations that they had conspired to sell the Senate seat left vacant by President Barack Obama.

[JURIST] The New York Office of the Attorney General on Wednesday filed civil charges against Bank of America (BOA), former CEO Ken Lewis, and former CFO Joseph Price, alleging that the bank mislead investors in order to acquire financial firm Merrill Lynch. The complaint alleges that Merrill Lynch had significant losses in the months leading up to a shareholder vote on the merger and that Lewis and Price violated the New York Martin Act because they knew of the losses but failed to disclose them to shareholders before the vote. The complaint criticized BOA and its executives, stating:
This merger has, in many ways, become a classic example of how the modus operandi of our nation’s largest financial institutions led to the near collapse of our financial system. … Ultimately, this was an enormous fraud on taxpayers who ended up paying billions for BOA’s misdeeds. Throughout this episode, the conduct of Bank of America, through its top management, was motivated by self-interest, greed, hubris, and a palpable sense that the normal rules of fair play did not apply to them. Bank of America’s management thought of itself as too big to play by the rules and, just as disturbingly, too big to tell the truth.New York Attorney General Andrew Cuomo further criticized the firm saying the merger was an example of the type of behavior that nearly destroyed the US financial system.The lawsuit comes less than a month after the US Securities and Exchange Commission (SEC) filed federal charges against BOA related to the undislosed losses. Also in January, US President Barack Obama proposed new banking rules that he claimed would stabilize the banking system and reduce the risk of future bank failures. In September, a judge for the US District Court for the Southern District of New York rejected [JURIST] a $33 million settlement agreement between the SEC and BOA over misleading investors regarding billions of dollars paid to Merrill Lynch executives during the merger.

[JURIST] A Spanish Supreme Court judge ruled on Thursday that National Court judge Baltasar Garzon may have exceeded his jurisdictional authority when he launched an investigation into war crimes allegedly committed under Francisco Franco during the Spanish Civil War. In October 2008, Garzon ordered the exhumation of 19 mass graves in Spain, and ordered government agencies and the mayors of four cities to produce the names of people buried in mass graves in order to assemble a definitive national registry, despite a 1977 amnesty law. The Supreme Court allowed the investigation into Garzon’s actions as a result of a complaint filed by Manos Limpias, a union of public servants in Spain, which alleged that Garzon acted without jurisdiction in violation of Penal Code Article 446 when he began his probe into the crimes committed by the Franco regime. A five-judge panel of the Supreme court will now decide whether to uphold the court’s ruling, which could lead to formal charges. If charged and convicted, Garzon could face disbarment. Garzon maintains that he acted within the bounds of the law and appropriately applied the law at all times.
Garzon is widely known for using universal jurisdiction extensively in the past to bring several high-profile cases, including those against Osama bin Laden and former Latin American dictator Augusto Pinochet. Last week, Garzon announced he will begin an inquiry into the suspected torture and ill-treatment of detainees held at Guantanamo Bay. The Obama administration has not responded to Garzon’s questions regarding the open investigation of detainee abuses at the facility. Garzon’s inquiry has focused on Spanish citizen and ex-Guantanamo detainee Ahmed Abderraman Hamed, and three others whom Garzon has said have significant connections with Spain. The domestic focus is due to recently passed laws that limit the use of universal jurisdiction to offenses committed by or against Spaniards, or where the perpetrators are in Spain.

[JURIST] The Italian Chamber of Deputies approved a bill Wednesday that would allow cabinet ministers, including Prime Minister Silvio Berlusconi, to postpone criminal proceedings against them on the grounds that they would interfere with official duties. The legislation, passed by a vote of 316-239 with 40 members abstaining, would allow officials to suspend trials against them for up to 18 months by claiming a “legitimate impediment” to appearing in court. Critics contend that the legislation is specifically designed to protect Berlusconi from the prosecutions he faces, while supporters claim that it will modernize the country’s judicial system. The bill now proceeds to the Senate for consideration.
In January, hundreds of Italy’s judges walked out of their courtrooms to protest the passage of legislation that placed strict time limits on the trial and appeals process. That bill was also criticized as being tailored for Berlusiconi’s benefit and would result in the automatic dismissal of two pending corruption cases against him. Later that month, it was reported that Berlusconi could also face a third trial based on information that surfaced a week after judges postponed his trial at his lawyers’ request. It was the trial’s second delay since a 2008 law granting immunity to him and four others was struck down by the Italian Constitutional Court in October. A tax fraud trial against Berlusconi was similarly postponed last year. The leader has been previously acquitted of false accounting and bribery, and has had other charges against him dropped.

[JURIST] The president of China’s Supreme People’s Court, Wang Shengjun, called Wednesday for increased efforts to fight corruption in the country’s court system. While Shengjun noted that progress has been made, he said that efforts must continue to establish a system to prevent and punish instances of corruption in the courts. Chinese courts are under the control of the Communist Party of China (CPC), which announced plans in January to increase its oversight of the families of government officials to control corruption. The SPC also recently announced new anti-corruption regulations in an effort to increase public confidence in the rule of law.
Wang’g statements come two weeks after former SPC vice president Huang Sonyou was convicted on bribery and embezzlement charges. Huang is the highest-ranking judge to be charged with corruption since the founding of the People’s Republic of China. Between 2005 and 2008, Huang allegedly embezzled 3.9 million yuan (about $574,000 USD) while serving as vice president of the SPC. He also allegedly embezzled 1.2 million yuan (about $175,000 USD) while serving as president of the Intermediate People’s Court of Zhanjiang in 1997.

23 interior ministry officials for allegedly attempting to rebuild the Baath party. The Iraqi De-Baathification Commission, established in 2003, has prompted the removal of approximately 30,000 alleged Baathists from public life. In 2008, Iraq adopted the Accountability and Justice law, which allows most former Baathists to be reinstated into public life.

[JURIST] US Attorney General Eric Holder on Wednesday defended his decision to charge suspected terrorist Umar Farouk Abdulmutallab, the so-called Christmas Day bomber, in US federal court. Holder, who has resisted calls from high-level Republicans to try Abdulmutallab in front of a military tribunal, said that the civilian criminal justice system was capable of handling his trial. In a letter to Senate minority leader Mitch McConnell (R-KY), Holder cited longstanding government policy, first initiated under former president George W. Bush, that suspects apprehended on US soil are tried in civilian court. Holder also defended his decision to read Abdulmutallab his Miranda warnings as consistent with FBI policy on custodial interrogations. He said:The decision to charge Mr. Abdulmutallab in federal court, and the methods used to interrogate him, are fully consistent with the long-established and publicly known policies and practices of the Department of Justice, the FBI, and the United States Government as a whole, as implemented for many years by Administrations of both parties. Those policies and practices, which were not criticized when employed by previous Administrations, have been and remain extremely effective in protecting national security. They are among the many powerful weapons this country can and should use to win the war against al-Qaeda.
I am confident that, as a result of the hard work of the FBI and our career federal prosecutors, we will be able to successfully prosecute Mr. Abdulmutallab under the federal criminal law.In a speech to the Heritage foundation Wednesday, McConell said that the Bush administration had been wrong in seeking civilian trials for terrorism suspects as it went against hundreds of precedent and the law of war.Abdulmutallab was indicted last month on six counts for allegedly attempting to set off an explosive device on Northwest Airlines Flight 253 bound from Amsterdam to Detroit. A plea of not guilty has been entered on his behalf. A report released last month by New York University’s Center on Law and Security said that federal courts provide an effective venue for prosecuting terror suspects, securing convictions in 89 percent of cases since 2001. The Obama administration is reportedly also considering trying Riduan Isamuddin, the suspected planner of the 2002 Bali nightclub bombing in federal court in Washington DC.

[JURIST] A jury in the US District Court for the Southern District of New York on Wednesday convicted Aafia Siddiqui, a Pakistani woman with alleged ties to al Qaeda, on charges of attempting to murder US personnel at the Afghan facility where she was being held. Prosecutors claimed that while in US custody in Afghanistan, Siddiqui lunged for and grabbed an unsecured M-4 rifle and opened fire on her captors. US personnel returned fire, injuring Siddiqui. Siddiqui denies both handling the weapon and attacking the personnel. In addition to two counts of attempted murder, the jury found Siddiqui guilty of armed assault against US officers and employees, using and carrying a firearm in relation to a crime of violence, and assault against US officers and employees. The jury found that the attempted murders were not premeditated. Neither Siddiqui nor her lawyers have announced whether they will appeal the verdict. Sentencing is scheduled for May 6.
Siddiqui had to be removed from court when her trial began last month because she began screaming and protesting her innocence as the trial opened. Siddiqui underwent a psychiatric evaluation and was judged fit to stand trial in July. Siddiqui, who was extradited to the US in August of 2008, was shot in the abdomen during the July skirmish leading to her charges. She has since refused proper medical care as well as communication with her legal counsel. Siddiqui’s family has insisted that she is not an al Qaeda agent and that the FBI has publicized misleading information about her. They say that Siddiqui, a former student at Brandeis University and MIT in Boston, may have been a victim of extraordinary rendition after she vanished from Karachi, Pakistan in 2003. Defense lawyers have alleged that Siddiqui may have been wrongly detained and tortured at Bagram air base in Afghanistan. Siddiqui was taken into custody in July 2008 after she was found loitering outside a provincial governor’s compound with suspicious items in her handbag.

[JURIST] An Amsterdam trial court ruled Wednesday that it has jurisdiction to try right-wing politician Geert Wilders for statements against Islam. The court rejected Wilders’s claim that he should be tried by the Supreme Court as a member of parliament, finding that Wilders’s alleged crime was committed outside his capacity as an MP. The court also rejected all but three of the 18 witnesses Wilders had planned to call. The court will hear the three remaining witnesses, all of whom are experts on Islam, without the jury present. Wilders had hoped to defend his criticisms of Islam and show its dangers by calling to the stand Islamic extremists including Muhammed Bouyeri, who is currently serving a sentence of life imprisonment for murdering Dutch filmmaker Theo Van Gogh. Wilders’s trial is expected to begin June 1.
Last month, the court refused a motion to drop or dismiss the charges against Wilders. In September, the Public Prosecution Service (OM) announced that they would prosecute Wilders following a January 2009 court order by the Amsterdam Court of Appeals. This decision came after the OM announced in June 2008 that it would not prosecute Wilders. Much of the controversy stems from Wilders’ 15-minute film, Fitna, which shows images of the Quran alongside images of violence and says democratic values are threatened by the increasing number of Muslims in Europe. UN Secretary General Ban Ki-moon called the film “offensively anti-Islamic” after its release. In February 2008, Pakistan blocked access to YouTube’s website because it had posted a movie trailer for Wilders’ film, but access was restored several days later. Indonesia followed suit in April 2008. The same month, a district court in the Netherlands rejected a bid by the Dutch Islamic Federation to block Wilders’ anti-Quran statements, saying that his comments are protected by the right of free expression and do not constitute speech that incites hate or violence.

[JURIST] A federal appeals court on Tuesday upheld the majority of an injunction against an Oklahoma anti-illegal immigration law, but did permit the state to enact a provision whereby businesses would have to check their employment roster against a state list of eligible workers through a pilot program. The three-judge panel, sitting at the US Court of Appeals for the Tenth Circuit, considered whether to uphold an injunction against the Oklahoma Taxpayer and Citizen Protection Act of 2007, which required, among other provisions, three sections that were at the heart of the appeal: that businesses use a pilot program to verify the work authorization status of their employees (7B); that firing a US citizen or legal immigrant, while simultaneously employing an immigrant who is in the US unlawfully, be recognized as an unfair trade practice, giving the fired employee a private cause of action (7C); and that contractors verify the immigration status of their independent contractors, or withhold taxes from them (9). The panel found that federal law preempted sections 7C and 9, but split on whether section 7B was similarly preempted, disagreeing as to whether state mandatory electronic verification of employee status conflicted with voluntary use of a federal database. In a concurrence that found no preemption of section 7B, Judge Kelly wrote:
Though E-verify is voluntary (as of yet) at the national level, it is not reasonable to assume that a mandatory program choice for state public contractors conflicts with Congressional purpose. … To hold that the State is preempted from requiring such use in these circumstances reads too much into the federal government’s provision of choice.In upholding the injunction against the other provisions, the panel found that the plaintiffs had standing to challenge the suit and were likely to succeed on the merits, meaning the trial would continue in district court, though it is unknown when it will continue.The national E-Verify system is a no-charge, Internet-based system that checks employee identification through either their Social Security Administration (SSA) number or a photographic match database. The voluntary E-Verify system differs from the mandatory “no match” system that the Department of Homeland Security (DHS) rescinded in October. That system would have mandated that employers fire any employee whose information did not match SSA records. In a step towards reducing the voluntary nature of the E-Verify system, in July, DHS Secretary Janet Napolitano announced that the current administration supported regulations that would only supply contracts to employers who used the system. The E-Verify system was given its first boost when then-president George W. Bush signed an executive order mandating that all federal agencies require those they contract with to use the system. That order was signed just one week after the US District Court for the Western District of Oklahoma enjoined the three disputed sections of the Oklahoma Taxpayer and Citizen Protection Act.