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 Wednesday, October 03, 2012

International Justice: Tutu's Push for Reform
12:10 PM ET

JURIST Guest Columnist Eric Leonard, the Henkel Family Chair in International Affairs at Shenandoah University, says that Archbishop Desmond Tutu's statements regarding the prosecution of George W. Bush and Tony Blair serve as an ardent call for advancement towards a truly universal system of justice...

While Archbishop Desmond Tutu's recent call for the International Criminal Court (ICC) to pursue the prosecution of former US President George W. Bush and former UK Prime Minister Tony Blair for the 2003 invasion of Iraq may be interesting and engaging, it is not legally viable. However, I am not sure that Tutu intended the ICC to act on his recommendation. It is probably more defensible that his call was political in nature rather than legal, in a hope that the system of international criminal justice would move forward in providing mechanisms for prosecution of such situations. Unfortunately, this political push has little to no chance of gaining traction despite the best intentions of such an esteemed international figure.

Let me begin with a discussion of the legal viability, or lack thereof, of this recommendation. The ICC, except in very particular circumstances involving a UN Security Council (UNSC) resolution, is not a court with universal jurisdiction. Therefore, in order for the ICC to prosecute, the crime must have been committed in the territory of a member state or by a national of a member state. Iraq is not currently a member state, so that path to prosecution is not possible. Further, the US is also not a member state, so prosecuting Bush is likewise not feasible. While the UK is a member state, another glaring impediment to prosecution in this circumstance is the crime itself. It appears that Tutu is calling for prosecution according to the crime of aggression. The problem is that the crime of aggression is not currently actionable under the Rome Statue — the governing statute of the ICC. Therefore, it is even less practical to consider prosecution of either Bush or Blair.

However, as I stated earlier, this is not truly a call for a legal response to this situation. This appears to be an attempt to initiate a political discussion about such behavior by the world's most powerful leaders. If it were a truly legal claim, why not push for prosecution of former Australian Prime Minister John Howard? While Australia was a major player in the Iraq invasion, the reality is that Tutu wants to make a political statement by going after predominant world powers and pushing for a system of justice that is more objective in its application. While an objective system of justice is the main focus of the ICC, the court is not fully capable of tackling this problem.

The ICC remains a part of the larger political landscape and is constrained by the distribution of capabilities that make up that political context. Could Bush be prosecuted for war crimes in Iraq? Technically yes, but such a prosecution is only possible with a UNSC resolution granting the ICC jurisdiction over the case. Even if such a resolution were granted, the US could gain exemption from this prosecution like it did in Sudan and Libya — the other two ICC cases involving universal jurisdiction.

In the case of Sudan, the Bush administration chose to abstain from Security Council Resolution 1593, which referred the Darfur situation to the ICC. No one believed the Bush administration would vote in favor of the resolution, given the belligerent attitude of the administration towards the ICC at this time. In fact, most observers believed a veto was a given. It is plausible to argue that the primary reason the Bush administration abstained from this vote, rather than veto, was the exemption in the resolution for UN and US soldiers deployed in that area who are not party to the Statute. As stated in the Security Council Resolution:

The Security Council ... [d]ecides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State.
In short, if the US had soldiers or personnel in the Darfur region, they would be exempt from ICC prosecution.

The events in Libya presented a similar situation. The Obama administration voted favorably for Security Counsel Resolution 1970 [PDF] granting the ICC jurisdiction in Libya. While this approval of the resolution shows the Obama administration's more amiable relation with the ICC, it still exhibits the exceptionalism of the US toward the ICC. Again, a favorable vote was dependent on US exemption from prosecution. In language similar to the Darfur resolution, the document states that:

[The] Security Council ... [d]ecides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.
Although many analysts do not discuss these exemptions, it is critical to understand that the ICC can only gain universal jurisdiction with such stipulations. Thus, Tutu's call appears idealistic from a legal standpoint. Again, however, I believe that Tutu's main point is more political in nature. Tutu's intent is not necessarily to bring Bush and Blair to justice, for he wishes to expose the shortcomings of the international criminal justice system and the means by which to correct it. Only by doing this can the dialogue on international justice evolve.

Another mechanism utilized to prosecute those accused of committing war crimes, crimes against humanity or genocide, is domestic prosecution by states not directly involved in the situation (meaning no relation to the location of the crime, the accused or the victims). This is a pure form of universal jurisdiction with prosecution coming from such states as Canada or, at one time, Belgium. In fact, this may be the most feasible option for prosecuting the leaders of dominant states, but again the politics of the system appear to trump the legality of the case.

The best exemplification of this issue involves the old Belgium universal jurisdiction law and their attempts to uphold a universal sense of justice. In 1999, the Belgian government passed a law (which was an amendment to a 1993 law) stipulating that "[t]he Belgian courts shall be competent to deal with breaches provided for in the present Act, irrespective of where such breaches have been committed." Such a proclamation meant that the Belgium government could prosecute for an act of genocide, war crimes or crimes against humanity regardless of where the crime occurred, who committed the crime or whom it victimized. It was truly universal jurisdiction. In 2001 they acted on this law and prosecuted four Rwandan citizens for their role in the 1994 genocide. The Butare Four case, as it became known, was crucial to the discussion of jurisdiction and powers of prosecution. It seemed that a new era of international criminal justice might be dawning.

However, the specter of power politics once again reared its ugly head.

In the aftermath of the trial, a plethora of cases were presented to the Belgian prosecutors. These included criminal complaints against former US President George H. W. Bush, former US Vice President Dick Cheney, former US Secretary of State Colin Powell and retired General Norman Schwarzkopf — all for alleged crimes committed during the first Gulf War. Additionally, there were several legal complaints filed against numerous government officials, including Augusto Pinochet, Fidel Castro, Saddam Hussein and Yasser Arafat. You can imagine the trepidation that these governments felt at the thought of a foreign government being able to prosecute their former leaders. Thus, the US took action and pressured the Belgians into amending the law, going so far as to threaten the removal of NATO headquarters from Brussels. According to the amended law, Belgian courts can now only proceed if the case involves a Belgian citizen — either in regards to the nationality of the defendant and/or the victim. In short, the Belgian law is no longer predicated on universal jurisdiction but extraterritorial jurisdiction, as are most ICC cases.

So what does this tell us about Tutu's call for prosecution of these former leaders? It tells us that he is trying to find a solution to the core problem of international criminal justice: the lack of objectivity. While Tutu's call shows the inability of the international community to currently overcome this problem, this is not a cause for dismay amongst the international justice advocates. One need only look at the evolution of humanitarian law over the past century to gain perspective. The international system has come a long way from Nuremberg and Tokyo, and the creation of an ICC and prosecutions by domestic governments shows promise for the future. Tutu is simply pushing for further change and advancement that may one day come in the form of a truly universal system of justice. His comments should be praised and the system should continue to evolve.

Eric Leonard is the Henkel Family Chair in International Affairs at Shenandoah University. His primary areas of expertise are global politics, foreign policy, human rights, humanitarian law and political philosophy. He has published several articles and is the author of The Onset of Global Governance: International Relations Theory and the International Criminal Court.

Suggested citation: Eric Leonard, International Justice: Tutu's Push for Reform, JURIST - Hotline, October 3, 2012, http://jurist.org/hotline/2012/10/eric-leonard-tutu-icc.php .

This article was prepared for publication by Stephen Krug, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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 Thursday, September 27, 2012

Hedges Decision Symptomatic of Poor Detention Policy
6:09 PM ET

JURIST Contributing Editor Gabor Rona, International Legal Director of Human Rights First, argues that the new wave of lawsuits regarding the NDAA stem from the poor detention policies of the US...

This week, the US Court of Appeals for the Second Circuit will consider whether to stay US District Judge Katherine Forrest's decision in Hedges v. Obama, granting a permanent injunction on First Amendment grounds against the detention powers enumerated in Section 1021(b)(2) of the FY2012 National Defense Authorization Act [PDF] (NDAA). Much of the discussion has been about Forrest's questionable application of domestic law, including whether the plaintiffs have standing and whether the law that permits detention without charge or trial is so vague or overbroad as to impinge on rights of free expression. I want to focus instead on how the failure to honestly deal with applicable international law contributes to the seeming injudiciousness of the decision.

Forrest's opinion is a Rorschach test. And I think the reason is that Forrest, like most every other authority over these issues — be they executive, legislative or judicial, as well as most pundits — is wittingly or unwittingly trapped by the original sin: the decision to indiscriminately round up suspects in Afghanistan in the immediate aftermath of 9/11. We remember how the US littered the Afghan countryside with tens of thousands of flyers offering a smart reward for turning in bad guys, and we know what that can mean in a poor country with almost as many disputes between families, tribes and villages, as there are families, tribes and villages. Yet, Donald Rumsfeld didn't care. He just needed bodies to fill the "enhanced interrogation" centers.

These detention practices necessitated the Bush administration's memo of February 7, 2002 [PDF], which denied that detainees are protected by what it sloppily referred to as "Geneva." Bush did so because under "Geneva" and human rights law (the applicability of which the Obama administration continues to deny), most of those early captives would have been entitled to some modicum of legal process.

So, the tail that is the Bush memo is created to wag the dog of a lousy detention policy.

However, because we're a "rule-of-law" kind of people, we don't leave it at that. Instead, we create a new name and make-believe legal status for these detainees: "enemy combatant," "unlawful enemy combatant," or today's "unprivileged enemy belligerent." And to put some flesh on the bone of those terms, we import by analogy into this new kind of conflict, the understandably considerable powers of the Third Geneva Convention's rules for detention of prisoners of war applicable to wars against other States. These Third Geneva Convention powers are understandably considerable because in US vs. Germany, for example, the right to detain the enemy does not require much process to determine that the guy wearing the Third Reich's uniform is the enemy. The US chose to define "enemy combatant" to include what the law of inter-State armed conflict considers civilians as well as combatants. And to make matters worse, the US also decided to apply to this mélange those traditional detention standards meant only for combatants: the power to detain "until the end of hostilities." That's not only bad law, it's bad policy in a "war" that may or may not all be war against amorphous non-State entities, and that may never end. In any case, as a matter of international law, civilians under traditional inter-State armed conflict rules may only be detained so long as they remain a security threat, even if hostilities continue.

In transplanting rules from where they belong to where they do not, the US not only misuses the law of war during conflict, it also, perhaps even more harmfully, applies the law of war to non-war. Armed with the rationale that old rules are inadequate for new conflicts, the US has sought to justify the application of expanded wartime rules to detain people outside the context of war. And within war, the US attempts to justify detention of civilians under broad powers meant for the detention of combatants.

And if importing detention policy from international armed conflict into non-international armed conflict is enticing, then why not import targeting policy as well? To that end, the US applies terms like "associated forces" without defining the concept and justifies its use with reference to the concept of "co-belligerency," which applies to wars between States, not wars with non-State actors. At the same time, the US declines to import even the understandably meager and commensurate substantive limitations and due process protections that the Geneva Conventions and customary international humanitarian law apply to targeting and detention, let alone applicable human rights law.

Congress and the US Court of Appeals for the District of Columbia Circuit then put the "Good Housekeeping Seal of Approval" on it all with the detention provisions of the NDAA and a series of decisions reversing district court grants of Guantanamo detainees' habeas petitions. The court goes an extra step to conclude that basically anything the government claims is evidence is, indeed, evidence, and that any evidence will do to justify detention. By denying certiorari of any detainee cases, the US Supreme Court effectively overrules its recent decision in the Boumediene v. Bush case that detainees are entitled to "meaningful review," and implicitly piles on to the conclusion that smoke and mirrors pass for both grounds for detention and for meaningful judicial review.

Eliding the distinctions between "war" and "not war," between international and non-international armed conflict is almost as easy — and effective — in liberal and moderate political circles as it is at the American Enterprise Institute (AEI). All you have to do is ridicule the provisions of the Third Geneva Convention that require POWs to be paid in Swiss francs and provided with musical instruments. Yet those who actually know how and why security and liberty interests are balanced differently between war and peace, and, more to the point, between international and non-international armed conflict, are not so easily co-opted by the charge that traditional laws of war are, in the now famous words of former Attorney General Alberto Gonzales, "quaint." To criticize the international humanitarian law of international armed conflict for its inadequacy in non-international armed conflict, or in non-armed conflict, makes little sense. It's like calling antitrust law useless because it doesn't prevent brokers from conducting Ponzi schemes. And it fails to appreciate the very good reasons why States declined to ensconce non-international armed conflict powers in the laws of war; why they wanted them to be left instead to domestic law. (For example, because they want those who take up arms against the state to be considered lowly criminals, not exalted warriors)

Anyway, we end up in a perfect closed circle. We apply the laws of war to where they don't belong and with magical thinking about its content even where it does belong. Then we justify taking liberties with it because our imagined version of it is still not adequate to our felt needs. By the time this all gets to Forrest, the true limitations of the law of war and human rights law as applied in armed conflict are so obscured as to play virtually no role. The (self)-deception about applicable law that was set in motion on February 7, 2002 by President George W. Bush is still the main reason we end up with such a tangled web of an opinion.

Gabor Rona is the International Legal Director for Human Rights First. Prior to joining Human Rights First, he was Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC). Rona has extensive experience in international criminal law and international humanitarian and human rights law in the context of counter-terrorism policies and practices. He is a frequent JURIST contributor.

Suggested citation: Gabor Rona, Hedges Decision is Symptom of Poor Detention Policy, JURIST - Hotline, September 27, 2011, http://jurist.org/hotline/2012/09/gabor-rona-ndaa-symptom.php

This article was prepared for publication by Sean Gallagher, head of JURIST's Professional Commentary services. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

Link | how to subscribe | © JURIST

 Tuesday, September 04, 2012

Invisible Prisoners: The Fight for Human Rights
2:09 AM ET

JURIST Guest Columnist Katherine Todrys of the Health and Human Rights Division of Human Rights Watch recounts her experiences researching disease transmission and living standards in African prisons. She calls for sweeping criminal justice reforms to address the systemic problems of overcrowding, human rights abuses and wrongful imprisonment...

In 2008, recently out of Yale Law School, I traveled to Malawi with a development organization and met a local prosecutor over lunch. Making conversation, I asked her what type of cases she prosecuted: "Murders," she said. When I asked why a career as a homicide prosecutor in particular had appealed to her, she just stared at me. "We only prosecute murders," she repeated. "Everyone else — we arrest them, they just wait in prison."

Malawi is not alone in taking such an approach. Throughout sub-Saharan Africa, tens of thousands of people languish for days, months or years in overcrowded prisons waiting for their day in court and suffering from malnourishment, beatings and abuse, and often contracting diseases like tuberculosis (TB). If or when these prisoners finally see a judge, only rarely could the interests of "justice" be said to be served. Learning all of this — and being an idealistic, freshly minted law school graduate intent on fighting for justice — I thought I had found a population that was invisible to the world. I thought that exposing the situation would lead to outrage.

I was wrong.

Incarceration Without Conviction
What one sees in an African prison can be so far below acceptable standards, it is hard to forget. In September 2009, I arrived at the maximum security Mukobeko Prison in Kabwe, Zambia, to research health problems among prisoners for Human Rights Watch (HRW). As the overstuffed chairs of the prison administrators' office gave way to the scorching sun of the central courtyard, a few details immediately caught my attention. Many of the prisoners wore only a single, decrepit sandal. The prisoners' uniforms sometimes consisted only of a single piece of cloth that barely covered their bodies. The smell of the "toilets" — holes in the ground — was nauseating. Roaches climbed the walls and lice covered the blankets in the tightly packed cells. Prisoners crowded on top of one another at night without even the floor space to sleep. On the day that I visited, the prison's woodshop was building coffins.

Yet more than a third of Zambia's prisoners have never been convicted of a crime.

I live in New York City and I have traveled extensively throughout Africa. I have visited foster homes in the South Bronx and health clinics in Ghana, Mali and Malawi. It is hard to avoid being desensitized to suffering when it is an inevitable part of your daily commute. However, nothing could have prepared me for the moment when I walked into a prison in Lusaka, Zambia and peeked through the doorway of the TB "isolation" cell. I saw prisoners lying on the concrete floor — emaciated, lifeless — and I thought: these people could die today. Had some of them died already? Zambian lawyers told me that the prison officers carried the bodies of the dead out in the night to avoid spreading panic.

These images were seared into memory, and I realized that I was one of only a few who had seen these conditions. Prisons are closed environments of little concern or priority, even to the often-ubiquitous non-governmental organizations (NGOs) that blanket the landscape. However, the high walls of prisons are not the only reason that the treatment of prisoners receives so little attention. Prisoners are beset by indifference throughout the world. Prisoners — including those who are awaiting trial and have not had the legal counsel or resources necessary to secure bail — are politically marginal, typically impoverished, often members of racial and ethnic minorities and easy to ignore. African governments often have little interest in addressing conditions in prisons, and the communities surrounding prisons may wonder why the health of suspected or convicted criminals should take precedence over government resources that could go toward addressing the needs of "law-abiding citizens."

Prisons are a modern institution and a colonial legacy in Africa. Michel Foucault chronicled the evolution of penal styles in the US and Europe in the late eighteenth and early nineteenth centuries in Discipline and Punish: The Birth of the Prison. Foucault described the move away from torture as a public spectacle and toward punishment as an economy of suspended rights (though forced labor, strict food rationing and corporal punishment all remain prominent in African prisons). Prisons were established during the same time period when the European powers were colonizing Africa — exporting these new penitentiary theories and applying them to control and extract labor from local populations. Almost a half-century after the end of colonial rule in Africa, brutal confinement and forced labor are still the norm.

As in Zambia, the prison populations of many African countries include thousands of people who have never been convicted of a crime. Half or more of the prison populations in Angola, Benin, Burundi, Cameroon, Chad, Comoros, Congo, Liberia, Mali, Niger, Nigeria, Togo, Uganda, and Tanzania consist of prisoners who have not been convicted.

"You Have No Constituency"
When I first came to work at HRW, I found a stack of prison reports written over the past decade from countries around the world. Aside from the constant negotiation required to gain access to facilities, the process of human rights research among prisoners in Africa is fairly straightforward: international prison standards have been established, and flouted, for decades. The true challenge of human rights advocacy in prisons is not proving that African inmates suffer from malnutrition, denial of health care and even torture. Governments often readily admit that many of these problems exist. Persuading anyone to care about prisoners — not to mention convincing them to work together in a coordinated way to achieve both criminal justice and prison reform — is another matter entirely. As I tried to strategize with a colleague recently about involving more European donors in African prisons, he put it bluntly: "You have no constituency." Even with airtight research, it is difficult to convince anyone to consider the problems enough of a priority to effect real change.

Prisoners are an unsympathetic, politically marginalized population — as are former prisoners. Most former prisoners would like to stay as far removed as possible from a horrific experience that threatens to taint their employment prospects, families and reputations despite the value of their potential testimonials. Additionally, organizations working in the struggle for prisoners' rights find it difficult to secure funding, as do reform-oriented prison officials who want to improve conditions. The Open Society Foundation and a few other private donors fund small NGOs working locally across Africa on criminal justice issues, as do several European countries. Although the US has put a limited amount of funding toward prisons, it represents a tiny fraction of overall support. For example, only about 0.1 percent of the US government's HIV funding to Uganda in 2010 was specifically directed toward providing HIV treatment to prisoners.

It is not just that most international donors don't make prisoners their top priority. Many African governments don't prioritize prisoners' rights, either, and sometimes no one is pushing them to do so. Prison officers often pointed out to me the need for increased funding to address poor nutrition, filthy water and overcrowded cells. They welcomed the attention from HRW toward these issues if it might lead to more resources and improved conditions. But on more sensitive topics like forced labor, there were denials and, eventually, tacit acknowledgement and the admission: "They are prisoners." A lack of coordination between prison authorities and criminal justice authorities — along with prison authorities' fundamental inability to control prison population levels— also often stymie their ability to address conditions. Criminal justice reform is a fundamental part of prison reform, but it is also out of the hands of those who actually administer the prisons.

After hundreds of interviews with prisoners in African prisons, one of the stories I think of most often is Hellene's. Hellene wore a long checked dress, which only partially concealed her growing abdomen; she was six months pregnant, although she looked much less. Withdrawn and deeply frightened, Hellene could hardly look at me as she quietly answered my questions.

Hellene was 16 years old and living in rural Uganda when she was gang-raped, leaving her pregnant and HIV-positive. Hellene told me that her rapists also kidnapped a child in her care, but it was she who was arrested soon after for the kidnapping. She had been in prison ever since, but did not even know the exact charges against her. She had received no treatment following her rape and no antiretroviral therapy to prevent the spread of HIV to her baby. Hellene was forced to do backbreaking labor in the prison fields and beaten when she worked too slowly. It could be days, months or even years before she would have a trial. She had no lawyer, and when her trial did come there was little chance she would be prepared for it.

Hearing Hellene's story, and all of the other stories of injustice, abuse, and tragedy day after day is difficult. Prisoners were desperate for any help that I could offer. Yet, as an American lawyer, there was little that I could do to represent them individually. Many needed lawyers just to apply for bail so that they could avoid months and years awaiting trial in life-threatening conditions. Even those who admitted their guilt to me — including crimes of murder or sexual assault — asked me for assistance: not to be released, but to be able to drink clean water, to have enough food or to contact their families.

In one of my first meetings with the HRW communications team to discuss my upcoming report on HIV and TB in Zambian prisons, a veteran gave me a good warning for what the world would soon teach me: "The conditions in African prisons are terrible. People know that. Why is this report interesting?"

Finding new ways to tell old stories is a challenge. In writing about Zambian and Ugandan prisons, I've often focused on the isolation cells and the torture that occurs there. I've written about the brutal beatings and forced labor that resemble slavery. But these are not always the first things that prisoners talk about when I've asked them about how they are treated. Often, the first problem they want to talk about is persistent debilitating hunger, not torture. It is even harder to get the world to pay attention to hungry prisoners than to tortured ones.

Help Is Not Coming Soon
In my reports on prisons in Zambia and Uganda, I outlined short-term policy changes and long-term resource investments that are essential to raising the standard of living in these prisons. I encouraged the governments to achieve quick wins by making changes that require fewer new resources — end beatings, send ill prisoners for medical care — knowing that marshaling resources for broader change can take time.

But broader criminal justice reforms are also necessary to combat prison overcrowding and the negative health consequences of overcrowding. Reducing arbitrary and extended pretrial detention, for example, is a cost-effective criminal justice measure. Reforming bail guidelines, restricting overly broad police authority to detain "co-conspirators," expanding the availability of community service and parole programs, increasing the numbers of judges and improving access to legal representation could help reduce prison populations in a sustained manner. Greater funding is also needed for improved conditions in prisons but, in the absence of criminal justice system reform, funding alone may be ineffective.

There are some bright spots. Prison officers were some of my best sources of information and the strongest advocates for change in prison conditions that also affect them as workers — although sometimes getting that information meant having a drink with prison officers who openly admitted to beating prisoners, or posing for photos with them. In Zambia, for example, international donors have helped the prison authorities to begin a TB testing and treatment pilot program and have also funded HIV prevention and treatment efforts. The Zambia Prisons Service has agreed to ban punishment cells that forced prisoners to stand naked and alone in filthy water for up to a month at a time. Several nongovernmental organizations in Zambia have also begun to offer free legal services, which has led to the release of dozens of prisoners who were unjustly and needlessly incarcerated.

These developments are not game changers, but they are a beginning.

But I am haunted by other places where things have not changed and a realization that, even if I and others try to tell their stories, no one is stepping forward to help many of these prisoners. Take, for example, Muinaina Farm Prison in rural Uganda, where almost two-thirds of the inmates are awaiting trial. Even despite improvements elsewhere in Uganda's criminal justice system, at Muinaina, some prisoners have not set foot in a courtroom in five years. Prisoners plead guilty just so that they will know their release date. On the day that I visited Muinaina, ten prisoners banded together and wrote me a simple handwritten letter. It described years behind bars without trial or contact with the magistrate, endless work and brutal beatings. It concluded: "Sometimes we feel bad. We feel we are invisible prisoners. If we are invisible, tell us. We all beg you. Help us, we'll die."

Unfortunately, my assignment researching prisoner health has ended. I hope that others will pick up where I have left off and continue to fight both for the health of prisoners and for reforms to increase access to bail, community service and parole, so that no one is unjustly and unnecessarily subjected to dangerous prison conditions. But one thing is certain for the prisoners in places like Muinaina: help is not soon coming.

Katherine Todrys works with the Health and Human Rights division at Human Rights Watch, and recently completed three years researching health in African prisons. Before joining Human Rights Watch, Todrys worked at the Millennium Villages Project at Columbia University's Earth Institute, focusing on patients' rights issues in Malawi and Ghana. She holds a J.D. from Yale Law School and an A.B. from Harvard College.

Suggested citation: Katherine Todrys, Invisible Prisoners: The Fight for Human Rights, JURIST - Hotline, Sept. 4, 2012, http://jurist.org/hotline/2012/09/katherine-todrys-invisible-prisoners.php

This article was prepared for publication by the staff of JURIST's professional commentary service. Please direct any questions or comments to them at professionalcommentary@jurist.org

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

Link | how to subscribe | © JURIST

 Monday, August 20, 2012

DOMA Fails Constitutional Muster Under Any Standard of Review
3:08 PM ET

JURIST Guest Columnist Mary L. Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders, says that the Defense of Marriage Act does not serve a legitimate government purpose and must be struck down by the courts...

By the time of John Ferris' death in 2008, he and Herb Burtis had been in a committed relationship for 60 years. Their mutual love of music brought them together as college students in 1948 and in 2004, after a 55-year engagement, they were legally married in their home state of Massachusetts. By then, John was physically disabled by Parkinson's disease, but Herb cared for him and reconfigured their home to keep John there as much as possible as he deteriorated.

Herb's grief at losing his spouse and soul mate of 60 years was compounded by the indignity heaped on him by the Defense of Marriage Act (DOMA). Because of DOMA, Herb's marriage to John was not a marriage for federal law purposes, even though the federal government recognizes all other state determinations of marital status for purposes of federal benefits and burdens. Thus, Herb's application for Social Security survivor benefits was flatly denied. To Herb, DOMA meant that the federal government did not respect his marriage nor his loving 60-year commitment to John.

Now 82, Herb is a plaintiff in Gill v. Office of Personnel Management [PDF], along with two other widowers and seven same-sex couples all legally married in Massachusetts. The US Court of Appeals for the First Circuit, utilizing rational basis review, recently vindicated their equal protection claim in a unanimous ruling, holding that there is no justification for denying federal recognition only to the marriages of same-sex couples. A court employing rational basis review considers whether the challenged law has some rational relationship to a legitimate governmental interest. Judge Michael Boudin, writing for the First Circuit, posited that "Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest." The First Circuit's rational basis analysis was in accord with the three most relevant equal protection cases: USDA v. Moreno, Cleburne v. Cleburne Living Center, Inc. and Romer v. Evans, each of which analyzed the "the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered."

In Moreno, the US Supreme Court scrutinized the "fit" between a new food stamp exclusion for households with unrelated members and the asserted legislative justification when the measure was aimed at an unpopular group — "so-called hippies and hippie communes." As a matter of first principles, equal protection requires legislated distinctions between households to be grounded in some independent considerations in the public interest and that "a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." As the Court opined, even if it were true that unrelated person households were unstable or voluntarily poor, denying assistance was not a rational effort to deal with those concerns. Fraud and voluntary poverty were previously addressed in the law, so the new limitation did not further those asserted interests. Additionally, because the new household limitation could be easily evaded, it rationally could not be considered a legitimate anti-fraud measure.

Next, in Cleburne, the Supreme Court found a city's legislative interests unconvincing where "prejudice and antipathy" and "negative attitudes" were the ultimate reasons why a city had denied a special use permit to a proposed housing facility for mentally disabled persons. Declaring that equal protection is "essentially a direction that all persons similarly situated should be treated alike," and invoking Moreno's caution about legislation directed at unpopular groups, the Court found that each of the substantive objections to the facility could have been raised about other comparable facilities that would be permitted to operate in the area.

Finally, Romer invalidated Colorado's Amendment 2, a constitutional measure invalidating extant non-discrimination protections for gay people and forbidding all legislative, executive or judicial action at any level of state or local government designed to protect gay people based on their sexual orientation. Citing Moreno and Cleburne, Justice Anthony Kennedy's majority opinion noted that the amendment "identifies persons by a single trait and then denies them protection across the board. Wary of classifications "drawn for the purpose of disadvantaging the group burdened by the law," equal protection requires the classification bear a rational relationship to an independent and legitimate legislative end. The "immediate, continuing, and real injuries" inflicted by Amendment 2, the Court ruled, "outrun and belie" the legitimate justifications that were offered for it — conserving resources to fight discrimination against other groups, and protecting the sensibilities of those opposed to homosexuality. The Court concluded "its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests."

While the First Circuit applied rationality review in Gill, both the individual plaintiffs and the Department of Justice (DOJ) argued that DOMA fails under the heightened scrutiny that should be accorded to classifications based on sexual orientation. President Barack Obama and Attorney General Eric Holder concluded in February 2011 that DOMA is unconstitutional under this heightened standard, and accordingly, the DOJ ceased its defense of DOMA.

Gill could be on the Supreme Court's docket this coming term, since two petitions for certiorari are pending. One comes from the Bipartisan Legal Advisory Group (BLAG), a standing body of the US House of Representatives, which has intervened in all DOMA litigation to defend the law's constitutionality. DOJ, which remains a party to the case, filed the second petition on behalf of the federal defendants, urging the Supreme Court to find that sexual orientation classifications merit heightened scrutiny.

Gill is frequently mentioned in the same breath as Perry v. Brown, the case challenging California's Proposition 8, which banned marriage for same-sex couples. Now that the US Court of Appeals for the Ninth Circuit has denied en banc review of its panel decision holding Proposition 8 [PDF] unconstitutional, that case is also expected to draw a petition for Supreme Court review.

While the cases are both about same-sex couples, they litigate dramatically different issues. In Gill, the plaintiffs were lawfully married in their state of residence, so there is no question about access to marriage itself. Instead, the Gill plaintiffs contest the federal government's disparate (and unique) mistreatment of their existing marriages compared to all other marriages.

Conversely, Perry involves the question of access to marriage itself. The Ninth Circuit ruling in Perry found that the unique circumstances applying in California render Proposition 8 unconstitutional. The panel focused on how Proposition 8 took the right of marriage away from same-sex couples who enjoyed it due to a California Supreme Court ruling, and then relegated them to a registered domestic partnership system providing the state benefits and burdens of marriage but not the dignity of marriage itself. This equal protection ruling was narrower than that of the trial judge, who found that denying marriage to same-sex couples violated both federal due process and equal protection guarantees.

Of course, both equal access to marriage and equal treatment of existing marriages are both critically important. Same-sex couples, like others, seek to stand before family and friends and express their love and commitment in marriage. If the Supreme Court denies certiorari in Perry, or affirms the Ninth Circuit decision, then our nation's largest state would become a marriage state. Once couples have made the legal commitment to marry, then, as Obama observed, the federal government should treat those married couples like all others.

There are currently several other challenges to DOMA pending across the country, including Pedersen v. Office of Personnel Management. Ruling in Pedersen on July 31, 2012, Judge Vanessa Bryant of the US District Court for the District of Connecticut became the latest jurist to declare DOMA unconstitutional. Additionally, BLAG filed for certiorari in Massachusetts v. US Department of Health and Human Services, a challenge to DOMA filed by Massachusetts Attorney General Martha Coakley. DOJ also petitioned for certiorari in that case, along with Golinski v. Office of Personnel Management, a challenge currently before the Ninth Circuit. Finally, the plaintiff in Windsor v. US also recently filed a petition for certiorari before judgment.

To date, DOMA has been declared unconstitutional by several district courts and one circuit court. Since it invalidates an act of Congress, one or more of these DOMA rulings appear destined for Supreme Court review in the near future.

Mary L. Bonauto is the Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD). She is leading GLAD's challenge to the constitutionality of DOMA in Gill and Pedersen and was lead counsel in Goodridge v. Department of Public Health, the landmark Massachusetts Supreme Court decision holding that the right of civil marriage must be offered to same-sex couples.

Suggested citation: Mary L. Bonauto, DOMA Fails Constitutional Muster Under Any Standard of Review, JURIST - Hotline, Aug. 20, 2012, http://jurist.org/hotline/2012/08/mary-bonauto-doma-constitutionality.php .

This article was prepared for publication by Stephen Krug, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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 Tuesday, August 14, 2012

States Must Enact Comprehensive Legislation to Protect Homeless
11:08 AM ET

JURIST Guest Columnist Sapphire Jule King of the International Freedom Coalition argues that states need to enact comprehensive legislation to protect the homeless...

Rhode Island's Homeless Bill of Rights, the first in the nation, makes history by protecting individuals and families experiencing homelessness from discrimination. However, the landmark legislation [PDF] fails to protect these vulnerable citizens from the twin evils of discrimination and shelter abuse as it was originally intended.

In 2010, I first drafted and began lobbying Rhode Island advocates, community leaders, and elected officials to support a comprehensive Homeless Bill of Rights. The vision for the bill came as a direct result of a critical, ethnographic study [PDF] of the Providence homeless provider system conducted by my nonprofit organization, the International Freedom Coalition. As principal investigator, I covertly lived as a woman experiencing homelessness for seven months.

Surprisingly, I observed and was subjected to abuse by shelter staff and security personnel that met Rhode Island's definition under § 23-17.8-1 of its general laws. Moreover, I endured and watched other residents battle and oftentimes bow to the harassment, intimidation, and bullying by security personnel as defined in the state's laws governing domestic abuse (§ 15-15-1) and bullying on school campuses (§ 16-21-26). Although the definition in § 16-21-26 has since been repealed, anti-bullying laws in the remaining 49 states resemble Rhode Island's original definition, wholly or in part.

Further, I gained an insider's view of wasteful and potentially fraudulent practices by shelter staff as well as discrimination by the shelter's housing locator, external housing agencies, and potential employers. Members of the general community were aware of the abuses taking place. Yet advocacy groups, community leaders and even legislators concerned about homeless issues primarily focused on obtaining more funds for shelter beds or long-term affordable housing.

In my preparatory legal research for writing the bill, I was astounded by the body of existing federal and state laws throughout the country that protect people from verbal, mental and emotional abuse, harassment, intimidation, bullying and discrimination at home, the workplace, schools, nursing homes, mental health institutions, long term care facilities and in society in general — all forms of maltreatment exacted against a person experiencing homelessness in our study. In Louisiana, it is even illegal to harass or taunt anyone riding a bicycle.

Rhode Island — along with Alaska, Florida, Maryland, Puerto Rico, and Washington, DC — passed hate crimes legislation within the past few years to protect people experiencing homelessness from violence in the community. Cleveland and Seattle passed ordinances prohibiting the harassment and intimidation of homeless individuals. The Illinois House of Representatives passed a primarily anti-discrimination Bill of Rights for the Homeless. However, none of these legislative efforts specifically address the maltreatment perpetrated by shelter staff against citizens once they exit the general community and walk through those shelter doors.

The truth became undoubtedly clear: any citizen in the US enjoys a legal shield against maltreatment and discrimination as long as he or she is not homeless or residing in a homeless shelter. For blue collar workers, middle class families and white collar professionals who find themselves displaced due to unemployment, foreclosure, economic hardship or any other reason, these protections suddenly no longer apply to them. Members of society, by their own actions, have banished these ordinary people in a vulnerable situation to an oppressed class that need extra protections.

Thus, the rights presented in our original 25-point bill inherently include safeguards against fraud and waste while specifically addressing the potential for abuse and discrimination. To move our concept of a homeless bill of rights from a frivolous, feel-good act to legitimate and enforceable legislation, I wrote or selected each element based upon text from existing federal and state laws — specifically the 2004 Illinois bill of rights — and my own language using my research experiences and observations as a guide.

Our side-by-side comparison chart [PDF] summarizes the rights in our proposed bill, the legal and research bases for each and a direct comparison of Rhode Island's new law to our original proposal.

The following three rights enumerated in our proposed bill to Rhode Island advocates prove to be the most critical for preserving the safety, dignity and equality of people when they experience homelessness.

Right 1. "The right to receive safe, appropriate, courteous, and high quality care, shelter, and services in a timely manner with consideration, dignity, respect, and equality by all."

The investigational data reported in our study's compliance audit of a Providence, Rhode Island shelter found that the service provider operated at a substandard level related to their own safety, security and staff-resident interaction guidelines. This measure, along with Right (2), would make dignified treatment compulsory rather than optional.

Laws requiring staff and administrators to create a safe, respectful environment for individuals in a vulnerable living arrangement already exist and are enforced. In fact, the language in Rhode Island's Home Care Patient Rights (§ 23-17.16-2) is nearly identical to ours, except for the addition of the words "courteous" and "shelter." The Rights of Nursing Home Patients (§ 23-17.5-2) in the state's Licensing of Health Care Facilities code also ensures that "each patient shall be treated and cared for with consideration, respect, and dignity[.]"

These laws, similar to related legislation in other states, echo the overarching Quality of Life and Resident Rights guaranteed and enforced by the Code of Federal Regulations governing nursing homes and long term care facilities. Pursuant to 42 C.F.R. § 483.10: "[T]he resident has a right to a dignified existence [and] self-determination... A facility must protect and promote the rights of each resident." Additionally, 42 C.F.R. § 483.15 on quality of life requires that "the facility must promote care for residents in a manner and in an environment that maintains or enhances each resident's dignity and respect in full recognition of his or her individuality."

Rhode Island's Homeless Bill of Rights makes no quality of service or quality of care provisions requiring dignified treatment.

Right 4. "The right to be free from discrimination on the basis of... housing status or perceived housing status by public and private entities, shelters, service providers and their staff or other clients or residents."

Two examples from our study involving the federally-funded Homelessness Prevention and Rapid Re-Housing (HPRP) program embody the most blatant discrimination perpetrated by not only a private rental agency but also the shelter's HPRP housing locator. In essence, both parties denied participants their right to move into self-selected apartments that were clean, of better quality, located in better neighborhoods and within the agreed upon rental range.

The Civil Rights Act of 1964 ended the preposterous practices of segregation and "separate but equal" treatment of individuals based upon certain fundamental characteristics that others may find personally displeasing. Fortunately, all seven of the rights in Rhode Island's new law do address discrimination — particularly in housing, public spaces, and employment as detailed under Rights (4), (14) and (25) of our proposal.

Right 5. "The right to be free from threats or coercion; mental, emotional, verbal, or physical abuse; harassment, intimidation or bullying; stalking or cyberstalking; physical punishment; damage to or theft of property; or exploitation of any kind by public and private entities, shelters, service providers and their staff, or other clients or residents."

The program guidelines for the shelter in our study states: "We expect guests and staff to interact with each other in a non-violent and non-threatening manner. The safety of each guest is important, therefore no abusive language, threats, or the use of intimidation is allowed."

However, staff willfully and repeatedly violated this policy as a course of conduct.

Federal regulations for long term care facilities in 42 C.F.R. § 483.13 mandate that "the resident has the right to be free from verbal... and mental abuse." Likewise, both Rhode Island's Home Care Patient Rights and Rights of Nursing Home Patients reaffirm that "patients shall not be subject to mental and physical abuse[.]"

Under Rhode Island's definition, "abuse" is broadly defined as:

"[I]ntentionally engaging in a pattern of harassing conduct which causes or is likely to cause emotional or psychological harm to the patient or resident, including but not limited to, ridiculing or demeaning ..., making derogatory remarks... or cursing..., or threatening to inflict physical or emotional harm on a patient or resident."
These federal and state regulations further codify enforcement, reporting, quality assurance and compliance mechanisms. For example, 42 C.F.R. § 483.13 stipulates that "the facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents[.]"

Furthermore, Rhode Island's anti-bullying, domestic abuse and workplace violence protection (§ 28-52-2) laws prohibit harassment and emotional harm in other everyday settings. The remaining states also have similar laws. Nonetheless, the new legislation makes no such provisions.

In all, Rhode Island's adaption of our proposed Homeless Bill of Rights only, wholly or in part, satisfies seven of the 25 measures. All were anti-discrimination. I certainly applaud the advocates and legislators for listening, seeing value in my proposal and deciding on a subset of provisions to start with as I was advised by the Rhode Island Commission for Human Rights. Nonetheless, the anti-abuse protections that were ultimately excluded still leave thousands of individuals and families exposed to harm.

Critics of the new law discard it as mere feel-good legislation since existing federal and state laws already offer these protections to everyone, especially those in vulnerable situations. In a sense, they are correct. This law — and hopefully one that ultimately prohibits abuse as well — will make people experiencing homelessness feel much better once other members of society can no longer elect to treat them differently.

The question now is: which state will make true history by enacting an anti-abuse and anti-discrimination law that comprehensively protects everyday citizens when they find themselves unable to maintain a place to call home?

Sapphire Jule King is the CEO of King Triune Group and the founder and president of the International Freedom Coalition — a nonprofit organization dedicated to building strong families and eradicating child abuse worldwide.

Suggested citation: Sapphire Jule King, States Need to Enact Comprehensive Legislation to Protect Homeless, JURIST - Hotline, Aug. 14, 2012, http://jurist.org/hotline/2012/08/sapphire-king-homeless-legislation.php.

This article was prepared for publication by Sean Gallagher, the head of JURIST's Professional Commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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 Saturday, August 11, 2012

Guilty of Adulthood Until Proven a Child
9:08 AM ET

JURIST Guest Columnist Alice Farmer, a Children's Rights Researcher at Human Rights Watch, says that in many cases of asylum, children are presumed to be adults and are detained as such in countries such as Malta...

A typical child wants to be seen as an adult. Unfortunately, some children who seek asylum in the European Union (EU) through the tiny island nation of Malta find themselves with the opposite problem: needing to prove they are children. Children who arrive without an adult caregiver, all too often following a perilous sea journey, may find themselves detained and treated as adults until administrative proceedings show otherwise. Often detained with actual adults, these children have no access to education or other necessary services.

I have spent months investigating what happens to children who arrive in Malta, the Mediterranean country south of Italy, which often serves unintentionally as a gateway to the EU. Malta presumes that anyone who is not visibly a child, meaning anyone who looks older than about 12, is an adult. Migrants claiming to be children must go through a prolonged age determination process and are locked up in an adult jail for weeks or months while the proceedings unfold.

In March 2012, while in Malta, I met Stéphane K., an orphan who left Cote d'Ivoire when he was sixteen and traveled north by himself. Stéphane made his way overland to Libya and onto a smuggler's boat for the treacherous Mediterranean crossing. When he reached Malta, without papers to prove his age, Maltese authorities took him straight to detention.

Stéphane spent seven months detained in an adult facility, waiting for the Maltese authorities to process his claim that he was a child. "For someone at 17 to be in detention, it's not normal," he said. "Shut in, I can't go out ... I was detained with sub-Saharan Africans, mostly west Africans, and one Egyptian. We were all in one room, with 200-300 people. My problem was the freedom."

According to best estimates, about 12,000 unaccompanied migrant children enter the EU each year, about 60 or 70 of who come through Malta. Unaccompanied migrant children typically leave conflict-ridden countries like Afghanistan and Somalia, often after the loss of one or both parents. When they arrive in the EU they face the laborious process of proving their childhood in the first country they reach, such as Malta or Greece. Virtually all of these children travel without birth certificates or passports — documents they may never have been able to obtain in their home countries.

Many EU countries that receive high numbers of unaccompanied migrant children have instituted age determination proceedings. But the practices vary greatly. There are no clear-cut medical tests that can pinpoint a child's age accurately, an issue exacerbated by the lack of proper nutrition in many children's countries of origin. Best practices suggest relying on multi-disciplinary assessments from professionals such as psychologists, social workers and pediatricians to gauge a child's age.

Even if medical tests can't provide clear-cut answers, our legal standards can. The UN Children's Fund (UNICEF), the Office of the UN High Commissioner for Refugees (UNHCR) and Save the Children all endorse standards stating that migrants who enter age determination proceedings should be presumed children until shown otherwise. Especially since Malta's age determination process can take weeks or months, children end up imprisoned as and with adults. Among the children I interviewed who had been detained between 2008 and 2012, the average time in detention was 3.4 months. Stéphane was detained for 7 months.

Making the presumption of age default to adult has a significant impact on child welfare. In detention facilities, children may be exposed to periodic violence and those I interviewed in Malta related instances of exploitation. Abdi M., a Somali boy who was 17 when he was detained, told me: "Every day a big man from Mali came and said, 'Give me your food.' And one day I said no, and he hit me. I was out on the floor [unconscious] for half an hour. I told the soldiers but they said, 'We don't care.' No one helped me, I just cried and went to sleep."

Children detained for prolonged periods can miss out on school and suffer mental illness. Respected medical journals have reported [PDF] that lengthy immigration detention correlates with higher rates of post-traumatic stress disorder, anxiety and depression. Detention also exacerbates pre-existing symptoms, including mental trauma sustained while fleeing torture or persecution. Children and young people who are detained for extended periods are likely to experience feelings of isolation and detachment.

In one detention facility, I met Kelile T., an Ethiopian boy who said he was 17 when he arrived in Malta. He was detained for nine months, then hospitalized for 15 days for mental health treatment, but then returned to detention. He described his experience: "I take medicine now, for sleep. No medicine, I can't sleep ... my mind is no good, it is very hard ... I can't, I can't ... this is a hard place. I need a free place."

Kelile, Stéphane, Abdi and migrant children like them should be presumed to be children and treated as such. Treating them as adults until the end of long administrative proceedings imposes far too high a cost.

Alice Farmer is a children's rights researcher for Human Rights Watch based in Geneva and author of a new report, "Boat Ride to Detention: Adult and Child Migrants in Malta."

Suggested citation: Alice Farmer, Guilty Until Proven Innocent: Asylum Seeking Children, JURIST - Hotline, Aug. 11, 2012, http://jurist.org/hotline/2012/08/alice-farmer-malta-children.php.

This article was prepared for publication by Leah Kathryn Sell, an associate editor of JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org.

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

Link | how to subscribe | © JURIST

 Friday, August 10, 2012

Unchecked Power Granted by House Bill 87
1:08 AM ET

JURIST Guest Columnist Azadeh Shahshahani National Security/Immigrant Rights' Project Director of the American Civil Liberties Union of Georgia says that the unchecked power of the Immigration Enforcement Review Board set up by House Bill 87 is cause for great concern ...

Last week, the American Civil Liberties Union Foundation of Georgia (ACLUGA) was joined by more than a dozen organizations in issuing a letter [PDF] to Immigration Enforcement Review Board (the Board) Chairman Benjamin J. Vinson, laying out concerns with how the Board may apply the powers granted to it in the case of Michael Dale Smith v. City of Vidalia.

The Board was set up by the Illegal Immigration Reform and Enforcement Act, commonly known as House Bill 87 (HB 87), to investigate complaints against public agencies or employees pertaining to violations of or failure to "properly enforce" provisions of HB 87 among other Georgia laws and to impose penalties, including $1,000-$5,000 fines and loss of state funding.

There are serious concerns about the extent of the powers granted to the Board. For one thing, there is no clear and objective standard for the issuance of subpoenas within the Board's rules, or any clear processes for appealing the issuance of a subpoena or obtaining a remedy for an inappropriately issued subpoena. The ability of the Board — a non-judicial, non-elected body — to compel attendance and testimony based solely on the request of a private citizen under the unclear standard of "good cause shown" allows for personal agendas to result in subpoenas.

The Board's rules [PDF] also set it apart from the time-tested system of governmental checks and balances. There is no mechanism for reviewing the Board's final determinations to strip funding from public entities or levy fines against individuals and employers. This potential application of the Board's unchecked power is particularly concerning in the instant case.

On June 29, 2012, the Board conducted a meeting in part to discuss a complaint Smith reportedly filed with the Board on March 5, 2012, alleging that Vidalia was a "sanctuary city." Smith requested that the Board review and enforce the anti-sanctuary law enacted in 2009 against Vidalia's alleged "catch-and-release" immigration policies. Smith has alleged that businesses in Vidalia are acting in conjunction with the city to provide sanctuary to the undocumented immigrant workforce. He has alleged that catch-and-release incidents have occurred from 2006 until the present and he specifically mentioned the private company Lark Industries as an alleged offender. Counsel for the city of Vidalia has reportedly responded to a letter from the Board denying it is a sanctuary city and stating that it has never adopted or enforced any sanctuary policies.

Despite concerns expressed by members of the Board, it unanimously voted to create the Vidalia review panel to complete a preliminary investigation.

As the ACLUGA emphasized in our letter, despite Smith's allegations concerning Lark Industries and other businesses within the city of Vidalia, any investigation this review panel conducts must be restricted to public entities. The ACLUGA also requested an explanation as to what authority the review panel possesses to investigate alleged violations of Georgia immigration laws that are said to have occurred before the creation of the Board. Additionally, we have also sought clarification regarding what authority the Board possesses to potentially issue sanctions for violations that are found to have occurred prior to the Board's creation.

The ACLUGA also questioned why a review panel was created to investigate Smith's accusations against Vidalia in the first place when Board members have described his complaint as "vague" and lacking in important specific details such as names, dates and locations. We asked for clarification as to how Smith's complaint actually met the prima facie standard that the Board's rules require before a complaint may be considered by the Board.

Following Vidalia's denial as to the existence of city sanctuary policies, Vinson again contacted Smith and asked him to produce any other documentation of a sanctuary policy. Smith's reply, in Vinson's words, was to "essentially [ask] us to investigate and find it." Smith is in effect requesting that the Board procure the evidence that would prove his accusations correct.

If Smith's nameless, dateless and location-free complaint is considered by the Board to have constituted the "sufficient facts" necessary to establish a prima facie threshold, then the said standard of consideration leaves the Board's complaint process ripe for abuse and misuse by any persons who desire to accuse public agencies and employees as they please without fulfilling any burden of proof. To attain the attention and public-funded resources of a body such as the Board, a complainant must do more than merely accuse without greater specificity.

It is of great concern that, following the Smith decision, the Board has authorized its complaint process to amount to what is essentially a fishing expedition. It must immediately stop spending public resources on this unnecessary and wasteful venture. The governor and the legislature must also establish checks and balances for this body — otherwise we are likely to see abuses of power committed at public's expense.

Azadeh Shahshahani focuses her work on Georgia's compliance with international human rights and constitutional standards. Recently, she was elected President of the National Lawyers Guild and is one of the Founders of Human Rights Atlanta.

Suggested citation: Azadeh Shahshahani, Unchecked Power Granted by House Bill 87, JURIST - Hotline, Aug. 10, 2012, http://jurist.org/hotline/2012/08/azadeh-shahshahani-hb87-immigration.php.

This article was prepared for publication by Leah Kathryn Sell, an associate editor of JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org.

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

Link | how to subscribe | © JURIST

 Monday, August 06, 2012

National Cooperation Key to International Judicial Success
12:08 PM ET

JURIST Guest Columnist Niccolò Pons, Assistant Legal Officer of the Pre-Trial Chambers of the International Criminal Court, says that cooperation from national authorities is an essential and proven element to the success of international judicial bodies...

The contemporary system of international judicial cooperation in criminal matters has evolved from the classic horizontal axis between states to include an additional vertical axis, which connect states with international jurisdictions. This vertical axis is particularly important in the prosecution of international crimes such as war crimes, crimes against humanity and the crime of genocide. These crimes are often adjudicated by international courts and tribunals, whether backed by the UN through the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR) or supported through international treaties — as is the case with the International Criminal Court (ICC) and the Rome Statute. Since these international judicial bodies do not have at their disposal an enforcement agency to implement their orders, they rely on national authorities to execute requests for cooperation including arrests and the surrender of suspects.

Given that such international crimes are mostly committed during armed conflicts or situations of serious internal disturbances, a number of persons who might be involved in the commission of atrocities flee the forum commissi delicti (the place where the crime has been committed) to seek shelter abroad by claiming refugee or asylum status. This diaspora makes extradition requests the only way to obtain the presence of suspects before the national courts that have jurisdiction.

In the past few years, the US has made remarkable efforts to locate and extradite alleged human rights violators to requesting states all over the world. An example of how this cooperation machinery between states and international tribunals works is the recent extradition of a US resident, Dejan Radojkovic, to Bosnia and Herzegovina. The US prosecutor sought his expulsion from the US on the basis of his involvement in rounding up some 200 Bosnian-Muslim men in the Konjevic Polje region in July 1995 and transferring them to locations where they were executed. Radojkovic did not disclose his past as a commander of the Special Police Brigade in the Srebrenica area during his entry into American territory in 1999. An investigation carried out by the US authorities in coordination with the Office of the Prosecutor of the ICTY and the Court of Bosnia and Herzegovina linked Radojkovic to the occurrences in Srebrenica in summer 1995. In his order, upheld on appeal, the US immigration judge found that Radojkovic "ordered...and/or otherwise participated in extrajudicial killing" and decided for his removal from the US, which took place on May 24, 2012. According to the relevant section of the US Code, an alien who, outside the US, has committed, ordered, incited, assisted or otherwise participated in the commission of acts of torture or extrajudicial killings is deportable from a US territory.

Crucially, extraditing an individual suspected of criminal offences is not a finding or a predetermination of the guilt of such person for the crimes charged by a foreign court. The latter is to be assessed after a criminal proceeding. Instead, a removal order is the mere assessment — based on the evidence adduced by the prosecutor of the requested state — that grounds for inadmissibility of the person on the territory of the state of residence exist and that these grounds rest on the suspicion that the person might have committed offences abroad. Thus, the individual loses his entitlement to lawfully reside in the territory of the requested state and is extradited to a competent jurisdiction to respond to the allegations against him. The importance of the distinction between extradition procedures and criminal proceedings is decisive to preserve one of the fundamental principles of criminal law and one of the basic rights of the accused: the right to be presumed innocent until found guilty by a court of law.

In this regard, what happened in a removal case strictly linked to Radojkovic is instructive. On January 19, 2010, Radojkovic's superior, Nedjo Ikonic, was also found to have illegally obtained US residence and was transferred to Bosnia and Herzegovina on grounds similar to Radojkovic. The case against Ikonic was joined with an existing proceeding against three others accused of similar crimes appearing before a Bosnian court. These proceedings resulted in the conviction of two defendants and the acquittal of the other two, including Ikonic. Notwithstanding the result of the trial, evidence used in the proceeding before the ICTY indicates [PDF] that the unit led by Ikonic helped secure the road to and from Srebrenica between July 12 and July 13, 1995, in order to separate Muslim male civilians from women and children — with the males being designated to be executed.

Since its creation, the ICTY has investigated and collected evidence against several persons suspected of being responsible for international crimes committed during the wars in the former Yugoslavia. However, since its inception in May 1993, the ICTY has given priority to the prosecution of those believed to be the most responsible for violations of international law during armed conflicts in the former Yugoslavia. As a result, the judges of the ICTY adopted Rule 11 bis in 1997, which allows a specially constituted bench to refer to national courts cases in which indictments have already been confirmed by the ICTY but a trial has not yet. Such referrals may take place regardless of whether the person is actually under ICTY custody [PDF]. The three judge bench must determine whether the case under consideration should be referred to the authorities of the state: (i) in which the crime was committed; (ii) in which the accused arrested; or (iii) which has jurisdiction and is willing and adequately prepared to accept such a case.

A total of 8 cases involving 13 indictees have been transferred by the referral bench of the ICTY to courts of the national courts of the former Yugoslavia, most notably in Bosnia and Herzegovina. These persons are prosecuted in accordance with the law of the state to which the case is referred.

The system established by the international community to address the serious violations of international humanitarian law and human rights committed in the former Yugoslavia represents the first attempt to comprehensively tackle the issue of impunity in situations of large-scale, protracted and inter-ethnic armed conflicts. A UN-backed tribunal has been established to try the senior leadership that masterminded atrocities against civilians and protected those responsible under the law of armed conflicts. Cooperatively, the authorities of states where these atrocities were perpetrated have strengthened their judicial capabilities and sought the extradition of suspected war criminals abroad. This represents a successful model for an effective fight against serious violations of human rights.

Niccolò Pons is currently an Assistant Legal Officer in Pre-Trial Division, Chambers of the International Criminal Court. He is a former Legal Consultant in a Trial Chamber of the International Criminal Court. Previously, he worked in the Chambers of the Special Tribunal for Lebanon and has written on the challenges of in absentia proceedings. The views expressed herein are those of the author alone and do not necessarily reflect the views of the International Criminal Court or the Special Tribunal for Lebanon.

Suggested citation: Niccolò Pons, National Cooperation Key to International Judicial Success, JURIST - Hotline, Aug. 6, 2012, http://jurist.org/hotline/2012/08/niccolo-pons-icc-cooperation.php.

This article was prepared for publication by Leah Kathryn Sell, an associate editor of JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org.

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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 Friday, August 03, 2012

Chinese Government's Oppressive Policies Draw Ire from the Public
11:08 AM ET

JURIST Guest Columnist Phelim Kine, Senior Researcher of the Asia Division at Human Rights Watch, says that the increasing public challenges to the Chinese government's authority will only continue until its policies reflect a basic respect for human rights and the right of the citizenry to publicly dissent...

The challenges currently facing the Chinese government include more than the rising tensions in the South China Sea and the murder charges against an ousted Politburo member's wife. The current challenges speak to the very manner in which the Communist Party of China (CPC) treats longtime dissidents, students and increasingly broad cross-sections of society. So far, the activists that have been the most effective at raising their concerns have predictably received the harshest treatment from the government.
On July 27, 2012, a Beijing court rejected human rights defender Ni Yulan's appeal of her spurious April 10, 2012, "disturbance" conviction. While the court tossed out equally spurious "fraud" charges, which reduced her 32-month prison sentence by two months, Ni, who is disabled and reportedly malnourished, will remain imprisoned until late 2014. The original sentence prompted US Ambassador to China Gary Locke to express concern, "particularly in light of the past abuses she has suffered."
Additionally, on July 20, 2012, a Beijing court rejected activist-artist Ai Weiwei's appeal of the $2.4 million tax bill that was imposed by Beijing municipal tax authorities in the aftermath of his 81-day enforced disappearance by Chinese security forces in early 2011. Ai says the tax bill is a politically motivated punishment for his outspoken criticism of the Chinese government.
Finally, on July 6, 2012, Li Wangyang, a longtime critic of the Chinese government's official cover-up of the June 1989 massacre, died in the hospital while under police guard. A police investigation determined that Li had committed suicide, but a coalition of Hong Kong and mainland Chinese lawyers have criticized that conclusion and now demand a fresh probe into Li's death.
The May 10, 2012, arrival in the US of human rights activist Chen Guangcheng and his family was cheered by those familiar with the years of abuse he suffered at the hands of the Chinese government. However, the blind activist's choice to temporarily leave China to study in the US underscored the dangers that the Chinese government's low tolerance for dissent poses to people like Chen. With Chen's nephew, Chen Kegui, facing attempted murder charges after he attempted to defend himself and his family from an attack on his home by armed men, Chen's torments are far from over.
Despite the Chinese government's reflex tendency to silence high-profile advocates of peaceful dissent, the Chinese people have not remained silent. In fact, acts of public defiance by an increasingly rights-conscious citizenry appear to be occurring more frequently. While politicized court proceedings continued against Ai Weiwei and Ni Yulan, thousands of residents of Shifang, a city located in the Sichuan province, took to the streets to protest potential environmental health effects from a planned heavy metals refinery. The protests, which were unique in that they involved large numbers of students — a rare phenomenon since the protests which culminated in the June 1989 massacre — eventually yielded an official promise to shelve the planned project.
Shifang's citizens are not alone in challenging the government.  A Chinese academic estimated that there are up to 500 daily "mass incidents," the official term for public protests. Those demonstrations, which can consist of fewer than a dozen to thousands of protesters, focus on grievances ranging from official corruption and abuse of government power to growing environmental health concerns. Although the Chinese government blocks its citizens' access to Facebook, Twitter and YouTube, domestic social media networks such as Weibo are proving indispensable in helping to inform and catalyze Chinese citizens about alleged official malfeasance.
China's growing numbers of rights-savvy, assertive citizens and the protests they organize have clearly spooked the government. The Chinese government this year reportedly allocated $111 billion for "social stability maintenance," its Orwellian term for the domestic security apparatus, which represents a 12 percent increase over 2011. Those funds provide the ruling CPC with massive human, financial and technological resources to surveil individuals, to censor the media and to bribe, bully or bludgeon perceived threats to their 62-year monopoly on power.
However, even elements of China's government recognize that such methods of maintaining its avowed goals of "social stability" and "harmony" are failing and counterproductive. A July 19, 2012 editorial in the CPC's newspaper People's Daily criticized the government's spending on "stability maintenance" as "palliative and shortsighted" and urged the government to address "deep-rooted reasons for the incidents of instability." 
That is the Chinese government's dilemma.
Addressing the root causes of growing popular protests in China will require meaningful change in how the country is governed — which will inevitably undermine the CPC's grip on power. What China needs is real rule of law and a functioning legal system free from government coercion so that social conflicts can be resolved without mass street protests. Street protests powered by rumors of tainted food or industrial toxins will continue until the Chinese government ends its pervasive censorship regime and allows prompt and accurate reporting on issues of public health and safety. Likewise, protests related to the exploitation and abuse of China's 220 million migrant workers will not stop until the Chinese government abolishes the discriminatory household registration system — hukou — that denies them state-sponsored access to medical care and education for their children.
Lifting restrictions on universal rights and freedoms already enshrined in China's laws and constitution will loosen the chokehold of the CPC on society and open it up to public challenges to its legitimacy. A fairer and more just society of informed citizens able to express their discontent and challenge the status quo poses a palpable threat to how the CPC has ruled for the past six decades.
However, until the Chinese government recognizes that the cost-benefit analysis of the status quo does not favor even the CPC's self-serving conceptions of "stability" and "harmony," Chinese dissidents — whether they be high-profile individuals such as Ni Yulan, Chen Guangcheng and Ai Weiwei or the crowds of unknown protesters — will continue to mount a growing challenge to the Chinese government and its abusive standard operating procedure.

Phelim Kine is the Senior Researcher of the Asia Division at Human Rights Watch. He has written on human rights, military impunity, corruption, child sex tourism, human trafficking and illegal land confiscation. Kine's opinion pieces on China's human rights challenges have appeared in a wide range of media outlets, and he has spoken on such issues before the European Parliament, the Council on Foreign Relations and the US-China Economic and Security Review Commission. His Twitter feed is @PhelimKine.

Suggested citation: Phelim Kine, Chinese Government's Oppressive Policies Draw Ire from the Public, JURIST - Hotline, August 3, 2012, http://jurist.org/hotline/2012/07/phelim-kine-china-nhrap.php.

This article was prepared for publication by Stephen Krug, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

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 Thursday, July 26, 2012

California's Journey Towards Marriage Equality
10:07 AM ET

JURIST Guest Columnist Angela Perone, Staff Attorney for the National Center for Lesbian Rights, argues that there has been a drastic change in public opinion in favor of same-sex marriage and that courts are more willing to recognize marriage equality for all couples...

In just a few short years, the landscape for marriage equality has dramatically changed. From California's first ballot initiative to prohibit marriage equality in March 2000 to the Ninth Circuit's decision to restore marriage equality in 2012, rights for same-sex couples have traveled a great distance. Through this tumultuous journey for equality, same-sex couples have shaped the hearts and minds of California voters and judges and proved that they deserve the same fundamental right to marry as opposite-sex couples. While the journey may continue to the US Supreme Court, same-sex couples remain determined to continue the fight until they are granted full equality.

In March 2000, California voters approved Proposition 22 by a vote of approximately 62 percent to 38 percent to define marriage between a man and a woman in California's Family Code. Four years later, San Francisco Mayor Gavin Newsom challenged this statute by directing San Francisco officials to issue marriage licenses to same-sex couples beginning on February 12, 2004.

Opponents of marriage equality immediately challenged his actions and on August 12, 2004, the California Supreme Court held that the marriage licenses were invalid and ordered San Francisco to enforce its existing marriage statute in Lockyer v. City & County of San Francisco. By that time, however, several same-sex couples and the San Francisco City Attorney had already brought actions challenging the constitutionality of California's ban on marriage for same-sex couples. On May 15, 2008, the California Supreme Court ruled [PDF] that such discriminatory laws violated the California Constitution and permitted same-sex couples to marry again beginning on June 17, 2008.

This important victory for marriage equality encountered a heartbreaking defeat when California voters passed Proposition 8 [PDF] on November 4, 2008, amending the California Constitution to state that only marriage between a man and a woman is valid in California. Proposition 8 passed by a narrow margin of approximately 52 percent to 48 percent. While same-sex couples lamented the constitutional deprivations enshrined in the passage of Proposition 8, its narrow victory signaled a change in public opinion about marriage equality. The gap of approximately 24 points had dwindled to a mere four points in under a decade. While this stark contrast can be attributed to several factors, it is undeniable that public opinion was undergoing a significant change.

Still, the small margin of defeat presented little consolation for the thousands of same-sex couples denied marriage equality. Several couples filed actions arguing that Proposition 8 violated the California Constitution because it was a constitutional revision that fundamentally altered California's constitutional scheme and could only be proposed by a constitutional convention, not by a ballot initiative. The California Supreme Court rejected this argument in Strauss v. Horton, but affirmed the validity of the marriages performed between June 16, 2008 and November 4, 2008.

A few days before the California Supreme Court issued their decision in Strauss, several same-sex couples filed a federal action in the US District Court for the Northern District of California challenging the constitutionality of Proposition 8 under the US Constitution in Perry v. Schwarzenegger. The district court ruled Proposition 8 unconstitutional after a lengthy trial addressing a variety of issues including whether homosexuality diminishes one's contribution to society, affects one's ability to raise children, impairs judgment, or constitutes a mental disorder. The trial also exposed the deceptive tactics used in the campaign to pass Proposition 8, including advertisements that played on long-standing false stereotypes of gay and lesbian people as a threat to children.

On February 7, 2012, a three-judge panel for the US Court of Appeals for the Ninth Circuit affirmed the decision of the district court in a 2-1 decision written by Judge Stephen Reinhardt and joined by Judge Michael Daly Hawkins. The decision invalidated Proposition 8 on narrow grounds that centered around the unique circumstances surrounding Proposition 8. The court stated that: "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."

On June 5, 2012, the Ninth Circuit ruled that it would not reconsider the three-judge panel's decision striking down Proposition 8. Supporters of Proposition 8 will likely seek review of the case from the US Supreme Court. Review is not automatic, and it is unlikely that the Supreme Court would decide whether to take the case until October 2012 at the earliest. If the Court refuses to hear the case, the Ninth Circuit's decision will become final. However, if the Court decides to hear the case, it would likely issue a decision by the end of June 2013. Until the Supreme Court either rejects the opportunity to review the case or issues its decision in 2013, same-sex couples must continue to wait to get married in California.

While the debate around Proposition 8 continues, the Supreme Court is unlikely to review the decision in Perry v. Brown if it applies the factors it traditionally uses when deciding to hear a case. No other federal court has considered a marriage case that involves the unique circumstances that prompted the passage of Proposition 8, so the Ninth Circuit's decision is not in conflict with other federal appeals court decisions. Moreover, the ruling does not affect states other than California, so the Supreme Court does not need to step-in to preserve a uniform national rule.

Nevertheless, if the Supreme Court decides to hear the Perry case, same-sex couples have many supporters, including labor unions like AFL-CIO, Service Employees International Union (SEIU) and the National Education Association (NEA). Organizations like the Mexican American Legal Defense and Education Fund (MALDEF), the National Association for the Advancement of Colored People (NAACP), the National Council of La Raza (NCLR), the Southern Poverty Law Center (SPLC), and the Interfaith Alliance have all issued statements supporting marriage equality.

On May 9, 2012, President Barack Obama became the first sitting president to express support for marriage equality, despite expressing a contrary position during his campaign. Obama's support reflects a changing view in the national psyche about marriage equality as reflected by recent public opinion polls showing growing support for marriage equality. NBC News and the Wall Street Journal conducted a public opinion poll from February 29 to March 3 demonstrating that 49 percent of adults support marriage equality whereas 40 percent oppose it. A June 6, 2012 public opinion poll by CNN showed that approximately 54 percent of Americans support marriage equality versus 42 percent who disapprove of legalizing marriage for same-sex couples. A 2012 Field Poll confirmed that in California public opinion was changing too, as 59 percent of the state's voters support marriage equality versus 34 percent who oppose it.

As the journey towards marriage equality continues, its long road highlights the significant gains for same-sex couples. Currently, Connecticut, Iowa, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington, the District of Columbia and two tribal nations (the Coquille Indian Tribe and the Suquamish Tribe) recognize marriage between same-sex couples. Public opinion polls suggest that the momentum for equality is only getting stronger. While the path to marriage equality may necessarily differ for each state, California's decade-long journey illustrates just how quickly the hearts and minds of voters and judges can change to recognize marriage equality for all couples regardless of sexual orientation.

Angela Perone is a Staff Attorney at the National Center for Lesbian Rights. She earned her B.A. from the University of Illinois with concentrations in Woman's Studies, Afro-American Studies and Political Science. Ms. Perone earned her J.D. from the UC Hastings College of Law and has served as an advocate and litigator on issues of sex discrimination in education and employment. She currently serves on the San Francisco Human Rights Commission's on LGBT Advisory Committee.

Suggested citation: Angela Perone, California's Journey Towards Marriage Equality, JURIST - Hotline, July 26, 2012, http://jurist.org/hotline/2012/07/angela-perone-california-marriage.php.

This article was prepared for publication by Jordan Barry, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh.

Link | how to subscribe | © JURIST


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