 Wednesday, April 30, 2008
|
Restoring Pakistan's ousted judges: betrayal in the name of reconciliation
10:58 PM ET
Faisal Naseem Chaudhry [advocate, Lahore High Court, Lahore, Pakistan]: "In Pakistan's February 18 elections, the Pakistan Peoples Party (PPP) and Pakistan Muslim League (Nawaz), i.e. the PML (N), emerged as the two major parties in parliament respectively. On March 09 this year, both parties signed the six-point "Murree Declaration", the second point of which indicated that the judges ousted by President Musharraf under last November's proclamation of emergency rule shall be restored within 30 days of the formation of the Federal Government through a Parliamentary Resolution. The countdown to restoration commenced on March 30 when the Federal Cabinet took its oath of office, but the whole thing has proved to be a waste of time while the entire nation was glued to the tele-screens waiting for the promise to materialize. April 30th became part of history today but the deposed judges of Pakistan remain deposed. All credit for this goes to the gimmicks of Mr. Asif Ali Zardari (AAZ), the Co-Chairman of the PPP.
It is not that easy for Mr. Mian Nawaz Sharif (MNS) to step out of the coalition. This is why he may prefer to step out of Federal Cabinet (for face-saving) but shall continue to support the PPP Government. Becoming an opposition party in the National Assembly would authorize the PPP to use all fair and unfair means for toppling the PML (N) government in the Province of Punjab, the most important of the four provinces where the Chief Minister belongs to PML (N) and PPP holds some ministries. Ruling the province of Punjab, the most thickly populated and the most resourceful part of Pakistan, has been an unfulfilled dream of PPP for a long time.
AAZ has not only let down the deposed judges but most notably the lawyers headed by Aitzaz Ahsan, President of the Supreme Court Bar Association, who is also a Member of the PPP's Central Executive Committee. According to news items appearing on April 04, there had been an exchange of harsh words between Zardari and Ahsan (though Ahsan later termed it a mere conflict of opinion) to the extent that AAZ kind of threw a challenge to Ahsan daring him to go ahead with his 'Long March' pressing for restoration. AAZ intentionally did not implement the most important part of the Murree Declaration for the purpose of showing Ahsan that he, his lawyers, his deposed judges and his movement are not worth anything to the PPP.
A few days before the April 30th deadline, AAZ opened his mind with BBC and secondly with a GEO News Interview not only in respect of the proposed constitutional package rather also the person of ousted Chief Justice Chaudhry. Most Pakistanis have regarded it unfair that AAZ is ready to reconcile with every political force in Pakistan, even the MQM of Karachi which burnt alive a number of lawyers in Karachi a couple of weeks ago, yet maintains personal venom and vendetta against the person of Chief Justice Chaudhry. It is not the old memories of the BMW case before the Supreme Court, rather the National Reconciliation Ordinance (NRO) which is his point of concern.
When Benazir Bhutto (BB) was returning to Pakistan in the last quarter of 2007, President Musharraf promulgated the NRO (also regarded as National Humiliation Ordinance by some writers) chiefly to facilitate BB and AAZ in respect of their cases involving huge corruption and kick-backs. Chief Justice Chaudhry had issued an injunctive order against the Ordinance and then everything changed with November 3 Martial Law sugarcoated as Emergency. Mr. Dogar became the Chief Justice and favourable judgments pleased Zardari including one upholding the operation of NRO. Justice Dogar had been working as a Junior Associate of Mr. Qaim Ali Shah, the incumbent Chief Minister of Sindh who managed to have him recruited as Additional District Judge during the first tenure of BB (1986-1988).
Zardari feels comfortable with Justice Dogar, a man from the Province of Sindh where the Bhutto shrine is situated. If Justice Chaudhry becomes Chief Justice again with the same conventional judicial and administrative powers a Chief Justice enjoys, Zardari is apprehensive of the striking down of NRO which will again send him behind the bars or at least into exile. He does not want to take any chances particularly when it shall merely add more votes into the vote bank of Nawaz Sharif who contested the February 18 elections with the solemn pledge of reinstatement of deposed judges. Voters voted for PML (N) for the restoration of judiciary. For PPP, it was the blood of slain BB which resulted in a good harvest.
So AAZ wishes to either circumscribe the tenure of Chief Justice Chaudhry or curtail his unbridled administrative powers including the power to constitute a Bench of own choice, fixing cases of own choice. He also desires to retain the Judges who took oaths under the Provisional Constitution Order on Nov 3 last year and thereafter as fresh appointees. Anything short of this shall be ostensibly unacceptable to AAZ. Can he survive without the support of PML (N)? Certainly not only in Centre but in all the four provinces too. Only for Punjab, he shall have to put in little effort for a successful vote of no-confidence against the PML (N) Chief Minister. MNS is not likely to step out of coalition even for the sake of deposed judges. He will give more time to AAZ for the reinstatement yet where do the lawyers stand in this standoff?
A third round of talks between AAZ and MNS is going to take place tomorrow on May 01 in Dubai. Maybe by tomorrow evening a firm roadmap will be provided for the reinstatement through a simple majority resolution of the National Assembly, yet the point is simple. How can you trust this man whose ego is superior to a superior court?"
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 | e-mail post   |
post comment | 0 comments
|
how to subscribe |
© JURIST
Afghanistan's Guantánamo: unfair trials exported
9:37 PM ET
Sahr MuhammedAlly [senior associate, Law and Security program, Human Rights First]: "While pre-trial motions continue at Guantánamo Bay, Cuba, at other end of the globe in Afghanistan more than 60 former Guantánamo and Bagram detainees have been convicted based on little more than mere allegations by the United States. After years of detention in U.S. custody without any due process, these detainees, although now finally in some legal process, are being tried by the Afghans in violation of basic fair trial standards.
Earlier this year I was in Kabul, Afghanistan, to examine the prosecutions of former Guantánamo and Bagram detainees. Over 250 Afghans from Guantánamo and Bagram have been transferred since April 2007 to the American-built Afghan National Defense Facility (ANDF) in Pul-i-Charkhi prison in the outskirts of Kabul. Defendants are being tried under a Soviet-era Afghan national security law and are being charged with crimes ranging from destruction of government and private property to assisting enemy forces. Of the 160 persons referred for prosecutions, since October 2007 over 60 have been convicted, and more than 40 have been sentenced to imprisonment for up to 20 years. Trials last between 30 minutes and an hour. There are no prosecution witnesses at the proceedings, no out-of-court sworn prosecution witnesses, and little or no physical evidence is presented. [See Human Rights First, Arbitrary Justice: Trial of Bagram and Guantánamo Detainees in Afghanistan].
I personally observed two trials while I was in Kabul - each lasting around 30-35 minutes. The prosecutor stood up and read a statement of the charges and the evidence to support the charges. The evidence consisted simply of what the United States military had accused the defendant of doing, including a summary of the circumstances of capture, and what the Afghan intelligence agency - the National Directorate of Security (NDS) - had found, years after the capture, to support the allegations. The defense counsel then stood, denied the allegations, and repeatedly enquired as to the source and validity of "evidence" relied on by the prosecutor. Members of the three-panel judge then asked the defendant questions and one judge read from the dossier (evidence file). In one trial, a judge showed a photograph to the courtroom of captured ammunition that was allegedly linked to a defendant. There was no discussion of the type of ammunition, who found it, who is now in possession of those weapons, or how the ammunition was allegedly - if at all - linked to the defendant.
There were no witnesses at either proceeding. One defendant was sentenced to 8 years and the other to 10.
In one of the trials I observed, the defendant did not even speak Dari - the language of the court proceedings - but spoke Pushto (which, like Dari, is one of the two official national languages of Afghanistan), and repeatedly looked to his lawyer for translation assistance because the court provided no translator.
I was also able to examine the "evidence" the United States provided to the Afghans in these cases, and the results of the Afghan intelligence agency's own investigation. The U.S. evidence consisted of second-hand interrogation summaries; a two- to three-page form, which included a short description of the circumstances of arrest; and information about whether the detainee had undergone a polygraph test and the result of the test. There were no witness statements or even identification of government witnesses in these documents other than generically naming the detaining entities as Coalition Forces or Afghan National Army.
The Afghan intelligence agency documents included summary findings by the local NDS office where the alleged incident took place, and summarized incriminating statements about the detainee by unidentified witnesses. The NDS and national security prosecutor also interview every detainee and the answers to their questions were included as part of the dossier.
I asked a national security prosecutor about the quality of evidence, and he acknowledged that there are problems regarding the evidence, but he too was unable to get more from the United States. Still, he admitted, there is pressure from the United States to prosecute all the detainees.
A fundamental requirement of any fair criminal proceeding is that the defendant must be able to confront the evidence and question witnesses to the allegations. The former Bagram and Guantánamo detainees are completely denied of this right, in violation of both Afghan and international law.
The ANDF undoubtedly will continue to receive detainees in U.S. custody as more than 600 remain in Bagram and more than 30 Afghans are still in Guantánamo. But it is critical that, after years of confinement, any U.S. detainees transferred to Afghan custody who are charged with criminal violations of Afghan law have a fair adjudication of their cases. One way is for the Afghan government to demand from the United States names of witnesses to the allegations so that the prosecution can support any charges and the defense has the ability to mount a real defense. The United States, as the capturing and detaining power, should be willing make available witnesses for prosecutions.
The United States has made a policy decision to do just that in Iraq - where U.S. service members appear every day as witnesses in trials of suspected insurgents in the Central Criminal Court of Iraq. In Iraq the U.S. military trains soldiers and Marines in evidence collection and makes available soldiers for testimony in Iraqi trials of persons captured by the United States. The same principle should apply in Afghanistan.
The U.S. government's response to the findings of unfair trials has been to say that the trials are being conducted according to the Afghan justice system. These trials in fact are being conducted in contravention of the 2004 Afghan criminal procedure law, which on its face largely meets international fair trial standards. The United States is one of the largest donors supporting justice sector reform in Afghanistan and is involved in writing laws, training judges, prosecutors, and mentoring the Afghan Attorney General's office. But in the case of these trials the United States is actively complicit in pressuring the Afghan government to disregard its own law and fundamental due process standards. If these trials are evidence of how justice reform donor countries in Afghanistan work to foster the rule of law, the snail's pace of judicial reform in Afghanistan is regrettably more understandable.
Once U.S. detainees who are Afghan nationals are turned over to the Afghan government, Afghan courts should be allowed - and equipped - to fairly decide the outcome. The rule of law should be the goal here, not the rubber-stamping of U.S. allegations."
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
Pakistan must restore sacked judges without delay
10:50 AM ET
Ali Khan [Washburn University School of Law]: "Pakistan’s ruling Coalition has less than forty-eight hours left to fulfill their pre-election promise with the nation to restore the high court judges that General Musharraf fired by means of the 2007 Emergency Proclamation last November, an action contrary to the Constitution. The country's lawyers are likely to protest hard and refuse to cooperate with the new government if the Coalition fails to deliver the promise.
The Pakistan Peoples Party, the chief party of the Coalition, appears to be uncertain about the modalities of restoration even though it had previously agreed that the judges would be restored through a Parliamentary resolution followed by an executive order. Since the sacking of the judges was unconstitutional per se, the cumbersome constitutional procedures were deemed unnecessary for the restoration.
More pressing problems await the Coalition. The shortage of food items and electricity frustrates the common people on a daily basis. The court system is less than fully functional. The economy is sliding into non-performance. The national debt is high. Pervez Musharraf refuses to step down. The Attorney General who engineered the undermining of the Constitution is still in office. The Prime Minister should have fired the Attorney General right away, for his continued occupation of the highest law office is an affront to the supremacy of the Constitution. The Coalition must move fast on the primary logistics of cleaning the constitutional mess. If the Coalition fails to handle the relatively easier issue of the restoration of judges, it is unlikely to stand the pressures of solving the more serious problems."
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
Reformist Muslims need legal protection from blasphemy accusations
12:31 PM ET
Farzana Hassan [president, Muslim Canadian Congress] and Tarek Fatah [founder, Muslim Canadian Congress]: "How long will it take the leadership of North America's traditional Muslim leadership to embrace the First amendment of the United Sates constitution and the doctrine of the separation of religion and state? Will the concept of freedom of expression survive ever-new challenges from the defenders of medieval traditions that bar any discussion or critique of religion?
These are questions bubbling below the surface right now, but eventually are bound to erupt into the open. Moreover, when they do, chances of a rise in overt racist backlash against Muslims of all shades and opinions is a likely outcome. Certainly, the events of the past few months provide ample evidence for this trend, with two human rights complaints making newspaper headlines and leading to fierce debates about the limits of free speech and what might constitute hate literature.
The first involved a human rights complaint against Ezra Levant, the editor of the defunct [Canadian magazine the] Western Standard, while the second, more recent one, was filed against Macleans magazine, by four Osgoode law students on behalf of the Canadian Islamic Congress. Needless to say, these complaints are justifiably interpreted as assaults on freedom of speech and conscience by Canadians both Muslim and non-Muslim, leading many to question the mandate of these commissions as well as the validity or otherwise of these human rights complaints.
Historically, orthodoxy has demanded abject compliance to the closed belief systems it guards. Therefore, the freedom to question, challenge, and evaluate dogma remains an elusive ideal for those who practice it, often at great risk to their lives and persons. Though in the West, "heresy" came to be accepted as valid religious expression in the seventeen hundreds in keeping with the first amendment; Muslim societies continue to be dogged by obscurantism and a stubborn resistance to modernity. Many a time, such intransigence results in lawsuits, human rights complaints and conspiracy theories against individuals perceived as threats to the status quo.
As an example, the United Nations Human Rights Commission (UNHRC) recently approved a resolution protecting religion from "defamation". Once again, the drivers of this move were Islamist organizations who refuse to tolerate the slightest dissent over religious matters. What these tyrants and monarchs from the Arab world fail to realize or choose to pretend otherwise is the fact that critics of Islamist ideologies are not opposing Islam as a religion, but the use of Islam as a political ideology that hides behind religion for protection, while seeking political ascendancy.
For Muslims who believe in challenging religious dogma, who actively pursue the goal of bringing about reform in Muslim societies and who advocate the separation of religion and state, this becomes a particularly threatening scenario as charges of blasphemy and apostasy often occasion calls for the execution of "apostates" and "heretics". A Turkish man recently convicted of "ridiculing god" faces the death penalty in a Saudi prison while secular and moderate Muslims living in the West are frequently the targets of death threats or bullying tactics to silence them one way or another.
The law in Canada and the United States must look into formulating legal measures that protect reformists within various faith traditions. In particular, given the serious consequences that secular and reformist Muslims face in their efforts to challenge orthodox positions, charges of apostasy and blasphemy leveled against them by fundamentalists should be criminalized as legal safeguards against such bullying and silencing tactics. The United States and Canada must look into introducing legislation that will protect such individuals from these accusations often laden with threats to their lives and security.
As long as Islamists around the world use Islam as a political ideology in the footsteps of such jihadi ideologues as Hassan Al-Banna, Syed Qutb, Abul Ala Maudoodi and Ayatollah Khomeini, their Muslim, and non-Muslim opponents will have the right to challenge this ideology with full vigour. Hiding behind the skirts of religion to avoid being critiqued, these fascist cults demonstrate not just cowardice, but a cunningness that is fooling large segments of the liberal-left intelligentsia in the West, which will be among the first to suffer if and when Islamists use liberal democracy to extinguish its light."
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
PHOTOS: Meeting the ousted Chief Justice of Pakistan
3:43 PM ET
Faisal Naseem Chaudhry [advocate, Lahore High Court, Lahore, Pakistan]: "On April 22, a delegation of Lahore-based lawyers called on deposed Pakistan Chief Justice Iftikhar Mohammed Chaudhry at his residence in the capital Islamabad. Since many could had wished to become part of the delegation, the leaders of the Bar Association kept the visit quite secret. Luckily, the brother-in-law of the deposed Chief Justice (Mr. Awais Rana) is a colleague, another Lahore-based lawyer who managed to put my name on the approved list of visitors.
We reached the residence around 11 AM, as the meeting was to start by 11:45. We arrived early mindful of security measures, yet there was no hindrance. Chief Justice House is located at a prime location in Islamabad, opposite Sindh House. There were barriers as well as police checkposts since it was a high security area, yet the police officers were aware of our arrival and there was no trouble coming from any quarter. The renowned Mr. Athar Minallah, one of the leaders of the Lawyers' Movement, was waiting for us so that everything went smoothly, and everyone appreciated his concern and efforts.
The delegation was headed by Lahore High Court Bar President Mr. Anwar Kamal, included the leaders of the Lahore High Court Bar, Lahore District Bar, and Lahore Tax Bar. Some of the participants were ex-office holder like the well-known Mr. Muhammad Shah, the former president of the Lahore District Bar who faced the entire wrath of the Lahore police from March 09, 2007 (when Chief Justice Chaudhry was first suspended from office) to Jan 2008 i.e. until the time new elections took place replacing him with a new President.
We were a total of 20, and were invited to sit in the comfortable spacious visitor's room of the Chief Justice House. Within minutes, the Chief Justice was with us. He greeted and welcomed every guest personally and very warmly. The meeting continued for more than an hour during which all the participants expressed their views about the Lawyers' Movement, the steadfastness of the Chief Justice, as well as the 'Muree Declaration' signed by the two major political parties promising the restoration of the deposed judges. Some concerns were also voiced about the so-called 'Minus One Formula' appearing in the press according to which the judiciary shall be restored but without the Chief Justice Iftikhar Chaudhry. A little discussion followed on the possibility of curtailing the tenure of Chief Justice Chaudhry through a constitutional amendment.
"Discussion" may not be a proper word for all this, however, as all the little speeches were made by the office holders of the bar and the Chief Justice kept quiet, smiling. It was natural. He is undoubtedly the most important man in today's Pakistan and his every single word means a lot to many. He was courteous, asking an assistant to serve us with soft drinks and cake yet not speaking much except making the obvious pledge to uphold the rule of law and the Constitution.
After the meeting, we asked the Chief Justice to join us for a little photo session to which he graciously consented.
We moved to the rear lawn of the Chief Justice House and I was the only lucky one who managed to take a solo flight i.e. a solitary photo with His Lordship.
Again he individually thanked all of us for coming all the way from Lahore and we said goodbye where the media was waiting out on the road for Mr. Anwar Kamal to say few words.
My personal feeling was that the Chief Justice was under great pressure; it was not pressure from the Presidency nor from the Parliament. The nature of this pressure is a little hard to explain. More than his job is at stake, more than his future is at stake, more than a Constitution is at stake. Every minute was taking us to April 30 when the deadline for action is over and if Chief Justice Chaudhry is not restored to his November 02 position, there will be chaos. According that, Chief Justice Chaudhry is to retire on 11 December, 2013 and not any earlier. Apart from this unexplainable pressure, His Lordship was in great spirits. He was not a 'worried man' by any stretch of imagination.
The Chief Justice did not speak much, did not comment much. Only thanked and encouraged us to remain faithful to the supremacy of rule of law which is the cornerstone of the Lawyers' Movement. Meeting him in the spectacular Chief Justice House was a more than pleasant experience. My personal thanks to Mr. Awais Rana, although Mr. Anwar Kamal was little surprised to see me there."
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
Wednesday, April 23, 2008
|
Supreme Court lethal injection ruling a setback
4:11 PM ET
Julien Ball [administrative coordinator, Campaign to End the Death Penalty]: "Back to the killing game. That is what the Supreme Court's decision upholding the method of execution known as "lethal injection" means.
Thirty-five states that use the death penalty put prisoners to death by lethal injection — where a prisoner is given three different drugs to bring about his or her death. This method does not violate the constitutions ban on cruel and unusual punishment, according to the Supreme Courts decision.
This gives a green light to these states to dust of their death machines and start up their engines.
For seven months we got a taste of what it would be like without the death machine after a de facto halt on executions was in place. Now it's lifted. And many poor and disproportionately minority prisoners that had exhausted their appeals will likely find themselves on an execution list in the not too distant future. During that seven months we saw the "exonerated from death row" list climb to 128. Isn't it time to to recognize the unfairness, racism and error prone nature of the death penalty and do away with it?
But the Supreme Court didn't address the larger issues of the use of the death penalty itself. They instead focused on the aspect of the procedure of how someone is executed — specifically lethal injection. And even here they failed to grasp the torturous nature of this method of execution.
The problems surrounding the lethal injection protocol used in 35 states are indisputable. It is well-documented that the first drug administered often fails to sedate death row prisoners, ensuring that they suffer excruciating pain as the second and third drugs paralyze them, then stop their heart. In April 2005, the British medical journal The Lancet published a report, finding "that in 43 of the 49 executed prisoners studied the anesthetic administered during lethal injection was lower than required for surgery. In 43 percent of cases, drug levels were consistent with awareness."
The ruling in Baze v. Rees is a setback. It reverses the trend of the U.S. Supreme Court to limit the scope of the death penalty. In 2002, the court declared the execution of the mentally retarded unconstitutional, and in 2005, it banned the execution of juveniles, citing "evolving standards of decency." States, too, have bolstered this trend, as New Jersey became the first state to abolish the death penalty legislatively last December.
The Supreme Court has declared that torturing someone to death is not cruel and unusual punishment. But no matter how the chemicals are mixed, the death penalty is still cruel. It's cruel that it punishes the poor; it's cruel that it targets African-Americans and Latinos; and it's cruel that it condemns the innocent to die. The death penalty is wrong, and there's just no right way to do the wrong thing."
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
Fourth Amendment rights curtailed by Bush administration...but to what extent?
8:10 PM ET
Daniel M. Smith [Colonel, USA (Ret.); Senior Fellow for Military Affairs, Friends Committee on National Legislation]: "I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation. James Madison, 1788
October 23, 2001. For sixteen days, U.S. warplanes had been dropping the very latest GPS-guided iron bombs on Afghanistan after that country's ruling Taliban faction refused to surrender Osama bin Laden to stand trial for the murder of more than 2,935 people on 9/11. On that same October day but physically half-way around the globe and a universe apart in experience and opportunity, Deputy Assistant Attorney General John Yoo of the Department of Justice's Office of Legal Counsel, finished a classified legal memorandum that discussed the extent to which the president could restrict or suspend entirely fundamental freedoms guaranteed by the U.S. Constitution during "domestic military operations."
Somehow, citizens and legal residents of the United States had become the enemy or, at the very least, collaborators simply because of the freedoms enumerated in the Constitution. The pen, so fervently and frequently hailed as mightier than the sword in enumerating democracy's gifts, was being used to scratch all of them from the nation's chronicles.
On April 10, 2008, six years, five months, 17 days after Yoo finished his memo, members of the Senate Appropriations Committee challenged the current Attorney General, Michael Mukasey, to declassify that Yoo memo which is but one of a number of legal opinions that purported to justify radical steps to expand presidential power within the United States in the aftermath of an attack that President Bush responded to – erroneously – with military forces rather than the judicial system within the United States and the cooperation of allied nations around the world.
Regrettably, for most of the nearly 6½ years since the October memo was penned, the public failed to mount sustained pressure on Congress to repudiate the White House power grab. While more voices are being raised in protest, the administration is attempting to consolidate its "gains" by demanding that Congress not only re-authorize expanded surveillance powers that have or are about to expire but make them permanent. And because the administration can conceal so much by simply classifying documents and records, the scope of its subterfuge may never be discovered until historians gain access to government records – if then.
In truth, it was pure accident that the existence of the October 23 memo became public. Administration redactors failed to black-out a footnote in another OLC memo dated in March 2003 that described the earlier memo as concluding "that the Fourth Amendment had no application to domestic military operations." (The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.") Moreover, what was not revealed by the Attorney General is how long OLC's finding with regard to the Fourth Amendment was in force; Mukasey noted that the Justice Department "withdrew the March 2003 memo nine months after it was issued," but he declined to be drawn out on the October 2001 finding.
From what has become public through Freedom of Information (FOI) requests, associated FOI judicial rulings, and challenges to the Bush administration attempts to devise non-standard courts and associated judicial structures, it is clear that the White House was engaged in a wide-ranging effort to deprive the public of the very liberties that are the hallmark of a free society. How close we came – and how close we still may be – to the abridgement of individual rights by the administration may come to light only when the official history of the first decade of the 21st century is written.
To that end, the Congress might invite the Attorney General to come to Capitol Hill to elaborate on what he means by "the principle that the Fourth [or any other] Amendment doesn't apply.""
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
UK ex-Guantanamo detainees suit: no room for arbitrary detention and torture
2:00 PM ET
Asim Qureshi [senior researcher, Cageprisoners]: "After years of being held in detention without charge, the British men released from Guantanamo Bay who are pursuing legal action against the intelligence services are sending a very clear message to both governments and security services: there is no room for arbitrary detention and torture.
The released men - who were never charged with any crime during their imprisonment - have never received a formal apology from the US or UK governments for the ordeal they underwent. The process of taking action against the UK administration clearly seeks to redress the complicity of the British government in rendition to torture and false imprisonment at secret detention sites, culminating in incarceration at Guantanamo Bay.
Whatever may result in the outcome of these claims, it is not acceptable that British citizens (indeed any citizens), are detained beyond the protection of the law, interrogated by British security services and then simply handed over, extrajudicially, to third party countries."
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
Death penalty debate still alive after Supreme Court decision in Baze v. Rees
5:18 PM ET
Richard C. Dieter [Executive Director, Death Penalty Information Center]: "On April 16, the U.S. Supreme Court issued a splintered decision on the constitutionality of Kentucky's lethal injection process. Despite the seven different opinions, there were many aspects of the decision that were not surprising, and a few aspects which most people did not see coming. It was not surprising that Chief Justice Roberts held that as long as the death penalty is constitutional, there must be a lawful way of carrying it out. And it is long-standing doctrine that the Eighth Amendment does not require that methods for carrying out punishment be absolutely painless. It was not even surprising that the Court upheld Kentucky's execution process, given that the state had only carried out one lethal injection and did not have an extensive record revealing the myriad problems that have been exposed in other states.
It is likely that challenges to lethal injection will continue around the country. Inmates will attempt to show, based on extensive hearings, recent discovery, and examples of botched executions, that their state differs substantially from Kentucky in the way it carries out lethal injections. In some instances, they will be able to show that alternatives are readily available and have been recommended by a variety of experts. Some states may have to make changes in their training of personnel, supervision of the execution, or the drugs they apply if executions are to resume.
It was perhaps surprising that a number of the Justices expressed their concerns about the paralyzing effects of the second drug, pancuronium bromide. This is the drug that hides the inmate's pain that is at the core of this controversy. Although states are not compelled to abandon this paralytic and change from the three-drug protocol based on Kentucky's experience, part of the Court seemed to be saying that it would be wise for them to do so. Chief Justice Roberts said that the Court has relied on the states to find more humane methods of execution, even when they are not specifically compelled to do so.
Finally, Justice Stevens' conclusion that he now regards the death penalty itself as unconstitutional came as a revelation to many people. On the whole, the arguments and decision in Baze v. Rees were devoid of the larger questions that usually surround capital punishment. Justice Stevens forced the Court to consider whether death penalty itself had become detached from any discernible state purpose. If it is just the pointless extinguishing of human life, then it cannot be justified, no matter what the method being used. Judging by the many editorials that have been written since the decision last week, this issue may have struck a chord that is reverberating around the country. That challenge may be much harder for the Court to resolve."
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
Supreme Court vindicates Kentucky execution procedures in Baze v. Rees
5:05 PM ET
John Cummings [staff attorney and co-counsel to, Kentucky Justice and Public Safety Cabinet]: "The decision of the U.S. Supreme Court in Baze v. Rees represents a sweeping vindication of the Commonwealth of Kentucky's execution procedures against constitutional attack. The plurality opinion confirms that the safeguards contained in Kentucky's lethal injection protocol eliminate any substantial risk of harm to condemned inmates. The decision also confirms the competence and professionalism of the Department of Corrections personnel who carry out the protocol. The standard announced in the plurality opinion will greatly simplify, if not eliminate, the repetitious litigation challenging the constitutionality of similar lethal injection protocols in other States across the nation."
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
Despite Kentucky death penalty ruling, Supreme Court justices offer hope
10:21 AM ET
Sarah Tofte [researcher, Human Rights Watch]: "On April 16, in Baze v. Rees, the US Supreme Court issued its highly anticipated ruling on the constitutionality of Kentucky's use of lethal injection as a method of execution. Although on the surface the Court's decision, by a vote of 7-2, to uphold Kentucky's lethal injection protocol looks like a clear endorsement of current execution methods, the deeply fractured opinions of the seven justices who voted in the majority make it highly likely that Baze will not resolve the rising concern of lawyers, judges, medical experts, and the public that lethal injection is inhumane.
When the Baze decision came down, the immediate headlines announced that opponents of lethal injection had lost. But those who believe that lethal injection is an unacceptably risky way to kill found hope in the language of Chief Justice Roberts, who noted that if there is an alternative to the current lethal injection protocol that is "feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain," then a state's refusal to adopt that alternative could constitute cruel and unusual punishment prohibited by the Eighth Amendment.
In a 2006 report, Human Rights Watch found that death penalty states had paid little or no heed to the risk that lethal injection may cause unnecessary pain and suffering. In fact, lethal injection poses many hazards, including a significant risk that the condemned prisoner will suffer excruciating pain, yet be unable to move or cry out because of a paralytic drug that is administered as part of the execution protocol. These concerns are not merely hypothetical. Just consider the 2006 Florida execution of Angel Nieves Diaz, who was given a second dose of the three-drug protocol after the first dose failed to kill him. An autopsy revealed that the needle inserted into Mr. Diaz had gone through his vein and into his soft tissue, where the deadly chemicals were not absorbed fast enough to cause a swift death. It took Mr. Diaz thirty-four minutes to die.
It is also important to note another milestone of the Baze case. For the first time, Justice Stevens made clear his view that the death penalty is unconstitutional, in an eloquent and damning opinion listing the reasons why Americans should halt the failed experiment of capital punishment. The list is long, but includes the dozens of wrongfully convicted death row prisoners later exonerated by DNA testing; the racially discriminatory application of the death penalty; and the lack of any clear evidence that the death penalty deters violent crime.
Support for the death penalty runs deep on the current Court, and few expected a ruling that would have brought executions to a halt for the foreseeable future. But even as it upheld Kentucky's protocol, the Court made unmistakably clear that executions must not involve gratuitous suffering. Death penalty states should carefully review their execution protocols with this warning in mind, rather than engaging in an unseemly rush to kill."
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
Baze decision masks division over capital punishment
3:38 PM ET
Laura Porter [Director of Organizing, Equal Justice USA]: "The Supreme Court issued its decision in the case of Baze v Rees this week, upholding the constitutionality of Kentucky's lethal injection protocols. Texas has already taken the Court's ruling as a green light to set an execution date - the first of dozens of cases that have been on hold in anticipation of the ruling - and other states like Florida have announced that they will resume their schedule of executions as well.
But the 7-2 decision in Baze belies a deeply fractured consensus on the Court. The seven jurists in the majority expressed different reasons and differing opinions as to how this will effect future executions. Justice Alito acknowledged that "[t]he issue presented in this case – the constitutionality of a method of execution – should be kept separate" from more fundamental questions about the death penalty itself. Others noted that the fate of capital punishment remains in the hands of the states. In that regard, this messy decision reflects the deep uncertainty as to the future of that fate – uncertainty that continues to grow well beyond the issue of lethal injection.
Death sentences – which were free to continue unabated during the lethal injection moratorium – are at an all-time low. Juries are consistently choosing life without parole over the death penalty. Meanwhile, across the nation lawmakers are asking whether the penalty makes sense anymore. California, Tennessee and Maryland are conducting statewide studies to examine the death penalty system. New York's death penalty has been permanently suspended and there's little appetite to bring it back. New Jersey fully abolished the death penalty last year, while Montana, Nebraska and New Mexico have come close to doing the same.
This trend is hardly surprising. The risk of executing an innocent person continues to haunt the American public. Just last week another wrongfully convicted man walked off death row after a court found that evidence pointing to his innocence was hidden from his attorneys for over a decade. We also know more today than ever before about the ways the death penalty impedes law enforcement efforts and harms victims' family members.
Police Chief James Abbott, a death penalty supporter who served on the New Jersey Death Penalty Study Commission, recently wrote, "I no longer believe that you can fix the death penalty. Six months of study opened my eyes to its shocking reality. I learned that the death penalty throws millions of dollars down the drain – money that I could be putting directly to work fighting crime every day – while dragging victims' families through a long and tortuous process that only exacerbates their pain." Law enforcement officials in Maryland, California, and New York have concurred, coming forward to say that the death penalty is simply not an effective law enforcement tool.
In one way, the ruling in Baze will have a clear effect: it puts an end to the longest period without a single execution in our country in decades. After such an extended moratorium, we can expect to see a slew of executions in the coming year. But that will not affect the sea change in public opinion and state policy – a shift that, despite the collateral matter addressed in Baze, is moving us beyond the death penalty altogether."
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
Wednesday, April 16, 2008
|
Report from Guantánamo: military commissions a failure in progress
12:01 AM ET
Frank Kendall [volunteer consultant, Human Rights First]: "Last week I traveled to Guantánamo Navy Base as a monitor for Human Rights First. I observed pretrial hearings in the cases of Ibrahim Ahmed Mahmoud al Qosi, Ahmed Mohammed Ahmed Haza al Darbi, and Omar Ahmed Khadr. The ostensible goal of the military commissions is to provide fair trials for a subset of the Guantánamo prisoners being held as "unlawful enemy combatants." I must report that the commissions are not on the path to success. Success is probably not even possible under the Military Commissions Act (MCA) or the rules that implement it, but the hearings I attended convinced me that the implementation itself is also deeply flawed.
The three defendants whose hearings I observed were not the "high value" prisoners who were moved to Guantánamo in 2006. They are people who have been at Guantánamo for several years, since shortly after the detention facility was established. Mr. al Darbi, a 32 year old Saudi national, is alleged to have purchased a boat in the Middle East to use in a terrorist attack against shipping in the Straits of Hormuz. Mr. a Qosi, a 47 year old Sudanese national, is charged with being a security guard, driver and fighter with Osama bin Laden in Afghanistan up until the fight at Tora Bora. Mr. Khadr, a 21 year old Canadian citizen, is accused of killing an American soldier in a firefight in Afghanistan in June 2002 when he was age 15.
There are fairly detailed accounts of the hearings I observed at the Human Rights First and American Constitution Society websites. Here I would like to focus on two aspects of the military commissions: (1) the dilemma facing attorneys who are forced to represent clients against their wishes, and (2) the problem of military judges who lack power to enforce defendants' rights.
Three Guantánamo defendants have rejected their attorneys' representation and have said they will boycott the proceedings. Two of the three, Mr. al Darbi and Mr. al Qosi, did so while I was at Guantánamo. Now their military defense counsel must decide whether to refuse to participate in the proceedings, as their clients wish, or to provide a defense, as the MCA rules and their military orders demand. It is an ethical quandary. If their clients' strategy is to protest the legitimacy of the proceedings, how can the lawyers represent the clients' wishes and interests by acting in direct opposition to that strategy and mounting a defense in the clients' absence?
The two defense attorneys I saw and spoke with in Guantánamo are going to consult their state bars for ethical guidance. For military lawyers, this is not as simple as it might be for civilians. Military lawyers have to follow orders, and at least one military judge made it clear that this is what is expected (and what the MCA requires). One alternative for defense counsel is to sit in court without providing a defense (or, as one attorney put it, like "a potted plant"). Another alternative is for the military to "forum shop" for lawyers whose state bars will allow them to disregard their clients' wishes. Neither alternative makes for trials with the appearance or fact of adequate representation.
The second issue I referred to — which occurred to me during Mr. al Qosi's arraignment — was even more troubling. Mr. al Qosi appears to have refused to meet with or talk to his new defense counsel, Navy Commander Lachelier. Mr. al Qosi's first counsel, who had gained his trust and cooperation over a long period, has moved on to her next military assignment (another issue, but for another time). Cmdr Lachelier has repeatedly asked to meet with Mr. al Qosi in his cell or from outside his cell, but her requests have been denied for "security reasons." Now her only means of communicating with Mr. al Qosi and requesting an in-person meeting is through written notes. Her notes are delivered and read to Mr. al Qosi by the prison guards. She is only allowed to send one note a day and was told that more than one a day would be "harassing" Mr. al Qosi. Mr. al Qosi is permitted to provide a verbal response, which is relayed by the prison guards back to her.
Last week, Cmdr Lachelier asked the military judge to direct that she be given an adequate opportunity to communicate with her client in person so as to gain his trust. But the judge believed she had no authority to take corrective action. Her exact response was: "I do not have the authority nor do I desire to alter the security procedures. You will use the normal procedures."
Because the MCA is a new body of law, there is no precedent to guide judges as to their authority beyond the courtroom. There is no apparent reason why the judge could not have delayed the proceedings until those responsible for security devised a way to provide Cmdr Lachelier with access to her client. As an alternative, the judge could have required that Mr. Qosi be brought to a holding cell in the commissions building to meet with Cmdr Lachelier. It is difficult to imagine how a judge may conduct a fair trial and protect the rights of the accused when that judge lacks the authority to ensure that the defendant's rights are enforced.
If the people who set up the military commissions believed that they would provide even the appearance of fair trials, then they have a lot to be worried about. If they believed that the military commissions would in fact provide fair trials, then that would seem to be a prospect without hope."
"Report from Guantanamo" features regular contributions to JURIST Hotline from Human Rights First.
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
Wednesday, April 09, 2008
|
Lethal injection protocol violates Montana Constitution
11:31 PM ET
Betsy Griffing [legal program director, ACLU of Montana]: "This challenge to the lethal injection protocol is based primarily upon violation of the Montana Constitution, rather than violations of the United States Constitution. We feel that two provisions in the Montana Constitution make this challenge particularly strong. First, we are claiming that the three-drug formula used by the Montana Department of Corrections violates the state constitutional prohibition against cruel and unusual punishments. This state constitutional provision has been interpreted by our Montana Supreme Court as granting broader protections than the US Constitution. The basis for this broader protection is the provision in the Montana Constitution guaranteeing the right of human dignity. Art. II Section 4, of the Montana Constitution states, in the first sentence, that "The dignity of the human being is inviolable." The Montana Supreme Court has interpreted this right of dignity as enhancing or broadening the protection against cruel and unusual punishments in our jails and prisons. In the Smith case, we are claiming that this elevated protection should apply when the Montana Courts look at the lethal injection process as well. If the Courts do evaluate the lethal injection process under this standard, we believe they will conclude the process is cruel and unusual as it exposes the condemned inmate to the very great and grave possibility of significant pain and suffering during the execution.
Also, the lethal injection process in Montana is shrouded in secrecy. Part of this challenge is to seek, under the Montana Constitutional "right to know provision" (Art. II, Section 9, Mont. Const.), full disclosure of the training and qualifications of the execution personnel. Currently, the Montana DOC has not provided any information on the training and qualifications of the executioner or execution team. While there is a statute that provides for the confidentiality of the identity and training of the executioner, we believe that statute is unconstitutional under the "right to know" provision. We believe that it is important that the people of Montana be fully informed about how executions are carried out in their name."
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
Report from Guantánamo: torture memo example of authorized prisoner abuse
10:12 PM ET
Deborah Colson [senior associate, Human Rights First, Law and Security]: "In a March 2003 Office of Legal Counsel memorandum, released for the first time last week, John Yoo justified the use of cruel interrogation techniques on "unlawful combatants held outside the United States" - including prisoners at Guantánamo Bay - by claiming that the president's commander-in-chief authority trumps federal and international law against torture. The Justice Department rescinded Yoo's memorandum nine months after it was issued. But the reverberations continue to be felt far and wide - both within the CIA's current "enhanced" interrogation program and, increasingly, in the military commission proceedings at Guantánamo.
Yoo's "shock the conscience" test for evaluating the legality of interrogation techniques is reflected in the Bush administration's current policy governing the CIA program. This policy, which was established by executive order last July, appears to permit even "willful and outrageous acts of personal abuse" so long as their primary purpose is to gain intelligence rather than to humiliate or degrade the prisoner. The effect is to blur the line of prohibited conduct to the point where any cruel treatment may be justified if said to be needed for intelligence purposes.
The military commission system at Guantánamo is also tainted by those within the Bush administration who justified and authorized prisoner abuse.
Human Rights First is one of four advocacy organization that have been granted permission to monitor the military commission proceedings. We have attended every hearing held at Guantánamo since 2004 and have sent an observer again this week to observe proceedings in four separate cases: continuing pre-trial proceedings in the cases of Omar Khadr and Ahmed al Darbi, and the arraignments of Ali Hamza Ahmed Suliyman al Bahul and Ibrahim Ahmed Mahmoud al Qosi. Khadr, al Darbi and al Qosi are among scores of Guantánamo prisoners who allege abuse in custody. To date, fifteen Guantanamo prisoners, including the four men who will have hearings this week, have been criminally charged. The first military commission trial is expected to begin sometime this year.
The military commission system was designed to legally sanitize evidence obtained through abusive interrogation techniques, both at Guantánamo and by the CIA. The Military Commissions Act allows the introduction of statements extracted through coercion and cruel treatment, ignoring fundamental fair trial standards that have been part and parcel of the American justice system for more than 200 years.
Terrorist suspects should be vigorously prosecuted, but no trial held under this system will be viewed as legitimate. In fact, the continued existence of these military commissions only undermines the nation's ability to bring accused terrorists to justice.
So what is the alternative? In a recent posting on Slate, Harvard Law School professor Jack Goldsmith suggested trying Guantánamo prisoners and other suspected terrorists in "national security" courts under modified rules of evidence, secrecy and security. But national security courts do not yet exist, and - like the military commission system - they would have to be created from scratch. Among other problems, modifying the rules that govern ordinary criminal courts only guarantees protracted litigation and unnecessary delay. The U.S. government should try terrorist suspects in federal criminal courts or by military courts-martial, according to time-tested procedures and protections that ensure fair process under the law."
"Report from Guantanamo" features regular contributions to JURIST Hotline from Human Rights First.
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
ICTY Haradinaj acquittal extraordinary
10:36 AM ET
Aleksandar Momirov [lecturer, Erasmus University]: "In what has been perceived as an astonishing judgment by many, the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) acquitted Ramush Haradinaj and Idriz Balaj of all charges, while finding the third co-accused in the Haradinaj et al. case, Lahi Brahimaj, guilty under two counts of the indictment for violations of the laws or customs of war and sentencing him to a single sentence of 6 years imprisonment. The three accused, high-ranking members of the so called Kosovo Liberation Army (KLA), were charged with, among other things, war crimes and crimes against humanity. Turning to the acquittal of Haradinaj, not being the Tribunal's first acquittal related to the activities of the KLA (see Limaj et al.), the Trial Chamber agreed unanimously that numerous charges accusing the former KLA commander were not proven.
The case, tainted by intrigue and peculiarities, has been followed by the Serbian and Albanian societies in Kosovo and Serbia proper with great anticipation. Consequently, the impact of Haradinaj's acquittal, celebrated by some and derided by others, was felt throughout the region. The legal sustainability of the judgment may be examined on appeal. However, the legitimacy of the acquittal promises to remain a matter of debate for the months to come.
From the outset, the Haradinaj case proved to be exceptionally convoluted. As the judgment emphasizes, major difficulties were encountered regarding the collection of exhibits and the hearing of witnesses. A distinctive feature of the case is reflected in the numerous charges dealing with crimes committed within the Albanian ethnic group, against supposed Kosovo Albanian collaborators during the conflict. This, together with Haradinaj's influence and support among an influential and significant part of the Kosovo Albanian population, determined the political atmosphere in which witnesses needed to be found. Nine potential high-profile witnesses, 3 of whom were under the witness protection program offered by the ICTY, were killed, thus adding to the environment of fear in which the remaining witnesses, many of which appeared only after numerous subpoenas and court orders, were found 'willing' to testify.
Not only was it hard to convince the witnesses to testify but the UN administration in Kosovo (UNMIK), approached by the Tribunal as the de facto authority in Kosovo, was less than enthusiastic in its cooperation with the Tribunal. Throughout the case, the office of the prosecutor (OTP) pointed out that these difficulties made it virtually impossible for the OTP to substantiate its indictment; something in which the OTP was proven quite correct by the Haradinaj acquittal.
This situation was made more difficult by the overt support of UNMIK that war crimes suspect Haradinaj enjoyed throughout his trial. Søren Jessen-Petersen, head of UNMIK at the time when Haradinaj stepped down as Prime-minister of Kosovo and surrendered to the UN Detention Unit in Scheveningen, stated that he saw Haradinaj as a friend whose presence in Kosovo would be greatly missed. Such flagrant partisanship by UNMIK continued, to the frustration of the OTP and Serbia, where 180 war crime-related criminal complaints against Haradinaj have been filed. During his highly criticized provisional release in 2007, Haradinaj met with Joachim Rücker, then and current head of UNMIK, and was subsequently allowed, in an unprecedented move by both the Trial Chamber and UNMIK, to engage in Kosovo's political life.
Being faced with a nearly paralyzed prosecution, Haradinaj's highly esteemed defense team decided there was no case to answer and refrained from calling upon any witnesses or adducing any evidence to rebut the prosecutions charges. The current acquittal, at least so far, showed that this remarkable legal gamble was justified. Indeed, the judgment is replete with references to the insufficiency, vagueness, inconclusiveness or non-existence of evidence. The Trial Chamber even largely dismissed the OTP's ballistics expertise, crucial to some of the charges; a dismissal rarely seen even in cases where similar reports were rebutted by counter-expertise of the Defense. Despite efforts of the OTP to bring the case before the Trial Chamber at all, considering the circumstances, the conclusions of the Trial Chamber cast a doubt on the sufficiency and determination of the OTP's approach to the case.
So what can be drawn from the acquittal itself and its consequences? According to the judgment, the OTP failed to prove and the Trial Chamber failed to find that the listed incidents amounted to an attack against a civilian population, let alone a campaign conducted by members of a joint criminal enterprise. In fact, the judgment emphasizes the incidental character of and personal motives behind the incidents in a manner not often seen in ICTY practice. All this being inherent to a conflict in which neighbors face neighbors, the contrast between the way in which relevant legal standards were applied in this case as opposed to certain previous landmark cases of the ICTY leaves many stranded with a hangover. Kosovo's capital Prishtina was left with a completely different kind of hangover, after Haradinaj's acquittal was received with street celebrations and official praise. Across the disputed 'border', Serbia's otherwise hopelessly divided political scene reacted with rarely witnessed unanimity. President Tadić, Prime-minister Koštunica, the opposition and several NGO's reacted with amazement and condemnation. Obviously not discharging Serbia of its outstanding obligations towards the ICTY, it is clear that by rocking the fragile legitimacy of the Tribunal once again, for many these obligations have become even more difficult to digest, confirming for many, that justice depends very much on the political favor, or disfavor, in which the accused and the victims happen to stand.
The OTP is considering whether it will appeal the judgment."
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 | e-mail post |
post comment | 0 comments
|
how to subscribe |
© JURIST
Domestic surveillance oversight necessary to prevent FBI abuse
9:41 PM ET
Melissa Goodman [staff attorney, ACLU, National Security Project]: "When Americans hear that the military is conducting domestic surveillance we tend to get a little squeamish. Isn't that the FBI's job? What is the military doing exactly? Who are they investigating and why? Well, here is what we do know, thanks to over 1,000 pages of records released to the ACLU by the Department of Defense (DoD) in response to a Freedom of Information Act (FOIA) lawsuit: (1) The military is using an intrusive domestic surveillance tool – National Security Letters (NSLs) – secretly to obtain private and sensitive records about people in the U.S., without court approval, and without any real oversight. Unlike court approved search warrants, NSLs are issued unilaterally by a government agency, without court approval, when the agency itself determines that the information is relevant to a terrorism or intelligence investigation. In response to our FOIA lawsuit, the military released copies of over 450 NSLs issued since 9/11 by the Army, Air Force, and Navy that demanded people's sensitive financial or credit records. [NSL documents; NSL statistics, PDF]
(2) The military might be circumventing the legal limits on its own NSL power by getting the FBI to issue NSLs for Defense Department investigations. There are five statutes that grant power to issue NSLs. 18 U.S.C. § 2709 grants the FBI alone the power to demand Internet, email and phone records from electronic communication service providers and states that businesses "shall comply." Similarly, 15 U.S.C. § 1681u grants the FBI alone the power to demand credit account information and states that the institution "shall furnish" the records. 12 U.S.C. § 3414, 15 U.S.C. § 1681v, by contrast, grant agencies authorized to conduct intelligence or terrorism investigations the power to demand financial and credit records but compliance is mandatory only if the request comes from the FBI. Finally, 50 U.S.C. § 436 allows government agencies to request financial, credit, and travel information about employees suspected of espionage or terrorism. Under some of these statutes, the military might have limited authority to request financial or credit records and compliance with Defense Department-issued NSLs is voluntary. By contrast, the FBI can demand not only financial and credit records but also Internet, email and phone records and can compel compliance. Given these important differences, we were quite concerned to learn that the military may be evading the limits on its NSL power by simply asking the FBI to demand the records for DoD in strictly-DoD investigations. For example, an internal report on the military's NSL use – recently redacted as a result of our lawsuit – reveals that "a DoD component can submit a Request for Assistance (RFA) where the FBI issues an NSL on a DoD investigation (not joint with FBI)," [report, PDF] that the internal report suggested that the military should start tracking "[t]he number of NSLs issued by the FBI at the request of a DoD component or as part of a joint DOJ/DoD investigation," [report, PDF] and that the internal report suggested the military start training people as to "[h]ow to make an NSL request thorough the FBI" [report, PDF]. These records are hard to square with DoD's misleading assertion to Congress that "DoD does not ask FBI to issue NSLs in conjunction with a DoD investigation [DoD |
|
