JURIST - Hotline

Tuesday, February 09, 2010

Attorney General is correct to insist on civilian trial for Abdulmutallab
12:07 PM ET

Billy Corriher [Attorney and researcher, Bill of Rights Defense Committee]: "Attorney General Eric Holder is standing firm on the decision to try Umar Farouk Abdulmutallab, the attempted Christmas Day bomber, in a criminal trial. Some senators critical of the decision not to use military tribunals have gone so far as to introduce legislation to block funding for civilian trials for terrorism suspects. In a letter [PDF file] responding to lawmakers, Holder insisted that the prosecution of Abdulmutallab will prove successful and that the administration's decision "has not, and will not, compromise our ability to obtain information needed to detect and prevent future attacks."

Holder pointed out that like Abdulmutallab, Richard Reid was arrested by federal authorities after trying to ignite explosives on a plane bound for the United States. The Bush administration tried Reid in a federal court, and he is now serving a life sentence. The Bush administration's criminal prosecution of Reid did not raise concerns, nor did a 2003 executive order specifying that the Attorney General is responsible for criminal investigations of terrorist acts committed within the Department of Justice's jurisdiction.

So why are some politicians now doubting the effectiveness of our criminal justice system in trying terrorist suspects? Policymakers criticizing the Obama administration as "soft on terrorism" are using the fear of terrorism to score political points. Instead of exploiting these fears, those politicians should participate in a constructive conversation about how to keep America safe.

There is no reason to doubt that Abdulmutallab will be convicted. Although statements elicited before Miranda warnings were issued may be inadmissible, authorities have confirmed that Abdulmuttab continues to provide valuable information to authorities. Abdulmutallab is accused of committing a crime in the presence of many witnesses - his would-be victims - and he will face a significant sentence. The United States criminal justice system is more than capable of obtaining justice for those who seek to kill civilians on a mass scale, whether it be in the case of Abdulmutallab or any other terrorist suspect. One need only read Holder's letter to find several examples of successful terrorism prosecutions since the 9/11 attacks.

Criminal trials for suspected terrorists will only strengthen our country in the struggle against terrorism. Our hand is stronger when the world sees that terrorists captured by the US are convicted in swift and fair trials. If we wish to triumph in the so-called "war on terror," then America's victories must have legitimacy. Military tribunals, which have relied on hearsay and evidence obtained through coercion, cannot provide this legitimacy. Working within our criminal justice system to try terrorist suspects ensures an American advantage in the struggle for hears and minds.

Terrorists should not be treated differently from other would-be murderers just because they are motivated by political intentions. Those who seek to further ideological ends through violence reject our society's fundamental rules. We must embrace those rules. The same rule of law that forbids mass murder to further political ends requires that our government treat all criminals in the same manner."

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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Sunday, February 07, 2010

Live Nation-Ticketmaster merger promotes competition in primary ticket sales market
2:21 PM ET

John C. Rodney [Partner, Thorp Reed & Armstrong, LLP]: "When I first heard about the proposed Live Nation-Ticketmaster merger, in early 2009, my initial reaction was "you have to be kidding." How could the nation's leading concert promoter team up with the nation's leading ticket seller without that foreclosing competition in the live music industry in many geographic markets? Surely the newly installed antitrust regulators in the Obama administration would put a stop to this. But, following an extensive review involving not only the United States but many individual states and other countries as well, and a comprehensive settlement, the deal closed near the end of January 2010.

This transaction illustrates two of the fundamental principles of antitrust law. First, determining whether or not a transaction runs afoul of the law almost always turns on defining the markets. Second, the law protects competition, not competitors.

To a ticket buyer, Ticketmaster always seemed like a monopolist. If it sells tickets to an event, you typically can't buy those tickets from anyone else, so the Ticketmaster "convenience charge" becomes part of the cost of the show. Why isn't that a monopoly? Well, the promoter could have set the ticket price at, say, $35 and then paid Ticketmaster $5 per ticket for selling the tickets, instead of setting the price at $30 and letting Ticketmaster add its own $5 convenience charge (some of which is typically rebated to the promoter or venue anyway). Or, the promoter could sell the tickets itself, which is what Live Nation had started to do before it agreed to buy Ticketmaster. Moreover, in a world where the physical ticket doesn't exist until it is purchased and then printed, having multiple outlets all trying to sell the same tickets simply doesn't work. So, while there may be a superficial appeal to the conclusion that Ticketmaster creates a monopoly at the individual event level, that really isn't the market of concern because the event promoter has a legitimate monopoly over its own tickets and, insofar as this analysis is concerned, can sell the tickets by itself or however it wishes. So, there is no market in which competition is being foreclosed.

So what's the problem? The major problem here related to Live Nation's large market share in major live event promotion and its control over many of the nation's major event venues (over a third) combined with Ticketmaster's over 80% share of the primary ticket reseller market. Could Live Nation limit the events it controls to arenas that use Ticketmaster to sell their tickets? That could certainly tend to foreclose competition in the ticket sales business because unless a venue signed up with Ticketmaster, it couldn't get the hot acts that Live Nation promotes. Could Ticketmaster refuse to sell tickets for an act unless the act agreed to let Live Nation be its promoter? For a company with over 80% of the market, that could be a big concern. Another important antitrust aspect of the transaction is that, in 2008, Live Nation started its own ticket selling company and offered those services to third parties. Live Nation was starting to get some traction with other venues and promoters. Another problem is that the switching costs for an arena or promoter that doesn't want to do business with its competitor, Live Nation, could be significant, thus further cementing Ticketmaster's position at non-Live Nation venues. In addition, for major acts, the onslaught of ticket buyers in the first few minutes tickets go on sale requires a major investment in IT infrastructure and software, but only Ticketmaster has the volume of business to support that investment.

What did the Department of Justice do about all this? Rather than filing suit to stop the merger, it required Ticketmaster and Live Nation to agree to several divestitures and other changes that would promote competition in the market for primary ticket sales. All of that is explained in the Competitive Impact Statement filed pursuant to the Tunney Act and currently available for public comment. The settlement was designed to create competition in the two key portions of the market - primary ticket reselling at multiple venues, and promoter controlled ticket sales. It did that by mandatory licensing or sale arrangements with two of the nation's largest live entertainment companies. In addition, Ticketmaster and Live Nation agreed not to retaliate against venue owners who get primary ticketing services from third parties or require venues to use Ticketmaster ticketing services in order to book acts promoted by Live Nation. They also have to make customer data available to existing customers who switch ticketing services or to other promoters under certain circumstances.

The bottom line, though, is that the two companies were allowed to merge. So, does this mean that the Obama administration has abandoned its vow to enforce the antitrust laws and we’re going to see the Reagan/Bush eras of vanishing antitrust enforcement again? I don’t think so. What we have here is exactly what we ought to have, i.e., two private companies being allowed to pursue the merger, but with competition in the market protected. In fact, the settlement itself is structured so that there should be significantly more competition in the market than there would have been had the transaction never happened. Still, we'll have to wait and see just how all this plays out because, as Puff Daddy sang, "It's All About the Benjamins.""

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, February 06, 2010

Denying Arar opportunity for redress undermines US justice system
2:16 PM ET

Andrea Prasow [Senior Counterterrorism Counsel, Human Rights Watch]: "On February 1, 2010, Maher Arar asked the US Supreme Court to overturn a lower court ruling that he cannot sue federal officials for damages even though they allegedly conspired with Syrian officials to subject him to torture in Syria. A powerful dissent [PDF file] by Judge Guido Calabresi in the Second Circuit's en banc review of the case criticized the majority for "utter subservience to the executive branch" and engaging in "extraordinary judicial activism" to deny Arar relief.

Arar, a Syrian-born Canadian citizen, was mistakenly identified as a terrorist by Canadian authorities while transiting through JFK International Airport in New York. Bush administration officials sent him to Syria where he was detained, interrogated and tortured for almost a year before being sent back to Canada. The Canadian government engaged in an exhaustive public inquiry regarding Canada's involvement in the matter, concluded that Arar had no connection to terrorism, and awarded him a multi-million dollar settlement. Yet the US government has done nothing to provide Arar with any form of redress – nor even acknowledged any wrongdoing.

Arar's case is an important one for the Obama administration. In the past year, the administration has done little to hold former officials accountable for authorizing torture or to provide redress for victims of torture. Attorney General Eric Holder initiated a preliminary investigation into CIA abuses, but it appears to be limited to "unauthorized" interrogation techniques and will not examine wrongdoing up the chain of command. The Justice Department's Office of Professional Responsibility (OPR) investigated possible ethical misconduct by its attorneys in connection with the "torture memos" and completed a draft of its report in December 2008. Yet despite the Attorney General's promise to Congress that the OPR report would be available by the end of last year, it still has not been released. And instead of repudiating renditions to foreign countries based on unenforceable and ineffectual "diplomatic assurances" that a person will not be subjected to torture, the task force charged with reviewing interrogation policy recommended that the US continue such transfers based on those assurances.

Nor have individuals who have suffered abuse been successful at obtaining redress before the courts. In asserting that even meritorious litigation should be summarily dismissed if it might lead to revelations of classified information, the Obama Justice Department has taken what it acknowledged in at least one case is "exactly" the same position as the Bush administration. Its overbroad reading of the "state secrets" privilege denies torture victims the opportunity to even have their case considered by a federal judge.

Civil suit for money damages is but one means of redress for victims of torture. For Maher Arar, it is the only remaining avenue available to him in the US. The Obama administration now has the opportunity to alter its opposition to his suit to permit some form of redress. And if it does not, there is a risk the Supreme Court could interpret statutes granting some officials immunity to mean that victims of torture can never successfully hold their torturers accountable. This would be a great tragedy for the fundamental right to redress for official wrongdoing, a foundation of the US justice system."

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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Haiti's reconstruction must proceed with respect for the population's rights
12:07 PM ET

Lisa Haugaard [Executive Director, Latin America Working Group]: "The United States and the international community's response to the Haitian earthquake must not only be generous, long-term and sustainable. It must also respect and promote rights.

To "rebuild with rights," a starting place might be considering these principles.

Recovery should be Haitian-led. It should be designed and implemented with the leadership of the Haitian government and the active participation of Haitian civil society organizations. Reconstruction aid should be transparent.

Reconstruction should be equitable and strengthen rights. It should be conducted in an equitable manner, respect internationally recognized labor rights, not prioritize wealthier areas, and rebuild a more equitable society. Reconstruction should promote more accountable government and strengthen existing human rights protections.

Relief and reconstruction efforts should protect vulnerable populations. The UN Guiding Principles on Internal Displacement [PDF file] must be used as the framework for assistance to the displaced, with special attention to the needs of women and children.

Orphans and all children should be protected. Family reunification in-country should be prioritized, and measures taken to prevent human trafficking.

Donors must not take with one hand while providing with the other. Debt cancellation should be provided and aid should come not as loans, but as grants.

Military roles in relief and reconstruction must be kept to a minimum. While there is an important role for the military in the immediate aftermath of a disaster of this scale, civilian authorities must take leadership, and military involvement should be phased out as soon as is practical.

A long-term vision must drive reconstruction. Reconstruction should be focused on restoring sustainable livelihoods, creating a more decentralized, balanced development, and mitigating risks from future disasters.

In the United States, Partners in Health/Lanmi Lasante and five other human rights and humanitarian groups urged a rights-based approach to relief and recovery efforts, including "Empowering all strata of the Haitian population to participate in decision making at each level of the aid and development process, from the initial needs assessment to project planning, implementation, and evaluation." Twelve US humanitarian and human rights organizations called [PDF file] on the Obama Administration to provide generous assistance that builds on existing plans, promotes sustainable development, and protects vulnerable populations. UN High Commission for Human Rights Navy Pillay called for "re-constructing and strengthening the national human rights protection systems through an effective and independent judiciary and a law enforcement apparatus respectful of human rights."

Carrying out such a rights-based approach is never easy, and will be extremely difficult in the aftermath of the earthquake in Haiti, but the international community, working in partnership with the Haitian government and civil society, must aim high."

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, February 05, 2010

US support for Lobo government undermines Latin American democracy
10:35 AM ET

John Green [Senior Research Fellow, Council on Hemispheric Affairs]: "When Honduran President Porfirio Lobo predictably chose several days ago to pardon the military leaders involved in the June 28, 2009 coup against his predecessor, President Manuel Zelaya, he was staying true to traditional Central American form. Lobo, who supported the coup, was "elected" under conditions that seem to take the region back to the heady Cold War days of the 1980s, Ronald Reagan, Contras, and Honduras' very own death squad, the Battalion 3-16. The majority of Hondurans boycotted the elections, as did reputable international observers. Many candidates for other offices withdrew, and despite State Department insistence that the process was perfectly transparent, the UN declared that conditions for a fair election were not present. And just to further dramatize the scene, there were various political assassinations before and after the contest.

It is also likely that the Lobo administration, along with its backers, is intent on reversing the direction of the Zelaya years. No more talk of social justice, or new terms for debt, or pesky ideas about how to protect the public sector from more IMF sanctioned privatization, or serious proposals to reform a horrific Judiciary. Despite the hundreds of thousands of protesters in a number of marches, the country seems back on track to the past. There are even growing paramilitary protest squads back in place to deal with the dissenters. Meet the new Honduras, the quintessential "Banana Republic."

While the Obama administration originally stood with the rest of the international community in condemning the coup and called for a restoration of democracy, it has seemingly begun to challenge the spirits of its forerunners. It has been pushing other presidents in the hemisphere to recognize the Lobo government, while Secretary of State Clinton cited questionable figures from the illegally-appointed Honduran Supreme Electoral Tribunal to justify the election. By breaking ranks with the bulk of Latin America's democratically-elected governments on confronting the Honduran crisis with democratic substance and not just form, Barrack Obama's administration had squandered whatever hope was left for a progressive turn in US-Latin American relations. The White House seems to be telling the world that nothing new on this score will be coming out of Washington D.C."

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, February 04, 2010

Proposed French ban on burqas alienates Muslim minority
2:13 PM ET

Angela C. Wu [International Law Director, The Becket Fund for Religious Liberty]: "The French Parliament has issued a report recommending a ban on the burqa in government-run venues such as public transportation and hospitals. The 200 page report, published on January 26th by a special committee of parliamentarians, was commissioned to study the role of the veil in France and came just shy of recommending a ban in all public places in France. The burqa or niqab is a full face covering that some Muslim women wear in public. President Nicolas Sarkozy declared in a speech to the French Parliament last June that the burqa is a symbol of women's "subservience," and that it is incompatible with the "French republic's idea of women’s dignity." The debate over the burqa, fueled by Sarkozy's speech, is a part of a national campaign asking what it means to be French.

Unfortunately, a burqa ban will not ease France's national identity insecurities, nor will it aid the integration of the country's sizeable Muslim minority. More importantly, the debate fails to take into account the possibility that the burqa could be for some women a sincere nonviolent expression of conscience. Ironically, the ban disrespects the individual conscience of pious Muslim women by assuming they can't make their own decisions.

France is a signatory to the International Covenant on Civil and Political Rights (ICCPR), in which Article 18 requires the protection of freedom of thought, conscience, and religion. The official commentary to Article 18 makes it clear that the "freedom to manifest religion or belief" includes the "wearing of distinctive clothing or headcoverings." Article 18 also accounts for the balancing of rights against other interests, such as "public safety, order, health or morals, or the fundamental rights and freedoms of others." However, the debate surrounding the burqa raises the question of the motives behind the ban. Without accommodations for conscience and a clear vision of some legitimate public interest at stake, the French will be making it clear to its own citizens and to the world that the ban is a pretext for alienating Muslims.

The uproar over the burqa ban is an example of the majority expressing its insecurity by making use of an easy political target: a very small, distinct minority of about 2000 women in France who wear the veil. The ban will affect so few people that it will be nearly invisible except as a political talking point."

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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Iranian leaders use violence and manipulate legal system to quell opposition
1:57 PM ET

Neil Hicks [International Policy Advisor, Human Rights First]: "The leaders of the Islamic Republic know well the value of violence and brutality as political control mechanisms. In recent months, the authorities have unleashed random beating of protesters, arbitrary detention and torture, apparently including rape of detainees, running down protesters with motor vehicles, shooting with live ammunition into crowds of unarmed demonstrators resulting in fatalities, and apparent targeted killings. The recent executions of two young men, Mohammed Reza Ali Zamani and Arash Rahmanipour, after legal proceedings that violated Iranian law as well as international standards, and the threat, encouraged by hardliners like Ayatollah Jannati, the Chair of the Council of Guardians, to execute more alleged protesters, are a piece of this long-established strategy of state terror to quell dissent.

But the authorities are trying to achieve more through the earlier show trials and these recent exemplary executions. Not only do they wish to sow fear and deter further protest, they also hope to take control of the narrative of the post-election protests that have produced the deepest political crisis in Iran since the early years of the Islamic Republic.

Leaders of the opposition movement like presidential candidates, Mir Hossein Mousvai and Mehdi Karroubi, and former president Mohamed Khatami, have sought to characterize the opposition as the true defenders of the Islamic Republic and of the constitutional and democratic values that were the aspirations of some of its founders. The color of the opposition is Islamic green; the opposition does not hesitate to claim Muslim holy days as occasions to advance its cause and there is a contest over who can claim the legacy of the late founder of the Islamic Republic, Ayatollah Khomeini. There is some irony, and not a little justice, in the spectacle of Khomeini's flexibility and chameleon qualities – traits that he used ruthlessly to outwit and outmaneuver his one time leftist and liberal democratic allies in the overthrow of the monarchy and to secure his grip on power – now being used by the opposition to challenge the absolute authority of the office of Leader of the Islamic Republic that he created for himself.

To counter this narrative the authorities are anxious to demonstrate that the opposition has no legitimacy, is subservient to foreign interests and that its prime instigators are unpopular violent opposition groups. Prior to his execution, Arash Rahmanipour confessed to his role in plotting post-election protests on behalf of the People's Mojahedine of Iran, an organization associated with acts of political violence and terrorism in Iran, much derided among Iranians for having sided with Saddam Hussein against Iran in the Iran-Iraq war. In fact, Rahmanipour seems to have been a confused young man who had only slight contact with the PMOI and no involvement whatsoever in the post-election protest movement. (He had, in fact, been in prison since March 2009, three months before the elections even took place.) Zamani was convicted of being a member of an obscure organization supportive of the restoration of the monarchy and also has no connections to the opposition movement. The authorities seem to be operating on the principle that if a lie is repeated often enough and loud enough, people will come to believe it.

Time will tell whether the opposition will be cowed by these crude tactics. The anniversary of Khomeini's triumphant return to Iran and the creation of the Islamic Republic 31 years ago is fast approaching. There will be further protests to mark this occasion and the authorities will again make the calculation of how much violence is needed to contain them. Opposition leaders are emphasizing that the forces that made the revolution were strengthened when the Shah's security agencies used excessive force against demonstrators and were swept aside by public outrage. There are no doubt arguments among historians as to whether that is an accurate description of events three decades ago; even more unknown is whether that history will repeat itself in 2010 with the regime's brutal overreach sowing the seeds of its own downfall."

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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Wednesday, February 03, 2010

US appeal of Blackwater case dismissal a step towards accountability
6:46 PM ET

Shaista Shameem [Chairperson/Rapporteur, Working Group on the use of mercenaries, Special Procedures Branch - OHCHR]: "The United Nations Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the rights of peoples to self-determination welcomes the decision announced by the US Vice President Joe Biden to appeal a ruling dismissing charges against the five Blackwater guards in connection with the shooting in Nissour Square in Iraq in 2007 during which at least 14 people were killed and a further 20 injured, many seriously.

The Working Group expressed its concerns in a public statement released on January 7, 2010, following the decision of Judge Ricardo M. Urbina of the Federal District Court for the District of Columbia on December 31, 2009 to dismiss the indictment against Blackwater. The Group stated that while it respected the independence of the United States judiciary and the requirements for due process, it felt such a decision may lead to a situation where no one would be accountable for grave human rights violations.

During its visit to the United States in July 2009, but the Department of State and the Department of Defense stressed to the Working Group the importance of ensuring oversight and accountability of private security companies working on its behalf. The authorities explained the legislative steps taken by the Congress following the 2007 Blackwater shooting in Iraq to expand and clarify jurisdiction over offenses committed by private security and military contractors operating in areas of armed conflict and in peacetime.

While these news statutes virtually permit the US justice system to punish all crimes prohibited by human rights or humanitarian law, recent litigation has demonstrated that it remains a challenge to do so.

The Working Group hopes that through the appeal of the Blackwater dismissal, the US justice system will be able to consider all evidence gathered in this case in accordance with the law."

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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