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Legal news from Wednesday, January 19, 2005

Federal law authorizing state same-sex marriage bans upheld
Christina Gheen on January 19, 2005 9:15 PM ET

[JURIST] The US District Court for the Middle District of Florida Wednesday upheld a federal law allowing states to ban same-sex marriages. The ruling is believed to be the first to formally uphold the 1996 Defense of Marriage Act [THOMAS text; Wikipedia article]. The case arose from the claims of two women [St. Petersburg Times backgrounder] who wanted their Massachusetts same-sex marriage [MA Trial Court Law Libraries materials] acknowledged by the state of Florida, where the state law [text] specifically bans same-sex unions. Ellis Ruben, the attorney representing the women, has vowed to take their case to the US Supreme Court. Judge James S. Moody [official profile] wrote that the government has a legitimate interest in banning same-sex marriages to promote "stable relationships" for children. The full text of the ruling is not yet available online. AP has the full story.

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Guantanamo detainees tell lawyers of abusive conditions
Christina Gheen on January 19, 2005 9:04 PM ET

[JURIST] Defense lawyers representing 12 Kuwaiti nationals [Project Kuwait Freedom profiles] detained in Guantanamo Bay said Wednesday that their clients looked emaciated and had complained of abuse, including physical abuse, torture and humiliation. The attorneys, Kristine Huskey and Thomas Wilner, made the observations after their first interviews with the detainees since the US Supreme Court ruled in Rasul v. Bush [PDF] last June that the prisoners had the right to contest their detention. Huskey commented that the men were startlingly thin and stated all claimed to have been taunted by guards and denied medical treatment. A Pentagon spokesperson said the prisoners were given regular meals and are provided with excellent health care. In addition, the Army claimed that some of the more aggressive techniques used against the detainees disclosed in 2002 FBI memos [JURIST report] have been stopped. AP has more.

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BREAKING NEWS ~ Ukraine Supreme Court rejects last Yanukovych election appeal
Bernard Hibbitts on January 19, 2005 8:37 PM ET

[JURIST] AP is reporting that the Ukrainian Supreme Court has rejected a last appeal by losing candidate Viktor Yanukovych against the December 26 presidential election result. The decision definitively clears the way for formal publication of the election results in the official Holos Ukrainy and Uryadovyi Kuryer newspapers. The Maidan civic advocacy website in Kyiv offers a log of Wednesday's Ukraine Supreme Court session [in Ukrainian]. Maidan also reports that winning candidate Viktor Yushchenko's inauguration as president will likely take place Satursday, January 22.

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Federal court dismisses Gitmo prisoners' claims of habeas
Christina Gheen on January 19, 2005 7:29 PM ET

[JURIST] US District Judge Richard Leon [official profile] Wednesday dismissed the claims of seven Guantanamo Bay prisoners who had contested the fairness of their continued detention. Judge Leon said in his opinion [PDF]: "To the extent that these non-resident detainees have rights, they are subject to both the military review process already in place and the laws Congress has passed defining the appropriate scope of military conduct towards the detainees." He indicated that any extension or modification of the detainees rights should be done by the political branches. In addition, the opinion stated foreign nationals captured and detained by US forces outside the US have no constitutional rights. The US DC District Court is still deciding whether similar claims by 10 other Gitmo detainees can be heard. Reuters has more.

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SEC, former ImClone CEO settle insider trading case
Bernard Hibbitts on January 19, 2005 6:13 PM ET

[JURIST] The Securities and Exchange Commission [official website] announced Wednesday that former ImClone Systems [corporate website] CEO Sam Waksal has agreed to pay $3 million to settle charges in the insider trading scandal that sent Martha Stewart to jail [JURIST coverage]. Waksal and his father will also be liable for the repayment of $2 million in ill-gotten gains. The settlement, when approved by the court, resolves the insider trading charges against the Waksals. Read the SEC press release, the SEC litigation release and the amended complaint against Waksal. Reuters has more.

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UPDATE ~ UK soldier in Iraqi abuse scandal "following orders"
Bernard Hibbitts on January 19, 2005 6:07 PM ET

[JURIST] Updating a JURIST report from earlier today, Cpl. Daniel Kenyon, one of the three UK soldiers facing court martial [JURIST report] for the alleged abuse of Iraqi civilians, has blamed his commanding officers for giving orders that led to the alleged offences [BBC photos] at a camp outside Basra. Kenyon's lawyer told the military court Wednesday that camp commander Maj. Dan Taylor implemented a plan called "Operation Ali Baba" and told his troops to catch looters and "work them hard." BBC News has more. In a related story, British PM Tony Blair called photos that depict the alleged abuse of Iraqis [JURIST report; photos from BBC News] "shocking and appalling." Blair said that he hoped that the court-martial of the three soldiers would show that "we do not tolerate this type of activity." The Guardian has more.

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Specter backs asbestos compensation fund, liability cap
Russell Adkins on January 19, 2005 4:52 PM ET

[JURIST] Incoming Senate Judiciary Chairman Arlen Specter [official website], R-PA, announced Wednesday that he is backing a proposed $140 billion fund to compensate asbestos victims and cap the damages liability of the companies targeted in asbestos lawsuits. Labor interests claim the fund is about $9 billion short of the amount needed to adequately compensate victims, but Specter maintains that should the fund run dry, claimants would be able to return to court, a caveat that is disliked by corporate interests seeking finality to the thousands of asbestos suits that have sent many businesses into bankruptcy. Specter's proposal follows similar, but unsuccessful attempts last year to end asbestos litigation, which failed because the competing interests could not reach a compromise. Reuters has more. Senate Judiciary Ranking Democrat Sen. Patrick Leahy, D-VT [official website], is reportedly in talks to join Specter's proposal.

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Confirmation vote delayed for AG nominee Gonzales
Jeannie Shawl on January 19, 2005 1:57 PM ET

[JURIST] Democrats on the Senate Judiciary Committee [official website] have forced a one-week postponement pf the vote on Alberto Gonzales' [official White House biography] nomination as attorney general because Gonzales hasn't answered all of the committee's questions. Gonzales submitted written answers to committee questions [JURIST report] yesterday, but those answers have been criticized as evasive. Senator Patrick Leahy responded to Gonzales' submissions by saying "This was another missed opportunity for straight answers and accountability. I regret seeing Judge Gonzales fall into the same pattern of stonewalling and non-cooperation that we have seen far too often from this Administration and from the current attorney general." Read Leahy's comment on the written replies [Leahy press release]. In asking for a delay in voting on the nomination Wednesday, Senator Edward Kennedy said:

Mr. Gonzales should not be listed on the agenda today, because he still has not provided serious, consistent, and responsive answers to this Committee's questions.

The questions which we have asked, and which Mr. Gonzales has declined to answer or evaded, address a matter of vast importance that goes to the heart of what America stands for in the world, and the world is watching what we do with this nomination.

For decades, other nations have respected the United States as a leader on human rights, but the torture and other abuse of prisoners in Iraq and Guantanamo have done immense damage to that reputation. The extreme and irresponsible claims in the Bybee Memorandum [text, PDF] have raised questions about our commitment to the rule of law. How can this Committee not insist on full and forthright answers from the person who asked for the Bybee Memorandum in the first place, and who has been nominated to be the next Attorney General of the United States?...

Our Committee should not acquiesce in such gross evasion and non-responsiveness. If we are to meet our constitutional responsibility in the confirmation process, we must insist that Mr. Gonzales provide responsive answers to these fundamental questions. He should not be listed on the agenda for a Committee vote on his nomination until he does so.
Read Senator Kennedy's statement to the judiciary committee. AP has more.

8:59 PM ET - Gonzales' written responses to questions are now online courtesy the DC Supreme Court litigation firm of Goldstein & Howe. Review answers to questions by Senators Biden, Coburn, Durbin (Part I;II), Feingold, Feinstein, Graham, Grassley, Hatch, Kennedy (Part I;II;III), Kohl, Leahy, Levin, Schumer, Sessions and Specter.

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Same-sex couple files for marriage license in Moscow
Jeannie Shawl on January 19, 2005 1:53 PM ET

[JURIST] Two Russian men have unsuccessfully tried to register for a marriage certificate in Moscow in an effort to provide legal grounds to challenge the Russian family code [text, in Russian]. Next week, regional MP Edvard Murzin, who says he is not gay but is trying to promote gay rights, and magazine editor Ed Mishin will receive an official written rejection, which they will use to challenge Russia's marriage law in the Russian Constitutional Court [official website]. According to Mishin, "the Russian constitution [text] does not say that people of the same sex cannot get married. It says in black-and-white that sex-, race- or religion-based discrimination is banned." BBC News has more. From Russia, MosNews has local coverage.

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Federal judge dismisses Saudi Arabia as defendant in 9/11 litigation
Jeannie Shawl on January 19, 2005 1:25 PM ET

[JURIST] US District Judge Richard Casey has dismissed Saudi Arabia, its defense minister and its ambassador to the UK as defendants in the litigation stemming from September 11th terrorist attacks, ruling that all have immunity from litigation. Judge Casey is considering pre-trial matters in eight consolidated cases brought by family members of those killed in the September 11th attacks, survivors and insurance carriers. The plaintiffs are suing over 200 defendants they say helped fund and support Osama bin Laden and al Qaeda. Casey also dismissed several other defendants, including several banks, saying there was no basis to hold the banks liable for injuries resulting from attacks funded by money passing through the institutions on regular banking business. Casey will allow a claim to proceed against the Saudi Binladen Group [corporate website], the successor to a construction company founded by bin Laden's father, because additional discovery is necessary to determine whether the company "purposefully directed its activities at the United States." Read the District Court ruling [text, PDF] and additional court rulings in the litigation from the US District Court for the Southern District of New York. AP has more.

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Corporations & securities brief ~ Jury selection begins in ex-WorldCom chief's trial
Amit Patel on January 19, 2005 1:23 PM ET

[JURIST] Leading Wednesday's corporations and securities law news, potential jurors for the trial of former WorldCom Inc. [corporate website] chief Bernard Ebbers were questioned today about any financial ties to the company and their knowledge of the case. Ebbers faces charges of conspiracy, fraud and making false filings to the SEC over the $11 billion accounting fraud at WorldCom. Read the Ebbers indictment [PDF]and the superseding indictment which added six charges [PDF]. AP has more.

In other news...

  • CMS Energy Corp. reported to the SEC [official website] that dangerous toxins seeping into Lake Michigan could cost the company more than $45 million to clean up. The Detroit Free Press has more.

  • Global semiconductor giant Intel Corporation [corporate website] announced a major reorganization of its business structure, which will create two new divisions. The company is aiming to speed up the introduction of new products. Read the Intel press release announcing the reorganization. Newsfactor Network has more.

  • A securities fraud class action complaint has been filed against TASER International, Inc. [corporate website] and certain of its senior officers and directors on behalf of purchasers of TASER's securities during the period between November 4, 2004 and January 6, 2005, in the United States District Court for the District of Arizona [official website]. The action is related to a violation of the Securities Exchange Act of 1934. MarketWire has more.

  • The NASD [official website] has expelled Boca Raton-based brokerage LH Ross [financial website] for fraud and other violations over the sale of unregistered self-offerings. The group has ordered the firm to pay a $500,000 fine and more than $11 million in restitution to investors. Read the NASD press release . AFX has more.
Click for previous corporations and securities law news.

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BREAKING NEWS ~ Louisiana high court reinstates state marriage amendment
Jeannie Shawl on January 19, 2005 12:38 PM ET

[JURIST] AP is reporting that the Louisiana Supreme Court has reinstated the an amendment to the state's constitution that bans same-sex marriage.

12:53 PM ET - In a unanimous decision, the Louisiana Supreme Court [official website] has reinstated a state constitutional amendment [text, PDF] that would ban same-sex marriages and prevent the state from recognizing any legal status for common-law relationships, domestic partnerships or civil unions for all couples. The amendment, approved by voters last September [JURIST report], was struck down [JURIST report] for violating a provision in the Louisiana constitution [text] that an amendment should only cover one subject. The state Supreme Court ruled Wednesday that "each provision of the amendment is germane to the single object of defense of marriage and constitutes an element of the plan advanced to achieve this object," putting the amendment in the constitution. AP has more.

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BREAKING NEWS ~ Supreme Court rejects Newdow inaugural prayer challenge
Bernard Hibbitts on January 19, 2005 11:44 AM ET

[JURIST] FOX News is reporting that the US Supreme Court has rejected Michael Newdow's bid for an injunction banning prayer at the Presidential inaugural ceremonies January 20th. Newdow asked the Court to intervene [JURIST report] after US District Judge John Bates denied Newdow's original petition [JURIST report] in a ruling [PDF text] Friday, saying that he was not likely to succeed on the merits of his claim that inaugural prayers represent an unconstitutional violation of the separation of church and state. Read the original complaint [PDF] and additional inauguration case materials on Newdow's website focusing on his efforts to eliminate the words "Under God" from the current Pledge of Allegiance.

12:44 PM ET - From DC, Lyle Denniston reports on Goldstein & Howe's SCOTUSblog that Chief Justice Rehnquist made the ruling:

Rehnquist did not act on Newdow's separate request for the Chief Justice's recusal from acting on the injunction request. The Court officially noted that the suggestion of recusal has merely been "received," indicating that no action would be taken on it.
Newdow had requested that Rehnquist, designated as the justice to hear emergency appeals from the DC Circuit, recuse himself, alleging that because he is scheduled to perform the swearing-in ceremony he had a conflict of interest.

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BREAKING NEWS - Rice approved by Senate Foreign Relations Committee
Bernard Hibbitts on January 19, 2005 11:39 AM ET

[JURIST] The Senate Foreign Relations Committee has voted to approve the nomination of Condoleezza Rice to be secretary of state. The nomination now goes for the full Senate for its formal approval.

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Polling places in Iraqi insurgent centers to be kept secret
Bernard Hibbitts on January 19, 2005 9:24 AM ET

[JURIST] A US general speaking from Baghdad Tuesday said that Iraqis would be able to vote in the cities of Fallujah [BBC profile] and Ramadi [Wikipedia profile], both scenes of repeated insurgent attacks against Iraqi and US targets, but that for security reasons the location of polling places would be kept secret until the last minute. Lieutenant General John Sattler [DOD profile], commander of the 1st Marine Expeditionary Force [official military website], also said that former residents of Fallujah now homeless after fighting there might be able to vote elsewhere. Watch recorded video of his briefing from the Department of Defense. Fallujah and Ramadi are in Anbar province, an area which Iraqi officials and American officers had earlier suggested might be too dangerous to permit safe voting. Some 500,000 Iraqis in the province may be eligible to vote. AFP has more.

In related developments, the UN's chief election adviser in Iraq, Carlos Valenzuela, has said that although intimidation of election workers by insurgents was very serious, the elections would go ahead as planned January 30 unless there were sustained attacks forcing mass resignations or making the vote otherwise impossible. AP has more. Meanwhile US Ambassador to Iraq John Negroponte [official profile] admitted in a statement Tuesday that what he called a "ruthless campaign of terror and intimidation" was "taking its toll", but that "we are confident that elections can and will be conducted successfully. The Independent Electoral Commission of Iraq has developed a number of strategies for dealing with electoral procedures in areas where security conditions will prevent normal polling from taking place, to ensure that participation in the elections is inclusive." Read Negroponte's full statement. The US Embassy in Baghdad has issued a factsheet outlining the criteria for candidacy to Iraq’s Transitional National Assembly under the Iraqi interim constitution (the Transitional Administrative Law) and the timeline for the Assembly to complete its work in drafting a constitution; an additional factsheet sets out relevant electoral law under Coalition Provisional Authority Order Number 96.

3:08 PM ET - According to Hussein al-Hindawe, head of the Independent Electoral Commission of Iraq [official website], the location of polling stations will be handwritten on election posters and will not be revealed until just before the vote. Other measures to be taken to ensure security include the reduction in the number of polling stations from 8,000 to 5,000 and the parking of ambulances near polling stations. Organizers are particularly concerned with threats made by Sunni insurgents that voters would be beheaded. IRIN has more.

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International brief ~ Yushchenko inauguration expected late this week
D. Wes Rist on January 19, 2005 8:48 AM ET

[JURIST] In Wednesday's international legal news, Viktor Yushchenko [BBC profile; presidential campaign website in Ukrainian], the pro-western reformer who led a popular charge to see the original November Ukranian presidential election results reversed on grounds of fraud, will most likely be inaugurated as the new president of Ukraine [official presidency website] on Friday or Saturday of this week. The key break in the face-off between Yushchenko and Viktor Yanukovych [BBC profile], former Ukranian Prime Minister and initial winner of the November election, came Tuesday when the Ukranian Supreme Court ruled that results from the December re-vote, which heavily favored Yuschenko, could be published in the press [JURIST report]. Lawyers for both sides have acknowledged that once the results are published, the Supreme Court cannot rescind them. As the results are expected to be published Thursday, officials said that the inauguration could occur as early as Friday. UPI has more.

In other international legal news...

  • Pending his inauguration as Ukranian president, officials for Yushchenko have announced that he will pursue plans to change Ukraine's policy towards the European Union [official website] from one of 'neighborhood' to one of 'membership'. An EU-Kiev meeting scheduled for next week will likely include a preliminary discussion of the eventual inclusion of the Ukraine into the EU bloc. If Ukraine [official governmental website] were to pursue membership, the country would have to endure many years of review by the EU, the European Ministers of Parliament, and possibly even votes by current member-nations. EU Observer has more.

  • The UK Home Office [official website] announced plans Wednesday to seek agreements with a series of countries to allow the deportation of suspects held in the UK on terrorism charges without the suspects facing torture upon their return. The decision comes after a December ruling [JURIST report] by the UK House of Lords that the indefinite detention of 12 men in Belmarsh and Woodhill prisons under the Anti-Terrorism, Crime and Security Act [official text] was unlawful. The UK has faced a legal dilemma concerning the men - they did have not had enough evidence to prosecute them but were unable to deport them back to their home countries as they might face human rights violations. The UK's obligations under the European Convention on Human Rights [official text, PDF] prevents the return of individuals to a country where their human rights might be violated. Home Secretary Charles Clarke [official profile] said that the Home Office is pursuing individual assurances from each country involved concerning the treatment of the detained men. The Times has Clarke's interview here.

  • Jan Pronk, head UN envoy to Sudan, postponed talks Wednesday with John Garang, chairman of the Sudan People's Liberation Army [faction website], and instead met with African Union [official website] officials to discuss the deployment of peacekeepers to the area. Garang was supposed to arrive in Rumbek, the new southern capital, but was delayed, prompting Pronk to fly to Ethiopia to meet with AU officials. The peace deal signed just weeks ago, allows for the deployment of peacekeepers in Southern Sudan, in order to assist in the creation of the autonomous southern region. UN Secretary-General Kofi Annan will address the Security Council later this week and will present his report on the situation in Sudan. The report is expected to request somewhere between 9,000 and 10,000 peacekeepers to be deployed to the area. JURIST's Paper Chase has continuing coverage [JURIST country archive] of Sudan. The Sudan Tribune has local coverage.

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California holds first execution in three years
Jeannie Shawl on January 19, 2005 8:19 AM ET

[JURIST] California prison officials executed three-time murderer Donald Beardslee Wednesday morning, the first execution in California in three years. Following a Board of Prison Terms recommendation [PDF], California Governor Arnold Schwarzenegger [official profile] denied clemency to Beardslee, saying:

The state and federal courts have affirmed his conviction and death sentence, and nothing in his petition or the record of his case convinces me that he did not understand the gravity of his actions or that these heinous murders were wrong. I do not believe the evidence presented warrants the exercise of clemency in this case.
Read Schwarzenegger's clemency decision [PDF; accompanying press release]. Beardslee's attorney's had argued that he was suffering from mental illness when he killed two young women while on parole for the murder of another woman. Beardslee's request for a stay of execution was also rejected by the US Supreme Court Tuesday. Reuters has more.

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UK Iraqi abuse photos emerge as court martial continues
Jeannie Shawl on January 19, 2005 7:43 AM ET

[JURIST] A British court martial has released over twenty pictures that seem to show British troops abusing Iraqi civilians. The photos emerged as three Royal Regiment of Fusiliers soldiers are facing nine charges [JURIST report, charge list from BBC News] for allegedly abusing looters detained at a camp outside Basra in May 2003. Responding to the photos [selected photos from BBC News], head of the British Army Gen. Sir Mike Jackson [official Ministry of Defense profile], condemned the alleged acts of abuse [BBC report] committed by UK soldiers in Iraq. In Jackson's statement [MoD text], the general refused to comment on the ongoing court martial, but said "We condemn utterly all acts of abuse. Where there is evidence of abuse, this is immediately investigated." BBC News has more on the court martial and the abuse photos.

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Legal agenda and live webcasts ~ Wednesday, Jan. 19
Chris Buell on January 19, 2005 5:30 AM ET

[JURIST] Here's a run-down of law-related events, expected developments and live webcasts on JURIST's docket for Wednesday, Jan. 19.

The US Supreme Court will hear 10 AM ET oral arguments in City of Ranchos Palos Verdes v. Abrams [case backgrounder from Duke Law School], in which it will resolve a circuit split over whether limits on land-use authority under the federal Communications Act [text, PDF] may be enforced in an action for damages. The ABA has merit briefs from the case. Following that, the Court will hear arguments in Clingman v. Beaver [case backgrounder from Duke Law School], in which it decides whether an Oklahoma elections law restricting those registered with a party, but not those unaffiliated from voting in another party's primary, is a violation of the First Amendment [text]. The ABA has merit briefs filed in the case.

In the Senate, confirmation hearings for Secretary of State nominee Condoleezza Rice continue today before the Senate Foreign Relations Committee [official website] beginning at 9 AM ET. A live webcast is available from the Committee.

Montana Gov. Brian Schweitzer [official website] is scheduled to give his State of the State address.

At the International Criminal Tribunal for the Former Yugoslavia, the trial of former President Slobodan Milosevic [ICTY case background] continues today. A webcast of proceedings will begin at 10 AM local time (4 AM ET). Following that, the trial of Fatmir Limaj and others [ICTY case background] will continue. A webcast will begin at 2:45 PM local time (8:45 AM ET).

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For more legal news check the Paper Chase Archive...


Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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