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Legal news from Wednesday, February 23, 2005

FCC rules AT&T must pay federal fees
Christina Gheen on February 23, 2005 9:14 PM ET

[JURIST] In a ruling against AT&T Wednesday, the Federal Communications Commission (FCC) [official website] determined that the company must pay fees associated with its pre-paid calling cards. The fees go to local telephone companies to cover costs to connect the call and to federal programs that subsidize rural telephone and Internet service. AT&T tried to avoid the fees by characterizing the calling cards as an "information service" by adding audio advertisements when a user placed a call. The FCC disagreed and determined the advertising was incidental [order text, PDF] to the main purpose of the cards. AT&T owes approximately $160 million in back fees to the federal government. An additional $340 million is due to local companies, who will have to file individual suits to recover the money. AP has more.

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Judge issues sentence in Mexico's first oral public trial
Christina Gheen on February 23, 2005 8:53 PM ET

[JURIST] A Mexican judge in the Nuevo Leon Wednesday found a man guilty of drunk driving in the nation's first oral and public trial. In June, Nuevo Leon [official government website in Spanish] was the first Mexican state to pass legislation that allows public and oral trials. Under the system currently in place, however, judges usually review files created by the defense and prosecution and then issue written verdicts. AP has more.

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Mexican court dismisses genocide charges against former president
Christina Gheen on February 23, 2005 8:31 PM ET

[JURIST] The Supreme Court of Mexico [official website in Spanish] upheld Wednesday a 30-year statute of limitations and dismissed charges of genocide against ex-president Luis Echeverria [official government website in Spanish]. The Court, in a 4-1 vote, held that international law against genocide does not take precedence over Mexico's national statute of limitations. Echeverria is accused of ordering a paramilitary attack on student protestors in 1971, killing 40. Prosecutor Ignacio Carrillo said that he will continue to press the genocide charges and vowed, "the resolution of this issue has not concluded." Reuters has more.

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Iranian blogger sentenced to 14 years for political opinions
Christina Gheen on February 23, 2005 8:10 PM ET

[JURIST] Prominent Iranian blogger Arash Cigarchi was sentenced to a 14-year prison term Wednesday for publishing critiques of the government on his online blog and in the international press. Cigarchi was charged with aiding and abetting hostile governments and opposition groups, endangering national security and insulting Iran's leaders. The trial, part of recent crackdown on free speech by the Iranian government, was highly criticized by human rights advocacy group Human Rights Watch (HRW) [advocacy website] because it was held in private without Cigarchi's lawyer present. In a HRW statement [text], Widney Brown, HRW deputy program director, commented, "This outrageous sentence follows the sham trial of a person who should never have been arrested in the first place." Reuters has more. The Iran Press News has local coverage.

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State legislatures attack constitutionality of Bush education plan
Christina Gheen on February 23, 2005 7:31 PM ET

[JURIST] In a bipartisan statement released Wednesday, all 50 state legislatures opposed President Bush's No Child Left Behind Act [PDF]. The statement [PDF text], issued by the National Conference of State Legislatures [official website], attacked the education program's unconstitutional extension of federal power in an area traditionally left up to state control and accused the government of coercing states into compliance. It also recommends essential changes in the measurement of student progress, the punishment for under-achieving schools, and guidelines for allowing waivers for struggling school districts. The NCSL also expressed concern that the education reform would further segregate schools and provide incentives for good teachers to leave needy schools. AP has more.

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BREAKING NEWS ~ Judge extends stay preventing removal of Schiavo feeding tube
Jeannie Shawl on February 23, 2005 4:11 PM ET

[JURIST] AP is reporting that a Florida judge has extended an emergency stay, keeping Terri Schiavo's feeding tube in place until 5 PM Friday.

10:05 PM ET - Florida Circuit Judge George Greer extended the emergency stay until 5 PM Friday, keeping Schiavo's feeding tube in place for now. The stay was originally set to expire Wednesday afternoon, but Greer said he needed time to decide whether Schiavo's parents should be allowed to pursue further efforts to keep Schiavo's husband from removing her life support. Schiavo's parents hope to show that she has greater mental capabilities than previously thought and are seeking to have Michael Schiavo removed as Terri's legal guardian. Also Wednesday, Florida's Department of Children & Families moved to intervene in the case, and the agency's involvement is said to be related to allegations that Michael Schiavo abused his wife. AP has more. JURIST's Paper Chase has ongoing coverage [JURIST Newsmaker archive] of the Schiavo case.

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Federal judge says no early prison release for Lea Fastow
Jeannie Shawl on February 23, 2005 3:59 PM ET

[JURIST] US District Judge David Hittner denied the Lea Fastow's request for an early prison release [JURIST report] Wednesday. Fastow, wife of former Enron [corporate website; JURIST Hot Topic archive] CFO Andrew Fastow, pleaded guilty last year to willfully delivering a 2000 income tax return which she knew to be fraudulent. Fastow's attorney argued that her one-year prison sentence is twice what people normally serve for the misdemeanor crime and asked the court to consider that Fastow has been serving her sentence in a maximum-security detention center, rather than a minimum-security prison as is usual for tax offenders. Judge Hittner said he could find no legal grounds for vacating Fastow's sentence and replacing it with seven months time already served. Hittner noted that "While the court recognizes Fastow . . . is serving her sentence under conditions that may be more harsh as compared to other first-time tax offenders, designation of offenders for place of imprisonment is subject to the complete discretion of the Bureau of Prisons." The Houston Chronicle has more.

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Environmental brief ~ Canada cattlemen sue US over beef ban
Tom Henry on February 23, 2005 3:40 PM ET

[JURIST] In Wednesday's environmental law news, about 500 Canadian cattlemen, mostly from Alberta, have filed 121 claims under the North American Free Trade Agreement (NAFTA) [text] seeking at least $325 million in compensation for the May 2003 US decision to halt imports of Canadian beef and cattle. NAFTA's Chapter 11 is intended to protect companies from laws that unfairly favor a nation's own businesses. The cattlemen argue that the Canada-US beef market is so integrated that closing the border had no meaningful public-health effect. Rather than close the border, and in order to protect US citizens, the US should have killed all of the Canadian cattle already in the US, a move that would have hurt the financial interests of US ranchers that owned the cattle. The US Department of State [official website] has background on Chapter 11 dispute settlement. The Seattle Times has more.

In other news,

  • The Japanese Ministry of the Environment [official website] has decided to introduce stricter regulations on diesel vehicle emissions starting in 2009. The regulations on nitrogen oxides (NOx) and particulate matter (PM) will further reduce the levels that will start to take effect this October. The standards will apply to the sale of new trucks and buses over 3.5 tons. The Yomiuri Shimbun has the full story.

  • Officials from the California Department of Toxic Substances Control [official website] announced Tuesday that they will require the Pacific Gas & Electric Co. [corporate website] to increase its cleanup efforts of groundwater contamination at a southern California site. The company, at its Topock natural gas compressor station, had disposed of chromium 6 [EPA backgrounder], a carcinogen, into percolation beds between 1951 and 1969. The company has been pumping out the contaminated groundwater, but now must increase its efforts as the contaminate has been found to be nearing the Colorado River. The Los Angeles Times has the full story.

  • The EPA [official website] seeks comments on a proposed rule [text] that may change the increments for NO2 established under the Clean Air Act [text] to prevent significant deterioration of air quality (PSD program). Comments can be made here until April 25.

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Federal appeals court overturns molestor's conviction on Sixth Amendment grounds
Jeannie Shawl on February 23, 2005 3:07 PM ET

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] has set aside the 1988 child-molestation conviction of a Nevada man, ruling that the 2004 US Supreme Court decision in Crawford v. Washington [PDF text; JURIST report] limiting hearsay statements applies retroactively and statements made by the 6-year-old victim to authorities should not have been introduced at trial. The Second and Tenth Circuits have also considered the issue and have ruled that Crawford only applied to pending or new cases, creating a split in the circuits. In its opinion [text], the Ninth Circuit wrote:

Marvin Bockting's conviction for sexual abuse and life sentences stem from a trial in which the only witness to the conduct, his six-year old stepdaughter, Autumn Bockting, did not testify at trial, but whose interview with a detective was admitted as key evidence. Autumn's statements at the interview contradicted her testimony at a preliminary hearing where she claimed not to remember what happened with her father. Admission of the interview evidence without cross-examination violated Bockting's constitutional right "to be confronted with the witnesses against him." U.S. Const. amend. VI.
AP has more.

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Former Yukos CEO to testify in court Friday
Jeannie Shawl on February 23, 2005 2:39 PM ET

[JURIST] Former Yukos [corporate website] CEO Mikhail Khodorkovsky [JURIST Hot Topic archive; BBC profile] will testify Friday [Interfax report] in his fraud and tax evasion trial. According to the latest trial update [text] from Khodorkovsky's defense website, the judge presiding over the trial has granted a recess until Friday morning to allow Khodorkovsky and his co-defendant Platon Lebedev more time to prepare for their testimony. In a related development, several prominent Russian writers, actors and academicians have written a letter [text] calling on the international community to recognize Khodorkovsky as a political prisoner. Khodorkovsky's trial has been widely criticized as retribution for the oil tycoon's political ambitions and open criticism of President Vladimir Putin. The group writes:

It is clear to us that, regardless of Mikhail Khodorkovsky?s political views, financial condition, or the crimes that he is charged with by the Prosecutor General?s office, this person has the same right to a defense as all the citizens of those countries that are signatories to the European Convention on Human Rights. In the case of Khodorkovsky, this right has not been observed so far.

Based on our observations of the trial proceedings, we have come to the conclusion that there is a political element in the prosecution of Mikhail Khodorkovsky. We appeal to the international human rights community to recognize the obvious fact: Mikhail Khodorkovsky is a political prisoner.
AFP has more.

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ICTY reveals charges against Bosnian Muslim commander
Jeannie Shawl on February 23, 2005 2:15 PM ET

[JURIST] The International Criminal Tribunal for the former Yugoslavia [official website] unveiled charges Wednesday against retired General Rasim Delic, the wartime commander of the Bosnian Muslim army during the 1992-95 conflict. Delic, who is expected to surrender to the tribunal next week, faces charges for the murder and rape of Croats and Serbs by fighters under his command and for failing to prevent crimes at the Kamenica prison camp. Reuters has more.

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Eleven NJ officials arrested in federal corruption sting
Jeannie Shawl on February 23, 2005 1:46 PM ET

[JURIST] Eleven sitting and former in northern New Jersey's Monmouth County were arrested and charged [DOJ press release] Tuesday as part of a federal corruption sting. Ten of the officials were charged with extorting cash bribes and free work from a contractor working undercover for the FBI. The eleventh official faces money laundering charges. According to Christopher Christie [official profile], US Attorney for New Jersey, 76 New Jersey public officials have been charged or convicted in a series of corruption cases over the past three years. Individual criminal complaints for the Monmouth County officials are available from the DOJ. AP has more.

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Supreme Court holds strict scrutiny applies to race-based prison regulations
Jeannie Shawl on February 23, 2005 12:53 PM ET

[JURIST] In a decision handed down Wednesday morning, the US Supreme Court [official website] has ruled that state prisons cannot temporarily segregate inmates by race, except in the most extraordinary circumstances. In Johnson v. California [Duke Law case backgrounder], the court heard an Equal Protection challenge to the California Department of Corrections' [official website] policy of racially segregating prisoners in double cells for up to 60 days when they enter a new correctional facility. The court rejected CDC's argument that the policy's constitutionality should be reviewed under a deferential standard used for prison regulations and instead held that strict scrutiny is the proper standard of review because the CDC policy is "immediately suspect" as an express racial classification. The case was remanded for review of whether the CDC policy fails to satisfy the strict scrutiny standard. Read the court's opinion [PDF text], per Justice O'Connor, along with Justice Ginsburg's concurrence [PDF text], Justice Stevens' dissent [PDF text] and Justice Thomas' dissent [PDF text]. AP has more.

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UK government manipulated legal justifications for Iraq war
Jeannie Shawl on February 23, 2005 12:45 PM ET

[JURIST] According to a special report published in Wednesday's Guardian, British Attorney General Lord Goldsmith [official profile] warned the government less than two weeks before the 2003 invasion of Iraq that the military actions could be ruled illegal. Lord Goldsmith's warning led the government to assemble a team of lawyers to prepare for legal action in an international court should the UK be prosecuted. The Guardian also reports that the 2003 parliamentary statement on the legality of an invasion [text; JURIST report] presented to the House of Lords as Lord Goldsmith's official opinion was actually drawn up in the Prime Minister's office, not the attorney general's chambers. A year ago, two British papers reported that the US encouraged Lord Goldsmith to alter his legal advice [JURIST report] on the legality of the US-led invasion of Iraq. The Guardian has more.

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UK court-martial finds two soldiers guilty of abusing Iraqi prisoners
Jeannie Shawl on February 23, 2005 12:18 PM ET

[JURIST] Two British soldiers were convicted Wednesday of abusing Iraqi prisoners at a camp outside Basra in May 2003. Daniel Kenyon, the most senior soldier on trial at the UK court-martial, was convicted of failing to report the actions of junior soldiers and for aiding and abetting an assault on an Iraqi prisoner. Mark Cooley was found guilty of disgraceful conduct of a cruel kind and of posing for photograph as though he was about to punch a prisoner. Kenyon, Cooley, and a third soldier who already admitted assault [JURIST report], will be sentenced Friday. BBC News has the charge list with verdicts. JURIST's Paper Chase has background on Kenyon's denial of the charges [JURIST report] against him and the testimony of a UK soldier who witnessed the abuse [JURIST report]. BBC News has more on the guilty verdicts.

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Corporations and securities brief ~ Fannie Mae faces new accounting troubles
Amit Patel on February 23, 2005 10:45 AM ET

[JURIST] Leading Wednesday's corporations and securities law news, Fannie Mae's federal regulator, Office of Federal Housing Enterprise Oversight (OFHEO) [official website], has found additional problems with the company's accounting practices. The OFHEO has raised concerns with the company's securities and loan accounting, consolidations, accounting for commitments and practices to smooth certain income and expense accounts. Fannie Mae [corporate website] also announced OFHEO has allowed a three month delay in the company's attempt to build a 30% capital surplus. Read the Fannie Mae press release. AP has more.

In other news...

  • Hershey Foods Corp. [corporate website], the nation's largest candymaker, announced in a regulatory filing with the SEC that it wants to change its name to "The Hershey Co." The Hershey Trust Co. will continue to hold a controlling stake in the company. AP has more.

  • According to a broker disclosure form filed with the National Association of Securities Dealers [official website], the SEC may recommend charges against former Bear Stearns [corporate website] broker Mark Hurant for his role in improper mutual-fund trading. CBSMarketWatch has more. In other news, Bear Stearns senior managing director Michael Zackman may face civil charges over his assistance to hedge funds and brokers who were engaging in abusive trading of mutual fund shares. Zackman denies the charges. In total, six former and current Bear Stearns employees are facing civil charges related to trading misconduct. The Street.com has more.

  • Medco Health Solutions Inc. [corporate website], one of the nation's largest pharmacy benefits managers, announced it will buy Accredo Health Inc. [corporate website] , a distributor of specialty drugs and services, for about $2.2 billion in cash and stock creating the nation's largest specialty pharmacy business. Read the Accredo Health press release. AP has more.

  • A Dell customer is suing the world's largest personal computer maker for pushing consumers into high-interest financing schemes, false advertising and bait-and-switch practices, fraud and deceit in its sales and advertising representations and breach of contract for unilaterally modifying terms and conditions. Dell Inc. [corporate website] had no comment on the suit. CNN has more.
Click for previous corporations and securities law news.

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Lord Chancellor approves legality of royal wedding
D. Wes Rist on February 23, 2005 10:40 AM ET

[JURIST] Lord Falconer [official profile], the Lord Chancellor of the United Kingdom and the nation's highest legal officer, issued a written statement Wednesday that he was satisfied that the Marriage Act of 1949 allowed for the Royal Family [official website] to have civil ceremony weddings. Some doubt had been raised [BBC story overview] by BBC's Panorama program that the Royal Family was prohibited from civil ceremonies under the Act. Lord Falconer acknowledged that different courts had stated different interpretations of the Marriage Act in the past, but said that those opinions had been 'overcautious' and that the UK government was satisfied that Lord Falconer's interpretation of the Act was correct. Prince Charles [official profile] and Camilla Parker Bowles, both divorced and thus barred from receiving a Church of England [official website] wedding, are scheduled to wed in a civil ceremony on April 8. BBC News has in depth coverage of Charles and Camilla, as well as local coverage of Lord Falconer's statement.

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Alanssi testifies about self-immolation in front of White House
D. Wes Rist on February 23, 2005 10:11 AM ET

[JURIST] Mohamed Alanssi testified in court Tuesday that he was trying to put "the world on notice" by setting fire to himself outside the White House [JURIST report] last November. Until his attempt at self-immolation, Alanssi was the government's star witness in its terror-funding case against Yemeni Sheik Mohammed Ali Hassan al-Moayad. Instead, he was called yesterday as a hostile defense witness. Defense counsel portrayed him as a deeply troubled individual with a shady past that was merely acting in cooperation with the FBI to receive financial reward and US citizenship. Al-Moayad is charged with supporting and attempting to fundraise for Hamas and al-Qaeda. AP has more.

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Iran claims international right to production of nuclear materials
D. Wes Rist on February 23, 2005 9:45 AM ET

[JURIST] An Iranian official has said that Iran's nuclear program does not violate international law and that Iran is merely exercising its internationally recognized right to produce nuclear material. Iranian Foreign Minister Kamal Kharrazi said that Iran was following all of the requirements of the International Atomic Energy Agency [official website] in producing its nuclear material and that the results of the process were only being used for peaceful ends, the production of energy. US Department of State officials have alleged that Iran is maintaining a secret nuclear production facility that it is using to produce weapons grade nuclear materials. Iran has been working on a deal [JURIST report] with EU nations so that Iran can purchase nuclear materials it needs from France, Germany, and the UK. JURIST's Paper Chase has continuing coverage [JURIST Countries archive] of Iran. AP has more.

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Schiavo family faces off in court on feeding tube removal
D. Wes Rist on February 23, 2005 9:32 AM ET

[JURIST] Relatives of Terri Schiavo [JURIST Newsmakers archive] face each other in court Wednesday over the status of Schiavo's artificial life support. On Tuesday, Schiavo's husband Michael was granted the right to proceed with the removal of Terri's feeding tube [JURIST report], which is all that is keeping her alive after a cardiac arrest 15 years ago starved her brain of oxygen. Terri's parents obtained an emergency stay [JURIST report] from Pinellas Circuit Court Judge George Greer that requires both parties to appear before him Wednesday for him to rule on the fitness of Michael Schiavo as Terri's guardian. Doctors disagree over whether Terri has any chance of recovery. AP has more.

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ICC to hold first hearing on Congo
D. Wes Rist on February 23, 2005 9:18 AM ET

[JURIST] The International Criminal Court [official website] announced Tuesday that it will hold a hearing to discuss what action the Prosecutor's Office will be taking in light of its investigation of the abuses committed in the Democratic Republic of the Congo. The DRC government referred the case [ICC press release] to the Office of the Prosecutor for investigation. Chief Prosecutor Luis Moreno-Ocampo [official profile] decided that the case had sufficient merit to warrant a full ICC investigation in June of 2004, making it the first investigation undertaken by the ICC. Read the ICC order [official PDF text] for the status conference. Read the ICC press release [official text] on the upcoming hearing. AFP has more.

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Suit filed against California stem cell research bill
Jeannie Shawl on February 23, 2005 8:27 AM ET

[JURIST] A California public interest group filed a lawsuit Tuesday seeking to invalidate the California Institute for Regenerative Medicine (CIRM) [official website], the $3 billion stem cell research funding institution authorized by California voters last November. The suit filed by Californians for Public Accountability and Ethical Science alleges that provisions in Proposition 71 [CA AG summary] that exempt CIRM members from government conflict-of-interest laws are illegal. The suit also challenges the ballot language of Proposition 71, alleging a violation of a California election law that requires each proposition to address a single subject. The lawsuit was filed directly with the California Supreme Court [official website] due to the issue's urgency. CIRM is scheduled to begin awarding research grants in May. AP has more.

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UK parliament to consider new anti-terror legislation
Jeannie Shawl on February 23, 2005 7:44 AM ET

[JURIST] Britain's House of Commons [official website] will vote Wednesday on legislation that will allow the UK to place terror suspects under house arrest without trial. Under the Prevention on Terrorism Bill [text], which was published Tuesday [JURIST report], terror suspects may be ordered under house arrest by Home Secretary Charles Clarke [official bio], but they are entitled to an automatic judicial review within a week. Despite opposition by Tories and Liberal Democrats, the measure is expected to pass in the Commons, but will face a tougher battle in the House of Lords [official website]. The opposition parties say that the "control orders" authorized by the new bill will be imposed on the authorization of the home secretary, not a judge, with an increased potential for miscarriages of justice. BBC News has more. Responding to the proposed legislation, Amnesty International [advocacy website] said that the proposed legislation "makes a mockery of human rights and the rule of law and contravenes the spirit, if not the letter, of the December 2004 Law Lords' judgment." A nine-judge panel of the House of Lords ruled in December [PDF decision text; JURIST report] that the indefinite detention of foreign terror suspects without charge violates the UK Human Rights Act. Amnesty also said that "The introduction of "house arrest" without charge or trial requires derogations from the European Convention on Human Rights (ECHR) [PDF text] and the International Convention on Civil and Political Rights (ICCPR) [text]." Read Amnesty's press release.

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Legal agenda and live webcasts ~ Wednesday, Feb. 23
Chris Buell on February 23, 2005 12:01 AM ET

[JURIST] Here's a run-down of law-related events, expected developments and live webcasts on JURIST's docket for Wednesday, Feb. 23.

The US Supreme Court [official website] is scheduled to hear oral arguments in two cases beginning at 10 AM ET today. In the first case, Orff v. United States [case backgrounder from Duke Law School], 03-1566, the Court will review a circuit split on whether farmers are intended or incidental beneficiaries of irrigation district contracts with the US Bureau of Reclamation. The ABA has merit briefs in the case. The Court will then hear arguments in Exxon Mobil v. Saudi Basic Industries, 03-1696, in which the Court will decide whether the Rooker-Feldman doctrine can be broadly applied to deny federal courts jurisdiction when simultaneous state court proceedings present identical issues. The ABA has merit briefs in the case.

The US Senate and US House [official websites] are in recess this week. Both will resume their sessions on Feb. 28.

The US Election Assistance Commission [official website] is holding a public meeting [agenda, PDF] at 10 AM ET and a public hearing [agenda, PDF] at 1 PM ET today. Watch a live webcast of proceedings.

The European Parliament [official website] continues its plenary session today, with a session beginning at 9 AM local time [3 AM ET]. Read an agenda [text], and watch a live webcast of today's session.

At the International Criminal Tribunal for the Former Yugoslavia, the trial of Slobodan Milosevic [ICTY case backgrounder] continues today. Watch a webcast of proceedings beginning at 9:30 AM local time [3:30 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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