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Legal news from Tuesday, October 11, 2005

DeLay lawyers subpoena Texas prosecutor to show improper grand jury conduct
Jeannie Shawl on October 11, 2005 8:17 PM ET

[JURIST] Lawyers representing Rep. Tom DeLay [official website; JURIST news archive] Tuesday subpoenaed Travis County District Attorney Ronnie Earle [official website] in order to show that the Texas prosecutor acted improperly with grand jurors in seeking indictments against DeLay on conspiracy and money-laundering charges. DeLay's attorney has submitted a list of 12 questions for Earle to answer, including why a decision by a grand jury not to indict [JURIST report] DeLay was not made public. Earle's office released a statement Tuesday saying that due to laws protecting grand jury secrecy, there are limitations on what Earle can say. DeLay's legal team has also asked that the grand jurors involved in the indictments be released from their secrecy oath. AP has more.

Previously in JURIST's Paper Chase...

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Deal reached on Iraqi constitution; Sunni party to urge charter approval
Christopher G. Anderson on October 11, 2005 8:12 PM ET

[JURIST] In what some Iraqi officials are calling a "breakthrough," Shiite and Kurdish leaders of the Iraqi government [official website, English version] have agreed to allow the country's parliament to review possible future amendments to the Iraqi constitution [JURIST news archive; JURIST document], a demand considered key to winning the support of Iraq's minority Sunni population in the upcoming October 15 referendum [IECI fact sheet, PDF]. Under the eleventh-hour deal announced late Tuesday, a commission will be established to consider amendments to the charter, which would then be voted on by the National Assembly and thereafter submitted to the public in another referendum. This would allow Sunnis to try to amend the constitution to reduce the autonomous powers granted to the majority Shiites and Kurds under the current draft, due to be voted on this weekend. At least one Sunni leader, Ayad al-Samarraie of the Iraqi Islamic Party [GlobalSecurity profile], said the agreement will prompt his party to urge Sunni Arabs to vote in favor of adopting the constitution. According to Iraq's current electoral law, a majority is necessary for the constitution's adoption, unless two-thirds of the citizens in at least three of Iraq's 18 provinces vote "no." With the October referendum coming up on Saturday, the printed copies of the draft constitution now being distributed by the UN [JURIST report] cannot reflect the amendments; instead the changes will be publicized in the Iraqi media, largely on TV. AP has more.

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UN official: Israel depriving Palestinians of basic rights
Christopher G. Anderson on October 11, 2005 7:30 PM ET

[JURIST] Israel is depriving Palestinians of their basic human rights using security as an excuse, a top United Nations [official website] official told reporters Tuesday. Hina Jilani [ABA profile], special representative of Secretary General Kofi Annan [official profile], accused Israel of using security imperatives to block lawyers, journalists and human rights activists from observing and preventing potential human rights abuses. She also warned Israel that the lack of peace in the West Bank and Gaza Strip would not excuse non-compliance with international humanitarian law [ICRC backgrounder] standards. A spokesperson for the Israeli Ministry of Foreign Affairs [official website] stressed that Israel was "a democracy in which human rights is at the very heart of the body politique" and added that a more detailed response will be issued soon. The UN also announced Tuesday [UN press release] that Jilani will undertake a fact-finding mission to the Israeli occupied zone at the invitation of the Israeli government [official website, English version; CIA profile]. AFP has more.

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States brief ~ MO constitutional amendment proposed to protect stem cell research
Rachel Felton on October 11, 2005 5:50 PM ET

[JURIST] Leading Tuesday's states brief, a coalition including medical professionals from the University of Missouri and Washington University, the American Diabetes Association and the Parkinson's Action Network [advocacy website] proposed a Missouri constitutional amendment that would specify that stem cell research, cures and therapies allowed under federal law are also allowed under state law. The proposal is in response to anti-abortion groups' effort to bar somatic cell nuclear transfer [Wikipedia backgrounder], a type of stem cell research. The coalition must gather at least 139,181 signatures to place the proposal on the November 2006 ballot, and Missouri Right to Life [advocacy website] said Tuesday that it will continue to push for a ban on the research. AP has more.

In other state legal news ...

  • The California Fourth District Court of Appeal heard oral arguments [case summary] today on whether two doctors who refused to artificially inseminate a lesbian violated state law. An attorney from the Lambda Legal Defense and Education Fund [advocacy website] claimed the action violated state anti-discrimination laws which cover sexual orientation, while an attorney for the two doctors argued that a lower court decision preventing religious freedom from being raised as a defense was incorrect. The court will issue its decision within 90 days. View Lambda Legal's case summary including case briefs and court opinions here. AP has more.

  • The Georgia Supreme Court [official website] heard oral arguments today on whether a new state law [text] that allows medical malpractice defendants to choose their home county as the lawsuit's venue is unconstitutional. In one case before the court, lawyers argued that a plaintiff has the right to choose venue and that the law unconstitutionally restricts that right. In a second case, arguments on a lower-court decision declaring the law unconstitutional took place. The medical malpractice law also caps pain-and- suffering awards at $350,000. AP has more.

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ExxonMobil settles Clean Air Act allegations with EPA, DOJ, states
Greg Sampson on October 11, 2005 5:03 PM ET

[JURIST] The Environmental Protection Agency and the US Justice Department announced [press release] on Tuesday that ExxonMobil [corporate website] will spend an estimated $571 million to settle a lawsuit with the federal government and three states over alleged violations of the Clean Air Act [text]. The settlement is intended to cut the annual production of pollutants from ExxonMobil's refineries that cause respiratory problems and worsen childhood asthma, and must be spent cutting the production of sulfur dioxide and nitrogen oxides. The settlement also requires the company to implement improvements in its leak detection systems. Additionally, ExxonMobil's affected refineries will now operate under a consent decree with the government to enforce environmental protection laws. AP has more.

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Nepal enacts ordinance restricting press freedoms
Greg Sampson on October 11, 2005 4:37 PM ET

[JURIST] Nepal's King Guyanendra [BBC profile] has approved a new ordinance tightening oversight of the country's media. Among other provisions, the newly-enacted bill authorizes imprisonment and increased fines of individuals who publish "banned items," prohibits publication of stories that inspire disrespect or hatred of the king, and outlaws FM radio stations that broadcast news programs. Parliament first introduced the ordinance in May, shortly after King Guyanendra seized power [JURIST report] in February, but was delayed by protests that the bill unduly harmed press freedom. The restrictive laws come in the face of ongoing pro-democracy demonstrations in Nepal. Last month, the Nepalese government arrested 87 journalists and other activists [JURIST report] partaking in continued pro-democracy demonstrations. PTI has more.

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UK Lords debate religious hatred bill amid protests
Greg Sampson on October 11, 2005 4:06 PM ET

[JURIST] The UK House of Lords [official website] debated the proposed Racial and Religious Hatred Bill [text; BBC Q/A] Tuesday as a coalition of demonstrators protested outside parliament. The bill, proposed [JURIST report] last year, is would ban incitement to religious hatred. The demonstrators, which included both religious believers and critics of religion, argued the bill would restrict religious believers' right to evangelize and outlaw legitimate public discourse. Home Secretary Charles Clarke [official profile] responded by asserting that the purpose of the bill was to stop extremist behavior, not to limit free speech. BBC News has more.

Previously in JURIST's Paper Chase...

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Environmental brief ~ CA governor vetoes biomonitoring bill
Tom Henry on October 11, 2005 4:02 PM ET

[JURIST] Leading Tuesday's environmental law news, California Governor Arnold Schwarzenegger [official website] vetoed a bill [text] that would have created the first statewide program to track trace amounts of chemical pollutants in human subjects to study the relationship between chemical exposure and health. Schwarzenegger said that the bill would "only provide a partial snapshot of chemicals present in tested participants without proper context of what the presence of [a] specific chemical means or how it interacts with other health factors." The Oakland Tribune has more.

In other environmental law news...

  • South Korea representative Kim Woo-nam announced Monday at a meeting of the Ministry of Maritime Affairs and Fisheries [official website] that the South Korea government had encouraged aquatic farmers to use malachite green to treat crab, shrimp and fish ailments. Malachite green [HHS toxicology report] was found in the 1980s to be a possible carcinogen, and has been banned from use on foods since the early 1990s. Last Thursday, the government stopped shipments from fish farms from across the nation after traces of the chemical were found in freshwater fish from 34 fish farms. The Korea Herald has more.

  • In Canada, Ontario Energy Minister Dwight Duncan [official profile] has announced that he will continue his plan to shut down all coal-fired power plants in the province, even if a government report recommends otherwise, calling those that support coal plants "Neanderthals." The Ontario Power Authority (OPA) [official website] is preparing a report, expected to be released in December, that examines the current and future energy needs for the province and proposes ways to meet those needs. Duncan had proposed the legislation [official backgrounder] that initially created the OPA. Ontario currently receives 17 percent of its energy from coal-fired plants. Canadian Press has more.

  • Florida Governor Jeb Bush [official website] has announced [press release] a $200 million plan to restore Lake Okeechobee [Army CoE backgrounder]. Under the plan, the Army Corps of Engineers [official website] will revise its regulations to reduce water discharges into the lake, the state will promulgate new fertilizer management practices and establish new pollution reduction standards for the lake's tributaries, and a reservoir and stormwater treatment areas will be constructed. AP has more.

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Vukovar massacre trial opens at UN war crimes tribunal
Greg Sampson on October 11, 2005 2:38 PM ET

[JURIST] Prosecutors at the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] opened their case [press release] Tuesday in the trial against three former officers of the Yugoslavian army who allegedly permitted the massacre of more than 200 hospital patients in the Croatian town of Vukovar. The prosecution accused the three former officers, known as the Vukovar Three [BBC profile], of ignoring orders to prevent soldiers under their command from committing acts of retribution, and were thus complicit in one of the most significant massacres during the Balkan wars. The three former officers have been charged [ICTY case backgrounder] with five counts of crimes against humanity and three counts of violation of the laws or customs of war. Reuters has more.

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US high court considers California death penalty case
Greg Sampson on October 11, 2005 2:26 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday heard oral arguments on whether convicted murderer Ronald Sanders was wrongly sentenced to death by a California jury that improperly relied on invalid aggravating factors in deciding the sentence. Sanders was sentenced to death in 1982 for beating a woman to death in a drug-related robbery. In arguments Tuesday in Brown v. Sanders [Duke Law case backgrounder], the attorney for the state of California said that the death sentence should still stand because the jury also relied on valid aggravating factors in arriving at its decision. Sanders' attorney argued the sentence should be overruled because the invalid factors still influenced the jury's decision on the valid factors. The Supreme Court agreed to hear the case [JURIST report] earlier this year after the Ninth Circuit threw out the death sentence [PDF opinion]. The ABA has merit briefs for the case. AP has more.

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Danish PM sued for contributing troops to Iraq war
Christopher G. Anderson on October 11, 2005 1:55 PM ET

[JURIST] Twenty-four Danish citizens have brought suit against Danish Prime Minister Anders Fogh Rasmussen [official profile], claiming his decision to go to war in Iraq violated Denmark's constitution. The plaintiffs allege that Rassmussen's decision to join the US-led coalition which invaded Iraq in 2003, was constitutionally improper on two grounds. First, the plaintiffs allege that under Article 19 of the Denmark's constitution [PDF text], Rassmussen could only bring the country into war with a UN Security Council [official website] resolution. Secondly, the plaintiffs also claim that Rassmussen's decision to go to war amounted to an unconstitutional delegation of sovereignty over Danish troops to a foreign power, in violation of Article 20 of the constitution. Currently, Denmark [CIA factbook] has a contingent of about 500 troops in Iraq. BBC News has more. From Denmark, Politiken has local coverage.

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Delay sought in Zuma corruption trial
Brandon Smith on October 11, 2005 1:34 PM ET

[JURIST] Prosecutors in the corruption trial of former South African Deputy President Jacob Zuma [ANC profile] asked a magistrate Tuesday to postpone the trial until Nov. 1 to allow for further investigation for possible additional charges. The prosecution also requested the case be moved to the High Court, but Zuma's lawyers argued [SAPA report] that the case could not be moved until a final indictment is issued. Zuma was dismissed [JURIST report] as the deputy president of President Thabo Mbeki [BBC profile] in June after a judge found there was evidence of a corrupt relationship between Zuma and his former financial adviser, Schabir Shaik, already sentenced to 15 years [JURIST report] in jail for bribery and fraud. The case has caused a rift in the African National Congress and has thrown the question of Mbeki's successor as president into confusion. AP has more.

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BREAKING NEWS ~ Microsoft, RealNetworks settle antitrust lawsuit
Jeannie Shawl on October 11, 2005 12:52 PM ET

[JURIST] MSNBC is reporting that Microsoft [corporate website] and RealNetworks [corporate website] have settled Real's antitrust lawsuit [press release] against Microsoft for $761 million. AP has background on the settlement.

4:04 PM ET - According to the settlement [press release], Microsoft will make a $460 million upfront cash payment and an additional $301 million in cash and services in order to settle the last major antitrust case against Microsoft. In exchange, RealNetworks will drop all antitrust claims against Microsoft. AP has more.

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Ex-Hollinger CEO to appeal Ontario ruling on Ravelston fraud charges
Christopher G. Anderson on October 11, 2005 12:44 PM ET

[JURIST] Former media mogul Conrad Black [CBC profile] is expected Tuesday to appeal an Ontario court's ruling that would allow his Canadian-based holding company Ravelston Corporation to face criminal fraud charges in the United States. Black's lawyers maintain that US courts do not have jurisdiction over Ravelston. They also argue that Black is the victim of a smear campaign brought on by two of his former companies, Hollinger International [corporate website] and Hollinger Inc. [corporate website; CJR report]. Both companies are suing Black [JURIST report] for the hundreds of millions of dollars they allege he stole while running both companies. Black has countersued for defamation [JURIST report]. CTV has more.

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Ex-official warns proposed changes could weaken Iraqi tribunal
Brandon Smith on October 11, 2005 12:13 PM ET

[JURIST] Salem Chalabi, former head of the Iraqi Special Tribunal (IST) [official website; JURIST news archive] that will open the trial of Saddam Hussein [JURIST news archive] next week, has warned that a proposed bill to amend the tribunal's practices could actually weaken its power and limit international involvement. According to Chalabi, the IST's current statutes were drafted with the intention of conforming to established international practices, but the proposed changes being considered by the Iraqi National Assembly would institute practices that mirror Iraqi criminal courts. He also warned that the long term effects beyond the Hussein trial would be to reduce the validity of the tribunal without protecting the rights of the person on trial. Chalabi headed the IST from its founding in October 2003 until he stepped down in September 2004 under implications in the killing [JURIST news report] of a finance official. He has subsequently been cleared of all charges. Earlier this week, a UN human rights expert released a report [text] saying that the IST does not meet international standards [JURIST report] and calling for the tribunal to be replaced by an independent UN body. Tuesday's Washington Times has more.

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US Supreme Court to consider wetlands cases
Christopher G. Anderson on October 11, 2005 11:57 AM ET

[JURIST] The US Supreme Court [official website] granted certiorari Tuesday in several cases where the Court will consider the extent of the federal government's power to regulate the development of wetlands. The Court agreed to hear three separate cases, all of which involve issues of whether federal laws that protect the environment impermissibly intrude upon the law-making powers of the states or the property rights of private individuals. Property developers and environmentalists alike have been worried about how the newly appointed Chief Justice John Roberts [JURIST news archive] will vote in such cases. During his brief stint as a judge on the federal appeals court in 2003, Roberts suggested that the federal government's power to protect the environment is limited. In S.D. Warren Co. v. Maine Board of Environmental Protection (04-1527) the Court will consider whether a company that draws water out of a river and returns it without pollution must obtain a permit under the Clean Water Act [EPA backgrounder]. In Rapanos v. United States (04-1034) and Carabell v. Army Corps of Engineers (04-1384), the Court will clarify the role of the federal government to regulate the filling or pollution of wetlands not closely linked to waterways. AP has more.

Also Tuesday, the Court granted certiorari in the case of Zurich Insurance Co. v. Chatham County, where the court will consider an 11th Circuit decision that ruled that the county acted as an "arm of the state" in operating a drawbridge and was therefore entitled to "residual sovereign immunity" under common law. SCOTUSblog has more. Read the Court's full Order List [PDF].

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Afghanistan readies prisons for transfer of Gitmo detainees
Holly Manges Jones on October 11, 2005 11:07 AM ET

[JURIST] Afghanistan's defense ministry said Monday that the country is preparing prison facilities to hold detainees who are expected to be transferred from the US prison camp in Guantanamo Bay [JURIST news archive]. Defense ministry spokesman General Mohammad Zahir Azimi said US and Afghan officials met Sunday to discuss the transfer of prisoners, but no date has yet been agreed upon for the hand-over. Azimi said the discussions centered around the logistics for the prisoners' transfer, many of whom have been held for nearly four years. Earlier this year, the US agreed to gradually release prisoners to Afghanistan [JURIST report] after the country developed the capacity to hold them. Several Afghan prisoners have already been released from Guantanamo Bay, including former Taliban ambassador to Pakistan Mullah Abdul Salam Zaeef [BBC profile], who was transferred last month. From Pakistan, the News International has more.

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UN expects high turn-out for Iraq constitution referendum, including Sunnis
Holly Manges Jones on October 11, 2005 10:27 AM ET

[JURIST] The United Nations is expecting a large turn-out for Saturday's Iraqi constitution [JURIST news archive] referendum [IECI fact sheet, PDF], including in areas dominated by Sunni Arabs who have voiced opposition to the charter. The UN's top global election supervision official Carina Perelli said, "We are seeing a political will to commit to the vote as an institutional process which gives the people back their voice." Shiite and Kurdish officials have been meeting with Sunni officials [JURIST report] this week in a last-minute attempt to win their buy-in for the charter, after 21 Sunni organizations called for Iraqis to reject the charter [JURIST report] last week. Sunnis are concerned that the new constitution will cause Iraq to lose its "Arab identity" and that it also provides for an unfair distribution of Iraq's oil wealth. But Perelli said that Sunnis in the western province of Al-Anbar have been following the constitutional debates closely and have indicated an interest to participate in the referendum. According to Iraq's current electoral law, a majority is necessary for the constitution's adoption, unless two-thirds of the citizens in at least three of Iraq's 18 provinces vote "no." AFP has more.

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Bali nightclub bombers moved to higher security prison
Holly Manges Jones on October 11, 2005 10:02 AM ET

[JURIST] Indonesia [JURIST news archive] moved the three masterminds behind the 2002 Bali nightclub bombings [BBC report] to a higher security jail Tuesday to wait out their time on death row, just one day before the third anniversary of the bombings. According to Bali Justice Ministry spokesman IG Rata, the prisoners were moved to the Batu Prison on Nusakambangan, an island off the south Java coast, which is often called Indonesia's "Alcatraz." A letter ordering the move came from Indonesian Justice Minister Hamid Awaluddin on Monday, but Rata said plans regarding the move began two months ago for "security reasons." Rata reported that the prisoners were moved from the Kerobokan Prison because it is currently overcrowded with 800 prisoners, despite the fact that is was only built to hold 338, and the soil and walls of the prison are deemed to be too fragile. Over 100 Balinese citizens yesterday continued their protest from last week calling for the immediate execution of the three assassins [JURIST report]. AAP has more.

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Shining Path leader rejects terrorist label in Peru trial
Jeannie Shawl on October 11, 2005 9:24 AM ET

[JURIST] Abimael Guzman [MIPT profile], founder of Peru's Shining Path [BBC backgrounder] guerilla movement, told a Peruvian court Monday that he is not a terrorist, and instead labeled himself a "revolutionary combatant." Guzman is facing a retrial [JURIST report] on charges that he led a campaign of assassinations and massacres in the 1980s and early 1990s as part of Shining Path's efforts to overthrow Peru's government and install a communist state. The rebellion left almost 70,000 people dead, and Guzman received a life sentence in Peru's military court system after being captured in 1992. The military verdict was ruled unconstitutional two years ago, and Guzman is now facing civil terrorism charges. Guzman's retrial began last year, but ended 10 days after it started when two of the three judges stepped down because of complaints they were involved in previous rebel trials. Guzman has said that after the trial is completed, he will take his case [BBC report] to the Inter-American Commission for Human Rights [official website] in an effort to discredit Peru's judicial system [Justice Ministry website, in Spanish]. AP has more.

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Indonesia makes first arrest in Bali bombing investigation
Jeannie Shawl on October 11, 2005 8:55 AM ET

[JURIST] Indonesian police said Tuesday that they have arrested a man identified simply as "Hasan" in connection with the October 1 Bali bombings [BBC report], the first arrest in the case. Hasan shared a rented house in Bali with the three suicide bombers who blew themselves up as part of a coordinated attack. Under Indonesia's current anti-terror law [JURIST report], Hasan can be held for up to seven days before being charged. The suicide bombers are believed to be involved with al Qaeda-linked militant group Jemaah Islamiyah [BBC profile]. Australian officials have called on the Indonesian government to ban the group [JURIST report], but Indonesia says that it cannot do so [JURIST report] because the government has never formally acknowledged the group's existence. AP has more.

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New Miers documents show close bond to Bush
Jeannie Shawl on October 11, 2005 8:31 AM ET

[JURIST] The Texas State Library and Archives Commission [official website] made public Monday over 2,000 pages of official correspondence and personal notes from US Supreme Court nominee Harriet Miers [official profile; JURIST news archive]. The documents, which cover 1995 to 2000, focus on Miers' tenure as chair of the Texas Lottery Commission and do not include her views on social issues, nor do they relate to her involvement in President Bush's campaigns for governor and president. Instead, the documents reveal Miers' close ties to Bush, with notes from Miers calling Bush "the best governor ever" and referring to him as "cool." Over the weekend, Sen. Arlen Specter, chairman of the Senate Judiciary Committee, said that Miers could expect intense questioning on her qualifications for the job [JURIST report] and that Miers must be able to demonstrate that she will not make "back room deals" with the White House. Tuesday's New York Times has more.

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

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