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Legal news from Thursday, June 29, 2006

Former Alabama governor, ex-HealthSouth CEO convicted of bribery, fraud
Tom Henry on June 29, 2006 8:03 PM ET

[JURIST] Former Alabama Governor Don Siegelman [official profile; campaign website] and former HealthSouth [corporate website] CEO Richard Scrushy [JURIST news archive] on Thursday were convicted [DOJ press release] of federal bribery and fraud charges [JURIST report]. Siegelman was convicted on 10 counts, including bribery, conspiracy, and mail fraud. Scrushy was found guilty of fraud and both were also convicted in connection with a $500,000 payment from Scrushy for Siegelman's 1999 campaign debts in exchange for a seat on a state-operated review board that regulates hospitals. Prosecutors said Siegelman and Scrushy face up to 30 years in prison for their crimes.

Thursday's verdicts came a year after Scrushy was acquitted [JURIST report] on charges of wire and mail fraud, money laundering, conspiracy, and violations of the Sarbanes-Oxley Act [summary] in a scheme to overstate earnings and inflate HealthSouth's stock price between 1996 and 2002. Bloomberg News has more. The Montgomery Advertiser has local coverage.

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Lawyers for Canada Guantanamo detainee to request extradition
Tom Henry on June 29, 2006 7:46 PM ET

[JURIST] Lawyers for Omar Khadr [JURIST news archive], the Canadian citizen who is detained at Guantanamo Bay [JURIST news archive] and charged with killing a US Special Forces soldier in Afghanistan, said Thursday they will seek his extradition to Canada. The request follows Thursday's US Supreme Court [official website] ruling in Hamdan v. Rumsfeld [opinion text; JURIST report], which held that Guantanamo military commissions [DOD materials] are illegal under military law and the Geneva Conventions [ICRC materials] and that President Bush did not have authority to establish the commissions as constituted.

Of the approximately 450 men still detained [DOD press release] at Guantanamo, Khadr is one of 10 prisoners who have been charged. He is accused [charge sheet, PDF; JURIST report] of throwing a grenade that killed a US Green Beret and of planting mines to blow up US convoys. Canadian Press has more.

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UN rights council endorses treaty banning enforced disappearances
Tom Henry on June 29, 2006 7:13 PM ET

[JURIST] The UN Human Rights Council [official website] on Thursday adopted a resolution [press release] endorsing the draft International Convention for the Protection of All Persons from Enforced Disappearance [PDF text], which would require signatories to refrain from engaging in forced disappearances [Wikipedia backgrounder; UNHCHR materials]. The convention defines forced disappearances as "detention, abduction, or deprivation of liberty by state agents followed by a refusal to acknowledge deprivation and a placing of the disappeared outside the protection of the law." The practice was especially common in the 1970s and '80s under dictatorships in Latin America, and more than 500 recent disappearances were reported to UN agencies last year. The newly formed rights council unanimously adopted the document, ending what diplomats described as long negotiations. The convention now goes to the UN General Assembly [official website] for final approval.

The US chose not to seek a seat [JURIST report] in this first year of the Human Rights Council, after opposing its creation [JURIST report]. Although the UN expressed disappointment [JURIST report] at the Bush administration's decision not to seek a seat, the US has said it may run for a position next year. Reuters has more. The UN News Centre has additional coverage.

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Dutch government to resign over MP citizenship controversy
Joshua Pantesco on June 29, 2006 3:45 PM ET

[JURIST] Dutch Prime Minister Jan Peter Balkenende [official website; Wikipedia profile] has said that the ruling coalition government in the Netherlands will resign Friday after losing the support of one of the parties making up the coalition due to the treatment of a Dutch lawmaker whose citizenship was nearly revoked. Democraten 66 (D66) [official website], a social-liberal party, pulled out of the coalition in protest after Immigration Minister Rita Verdonk [official profile] refused to resign after stripping former Dutch MP Hirsi Ali [BBC profile] of her citizenship and later restoring Ali's citizenship [JURIST report].

Ali resigned from the Dutch parliament [JURIST report] in May after Verdonk declared her 1997 naturalization invalid because she lied on her application for asylum. Verdonk, however, issued a ruling Wednesday reinstating Ali's citizenship, saying her 1992 application sufficiently identified her [press release]. Ali, well-known for her criticisms of fundamentalist Islam, has since moved to the US to take a job with a conservative think-tank. BBC News has more.

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Libby requests one-month delay in CIA leak trial
Joshua Pantesco on June 29, 2006 3:27 PM ET

[JURIST] Defense lawyers for I. Lewis "Scooter" Libby [defense profile; JURIST news archive] have requested a one-month delay in the trial, which would push the scheduled start date back to February 12, 2007. Lead defense attorney Theodore V. Wells Jr. requested the delay to accommodate a securities fraud trial he believes will take longer than previously expected. Special Counsel Patrick Fitzgerald [official website] said he would consent to the delay unless the securities trial is pushed back, and US District Judge Reggie B. Walton will soon decide whether to grant the request.

Libby has pleaded not guilty [JURIST report] to obstruction of justice and perjury charges [PDF indictment; JURIST report] in connection with the investigation into the leak of covert CIA operative Valerie Plame's identity to the media. Speculation that President Bush will pardon Libby [JURIST report] has increased following the revelation earlier this month that Karl Rove [official profile], Bush's top political advisor, will not face criminal charges [JURIST report] in the three-year investigation. AP has more.

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Jordan should ban torture, end special courts: UN investigator
Joshua Pantesco on June 29, 2006 2:49 PM ET

[JURIST] Jordan should criminalize torture and end the use of special courts that protect accused police and intelligence officials, UN Special Rapporteur on Torture Manfred Nowak [official website] told a press conference following the conclusion of his two-day visit to Jordan [JURIST news archive]. Nowak said he has evidence that torture is systematically practiced at two detention centers in Amman run by the General Intelligence Department (GID) [official website] and the Central Investigation Department (CID) of the Public Security Forces, as well as the much-maligned Jaefer prison, but that officials at both centers obstructed his investigation through denying access to areas of the prison and hiding evidence.

Nowak's recommendations will be included in an official report to the UN General Assembly and the reformed Human Rights Council [official websites], on which Jordan sits as a vice-chair. Animated by similar concerns about detainee treatment, the British government concluded a special memorandum of understanding [PDF] with Jordan in August 2005 under which Jordan promised that any persons deported by the UK to Jordan would be treated "in a humane and proper manner, in accordance with internationally accepted standards." The agreement has nonetheless been criticized by rights groups [HRW press release] as inadequate. AFP has more.

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Arkansas Supreme Court strikes down regulation against same-sex foster parents
Joshua Pantesco on June 29, 2006 2:14 PM ET

[JURIST] The Arkansas Supreme Court Thursday struck down [ruling, PDF] a regulatory provision barring same-sex couples from raising foster children, saying that it found no connection between homosexuality and child-rearing ability. The state child welfare agency had appealed a lower court ruling against section 200.3.2 of the Arkansas Minimum Licensing Standards of the Child Welfare [PDF text], which states in part that "No person may serve as a foster parent if any adult member of that person's household is a homosexual." The Supreme Court agreed with the trial court that "the regulation did not promote the health, safety and welfare of foster children and, thus, the Board exceeded its authority in legislating for public morality."

The Texas legislature passed a similar law [JURIST report] last April that would bar same-sex couples from becoming foster parents. Last December, the UK parliament granted adoption rights to same-sex couples [JURIST report]. AP has more.

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Hospitalization of elderly Khmer Rouge war crimes defendant puts trial in doubt
Jaime Jansen on June 29, 2006 1:41 PM ET

[JURIST] Ta Mok [Trial Watch profile], the former military chief of the Khmer Rouge [JURIST news archive] communist movement in Cambodia who was indicted for genocide in 1999, entered a hospital Thursday as his health continues to deteriorate since becoming sick in jail last week, according to his lawyer. The hospitalization has revived speculation that Ta Mok, 80, will be unable to stand trial before Cambodia's Khmer Rouge genocide tribunal [official task force website; timeline], scheduled to begin proceedings in 2007 [JURIST report]. Former Khmer Rouge foreign minister Ieng Sary [Wikipedia profile] was hospitalized due to a heart condition [JURIST report] earlier this year.

The deteriorating health of several potential defendants has prompted the UN to call for their trials to begin as soon as possible [JURIST report]. The communist Khmer Rouge were responsible for the deaths of approximately 1.7 million people by disease, forced labor, starvation, and execution during their 1975-1978 rule over Cambodia. Most of the former leaders and potential defendants are in their 70s. While judges and prosecutors for the UN-assisted court were recently selected [JURIST report], the tribunal has yet to secure all of its $56.3 million budget [JURIST report]. AP has more.

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Bush to seek Congressional approval for Guantanamo military commissions
Joshua Pantesco on June 29, 2006 1:31 PM ET

[JURIST] The administration will work with Congress within the boundaries set by the Supreme Court in Thursday's Hamdan v. Rumsfeld decision [JURIST report] to "determine whether or not the military tribunals will be an avenue in which to give [Guantanamo Bay detainees] their day in court," President Bush said [transcript] during a meeting later Thursday with Japanese Prime Minister Junichiro Koizumi. While Bush said he had only received a quick briefing on the decision, he stressed that the White House will take the ruling "very seriously", although he avoided a reporter's question on whether the US will now move towards closing Guantanamo [JURIST news archive].

The Supreme Court ruled in Hamdan [PDF] that President Bush lacked the constitutional authority to establish military tribunals to try enemy combatants and that the structures and procedures of the tribunals violate both the Uniform Code of Military Justice [text] and the Geneva Conventions. Ranking Senate Judiciary Committee Democrat Sen. Patrick Leahy (D-VT) welcomed the decision [press release] as a "much-needed check on this Administration's unilateral policies that have clearly stretched the bounds of the President's constitutional authority," a position echoed by House Democratic Leader Nancy Pelosi (D-CA), the ACLU, and Amnesty International USA [press releases].

Guantanamo Bay camp commander Rear Adm. Harry Harris told Reuters last week [report] that because the Supreme Court in Hamdan was not asked to rule on the legality of the detention center itself, little will change in terms of day-to-day operations there. AP has more.

7:32 PM ET - Defense Department officials said Thursday that "all options are on the table" and that the Pentagon and Justice Department are reviewing the Hamdan decision. Only 14 detainees are directly affected by the decision - the 10 detainees already charged [DOD materials] and four detainees who have not yet been arraigned - but officials said that between 40 and 80 detainees were eventually expected to be charged. In a teleconference [transcript], officials stressed that the Supreme Court's ruling recognizes that the administration can seek statutory authority from Congress to proceed with the military commissions. In a statement [text] Thursday, US Senate Majority Leader Bill Frist said:

Following the July 4th recess, I will introduce legislation, in consultation with the Administration and my colleagues, that authorizes military commissions and appropriate due process procedures for trials of terrorist combatants. To keep America safe in the War on Terror, I believe we should try terrorists only before military commissions, not in our civilian courts. In response to today’s Supreme Court decision, Congress should work with the President to update our laws on terrorist combatants to respond to the new threats of a post-9/11 world.
The American Forces Press Service has more.

Meanwhile, international human rights organizations have widely praised the decision. A spokesman for the UN High Commissioner for Human Rights [official website] said that the ruling "would seem to be a vindication of the need for vigilance in the protection of all human rights." Council of Europe [official website] Secretary General Terry Davis called the decision "a victory for justice in the campaign against error, ineptitude and hypocrisy." In a statement [text], Davis said:
The fallacious choice between security and the rule of law and the deliberate decision of the United States government to betray fundamental human rights and liberties have weakened American defences, alienated its allies and galvanised its enemies in the war against terrorism. The US administration should seize this opportunity to revise its policies, close Guantanamo and give up the practices of extraordinary renditions, ill-treatment of detainees, outsourcing of torture and other measures which do not comply with international standards of human rights.
Aljazeera has more.

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'Liberal' laws could allow lawsuits against Church over abortion, marriage views: cardinal
Jaime Jansen on June 29, 2006 1:07 PM ET

[JURIST] A leading member of the Catholic Church expressed concern Thursday that the Church could be prosecuted for some of its traditional religious positions against abortion, same-sex marriage and stem cell research [JURIST news archives]. In an interview [transcript, in Italian] with leading Italian Catholic magazine Famiglia Cristiana [media website, in Italian], the head of the Pontifical Council for the Family [official website] Cardinal Alfonso Lopez Trujillo [Wikipedia profile] said that socially liberal laws in several European countries, including Spain, Belgium, and the Netherlands, may leave the Vatican open to discrimination lawsuits down the road.

Trujillo also criticized laws recognizing same-sex marriage and civil unions, and denounced the latter as a "legal fiction." Reuters has more. ANSA has local coverage. Catholic Online has additional coverage.

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South Korea court rules restrictive press laws unconstitutional
Joshua Pantesco on June 29, 2006 12:58 PM ET

[JURIST] South Korea's Constitutional Court [official website] on Thursday struck down as unconstitutional provisions in the controversial Newspaper Law and the Press Arbitration Law that restrict the circulation of three conservative daily newspapers and authorize the government to compel newspaper retractions without a court order. The Wednesday ruling is based on Article 21 of the Korean Constitution [text], which reads in part:

All citizens enjoy the freedom of speech and the press, and of assembly and association...Licensing or censorship of speech and the press...may not be recognized...Neither speech nor the press may violate the honor or rights of other persons nor undermine public morals or social ethics. Should speech or the press violate the honor or rights of other persons, claims may be made for the damage resulting therefrom.
The decision invalidated as an excessive restriction on the freedom of newspapers a provision in the Newspaper Law [Chosun Ilbo backgrounder] that prevents an individual who owns more than half of one daily newspaper from owning half of another, though the law will remain in effect until a revision is worked out. The decision also invalidates as "uncomfortable" with the constitution several provisions in the Press Arbitration Law, including a provision subjecting any three dailies who control more than 60 percent of any market share to antitrust laws, and a provision that would allow the government to order retractions of unfavorable reports without a court order.

The constitutional petition was brought by conservative newspapers Chosun Ilbo, Joong Ang Ilbo and Dong-A Ilbo [media websites]. The International Press Institute [advocacy website] has condemned both laws [press release] as creating an "extremely negative impact upon South Korea's reputation as a democratic nation." Chosun Ilbo has local coverage.

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EU justice chief calls for stronger powers on law enforcement, criminal matters
Jaime Jansen on June 29, 2006 12:09 PM ET

[JURIST] Franco Frattini [official website], the EU commissioner for justice, freedom and security, has proposed [press release] that national governments of EU member states shift regulation of law enforcement cooperation, cross-border policing and basic rights for criminal suspects to the European level. Referencing the "bridging" clause found in Article 42 [text] of the EU Treaty, Frattini said that EU member states should give up their national vetoes on matters of police and judicial cooperation, and instead approve EU measures in these areas by qualified majority while allowing the European Parliament [official website] to take a greater role in the decision-making process. Frattini wants to end a stalemate between European governments [Parliament Magazine report, PDF] caused by the need to vote unanimously on such areas as pan-European investigations when in hot pursuit of criminals and the rights of foreign criminal suspects. Under the current system, most EU criminal justice measures require all 25 member states to agree and the European Parliament plays only an advisory role. Frattini's proposals also give the European Court of Justice [official website] a higher role in settling asylum, immigration and visa cases.

While unveiling the European Commission's proposal Wednesday, Frattini also commended the European Arrest Warrant [EU summary], which allows the judiciary in one country to order the police in another to make an arrest and puts the suspect on a "fast-track" to extradition. After last year's London bombings [JURIST news archive] a suspect fled to Rome and was promptly extradited to the UK in 42 days [JURIST report], instead of the typical 15 months normally required for extradition proceedings. AKI has more. EUObserver.com has additional coverage.

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UN official urges Security Council to protect civilians better in armed conflict
Joshua Pantesco on June 29, 2006 11:48 AM ET

[JURIST] The UN's top humanitarian expert told the UN Security Council [official website] Wednesday that immediate action must to be taken to prevent civilian deaths [meeting summary] in ongoing armed conflicts in several countries. Jan Egeland [official profile], UN Under-Secretary-General for Humanitarian Affairs, said that "In Iraq, Sudan, Uganda, Somalia, Afghanistan and the Democratic Republic of the Congo, civilians continue to bear the full brunt of armed conflict and terror," and that "women are still raped and violated as a matter of course, children are still forcibly recruited, and defenceless civilians continue to be killed in violation of the most basic principles enshrined in centuries of international lawmaking." While applauding Security Council Resolution 1674 [text], which provides peacekeepers with specific instructions on how to shield civilians from open fire, Egeland called for more effective legal tools, increased financial resources for peacekeepers to mediate political conflicts before violence breaks out, and for providing peacekeeping missions with broad and flexible mandates to respond to quickly-changing situations.

Egeland also said that international legal mechanisms designed to protect civilians in armed conflicts [UN materials] must be consistently enforced. AP has more. The UN News Centre has additional coverage.

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Rights coalition asks African Union to compel trial of former Chad president
Jaime Jansen on June 29, 2006 11:10 AM ET

[JURIST] The Campaign Against Impunity [advocacy website], a group of 300 African and international civil society bodies, has urged the African Union Assembly [official website] to call on Senegal to try former Chad President Hissene Habre [HRW backgrounder; JURIST news archive], Human Rights Watch [advocacy website] said Thursday. The AU will meet in Gambia on July 1 to review a confidential report by an AU committee and discuss possible forums for the Habre trial. The Campaign Against Impunity wants the AU to force Senegal to begin Habre's trial or extradite him to Belgium, where he has been indicted for crimes against humanity [JURIST report]. In May, the UN Committee against Torture [official website] gave Senegal 90 days to fulfill its obligations under the Convention Against Torture [text] to put Habre on trial for torture crimes and rights offenses stemming from his 1982-90 rule in Chad or extradite him to Belgium.

Habre has been living in exile in Senegal since 1990 and in 2005 Belgium issued an international arrest warrant on torture and murder charges. Read the HRW press release. Reuters has more.

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Serbia high court finds Milosevic ordered political killings
Joshua Pantesco on June 29, 2006 10:33 AM ET

[JURIST] Former Yugoslav President Slobodan Milosevic [JURIST news archive] ordered the 2000 killing of communist-era Serbian President Ivan Stambolic [Guardian obituary], his former mentor, to consolidate his hold on power in the former Yugoslavia, Serbia's Supreme Court said in a ruling Thursday that rejected the appeal of eight policemen convicted in 2005 [JURIST report] in connection with the plot whose sentences were confirmed [JURIST report] by the court earlier this month. The eight have also been convicted of the Milosevic-ordered attempted murder of former opposition leader Vuk Draskovic [official profile], the current Foreign Minister of Serbia. A court statement said that "The primary court defined and showed, and the Supreme Court also accepts, that Slobodan Milosevic gave an order for murder of Stambolic and Draskovic as his political opponents."

Milosevic faced war crimes charges at the International Criminal Tribunal for the former Yugoslavia [official website] before his death [JURIST report] earlier this year. A direct case against him in Belgrade District Court for "organizing" Stambolic's murder was closed afterwards [JURIST report]. Reuters has more.

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Yahoo! 'click fraud' settlement wins preliminary approval from federal judge
Joe Shaulis on June 29, 2006 10:30 AM ET

[JURIST] A federal judge in Los Angeles has given preliminary approval to a settlement in a class-action lawsuit alleging that Yahoo! Inc. [corporate website] overcharged for pay-per-click advertising. As part of the agreement, approved Wednesday by US District Judge Christina Snyder [official profile] of the Central District of California [official website], Yahoo will offer a claims process [Yahoo press release] overseen by a retired federal judge. Advertisers can submit claims for "click fraud" dating to January 2004 and will receive full refunds pending a Yahoo investigation. Yahoo also has agreed to pay $4.95 million in legal fees from the lawsuit.

Yahoo's search-engine rival Google Inc. [corporate website] agreed to settle a similar lawsuit [JURIST report] in March, with Google's liability limited to $90 million. An Arkansas court has scheduled a hearing for July 24 to determine whether the Google settlement should receive final approval. AP has more.

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Low-income group challenges Medicaid citizenship documentation legislation
Jaime Jansen on June 29, 2006 10:25 AM ET

[JURIST] A group of nine low-income citizens filed a lawsuit in the US District Court for the Northern District of Illinois [official website] Wednesday seeking to enjoin legislation requiring proof of citizenship for Medicaid beneficiaries [legislation backgrounder, PDF] from taking effect on July 1. Families USA [advocacy website] sued US Health and Human Services Secretary Mike Leavitt [official profile] arguing that the citizenship proof requirement in the Deficit Reduction Act of 2005 [text, PDF] puts an undue burden on Medicaid beneficiaries [press release]. The rule requires that Medicaid beneficiaries prove their citizenship through US passports, birth certificates or other government documents. If beneficiaries do not have any validating documents, beneficiaries can submit affidavits signed by two non-relatives vouching for the beneficiary's citizenship.

Under the Act, states that fail to adhere to the citizenship proof requirement will sacrifice federal matching funds for Medicaid. Some 35,000 Medicaid beneficiaries stand to be affected by the citizenship proof requirement. AP has more. From Washington DC, The Hill has additional coverage.

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BREAKING NEWS ~ Supreme Court rules Guantanamo military commissions illegal
Jeannie Shawl on June 29, 2006 10:12 AM ET

[JURIST] Wire services are reporting that the US Supreme Court [official website] has ruled that military commissions [DOD materials] at Guantanamo Bay are illegal under military law and the Geneva Conventions [ICRC materials], holding in Hamdan v. Rumsfeld [Duke Law case backgrounder; JURIST news archive], that President Bush did not have authority to establish the commissions as constituted.

Salim Hamdan [Trial Watch profile], a former driver for Osama bin Laden who is being held at Guantanamo Bay [JURIST news archive], challenged his trial before a military commission [JURIST news archive] rather than in front of an ordinary military court. Hamdan's lawyer told the Court during oral arguments [recorded audio; JURIST report] in March that the commission system is unfair because it allows President Bush's military subordinates to determine who will act as judge and jury and also decide which crimes will be prosecuted. The Bush administration argued that the special military tribunals established by the president [Military Order text], which do not adhere to either standard US military procedure or the Geneva Conventions, can be used to prosecute suspected terrorists as war criminals. The government has said that Hamdan is not entitled to Geneva Convention protections because he was not part of a uniformed enemy.

10:27 AM ET - The decision was 5-3, with Chief Justice Roberts not participating as he had previously ruled on the case in favor of the government [opinion text; JURIST report] while sitting as a judge on the US DC Circuit Court of Appeals. SCOTUSblog has more.

11:29 AM ET - The Court held there is no express authorization from Congress for Hamdan's military commission and that commission structures and procedures violate both the Uniform Code of Military Justice [text] and the Geneva Conventions. The Court said that commission procedures set forth in Commission Order No. 1 [PDF text] do not comply with UCMJ Article 36 [text]. The statute allows military commission procedures to differ from standard criminal procedure or military court-martial rules when necessary, but the Court ruled that although the President has determined that it is impracticable to apply "the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts," he has not "made a similar official determination that it is impracticable to apply the rules for courts-martial." The Court also said:

Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President's Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism.52 Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan's trial, any variance from the rules that govern courts-martial.

The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present. See 10 U. S. C. A. §839(c) (Supp. 2006). Whether or not that departure technically is "contrary to or inconsistent with" the terms of the UCMJ, 10 U. S. C. §836(a), the jettisoning of so basic a right cannot lightly be excused as "practicable."

Under the circumstances, then, the rules applicable in courts-martial must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Article 36(b).
With respect to the Geneva Conventions, the Court held that Article 3 [text] - often called Common Article 3 as it is common to all four Geneva Conventions - applies even though the US is at war with al Qaeda, which is not a signatory to the conventions. The Court said:
Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." 6 U. S. T., at 3320 (Art. 3, ¶1(d)). While the term "regularly constituted court" is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines "'regularly constituted'" tribunals to include "ordinary military courts" and "definitely exclud[e] all special tribunals." GCIV Commentary 340 (defining the term "properly constituted" in Article 66, which the commentary treats as identical to "regularly constituted");64 see also Yamashita, 327 U. S., at 44 (Rutledge, J., dissenting) (describing military commission as a court "specially constituted for a particular trial"). And one of the Red Cross' own treatises defines "regularly constituted court" as used in Common Article 3 to mean "established and organized in accordance with the laws and procedures already in force in a country." Int'l Comm. of Red Cross, 1 Customary International Humanitarian Law 355 (2005); see also GCIV Commentary 340 (observing that "ordinary military courts" will "be set up in accordance with the recognized principles governing the administration of justice").

The Government offers only a cursory defense of Hamdan's military commission in light of Common Article 3. See Brief for Respondents 49-50. As Justice Kennedy explains, that defense fails because "[t]he regular military courts in our system are the courts-martial established by congressional statutes." Post, at 8 (opinion concurring in part). At a minimum, a military commission "can be 'regularly constituted' by the standards of our military justice system only if some practical need explains deviations from court-martial practice." Post, at 10. As we have explained, see Part VI-C, supra, no such need has been demonstrated here.65 ...

Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.
The Court also refused to grant the government's motion to dismiss [PDF text; JURIST report] the case based on the Detainee Treatment Act [JURIST document], part of which limits the ability of Guantanamo prisoners to challenge their detentions in federal courts, saying that Congress did not intend for the relevant DTA provision to apply to pending claims. The Court also specifically noted that it was not addressing "the Government's power to detain [Hamdan] for the duration of active hostilities in order to prevent such harm."

Read the Court's opinion [text] per Justice Stevens, along with a concurrence [text] from Justice Breyer, who was joined by Justices Kennedy, Souter and Ginsburg; a concurrence in part and dissent in part [text] from Justice Kennedy, who was joined in part by Justices Souter, Ginsburg and Breyer; a dissent [text] from Justice Scalia, who was joined by Justices Thomas and Alito; a dissent [text] from Justice Thomas, who was joined in full by Justice Scalia and in part by Justice Alito; and a final dissent [text] from Justice Alito, who was joined in part by Justices Scalia and Thomas.

 Topic: US Supreme Court | Op-ed: Why Hamdan is Right about Conspiracy Liability

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Supreme Court upholds Arizona law on insanity defense
Jeannie Shawl on June 29, 2006 10:10 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday upheld Arizona's law governing insanity defenses in criminal cases, ruling in Clark v. Arizona [Duke Law case backgrounder; JURIST report] that the state's approach does not violate constitutional due process. In June 2000 at the age of 17, Eric Clark, a diagnosed paranoid schizophrenic, shot and killed police officer Jeff Moritz because he allegedly believed that Moritz was an extraterrestrial. At trial, Clark's lawyers were not allowed to introduce evidence of Clark's mental state that was meant to disprove criminal intent, and the trial court's decision was upheld on appeal [opinion, PDF].

Under Arizona law, a defendant can be found guilty but insane if he can prove that "at the time of the commission of the criminal act [he] was afflicted with a mental disease or defect of such severity that [he] did not know the criminal act was wrong," and the Court ruled that this formulation did not "in theory nor in practice ... deprive Clark of due process." The Court also upheld the Arizona Supreme Court's ruling that evidence of a defendant's mental incapacity could not be considered to negate mens rea. Read the Court's majority opinion [text] per Justice Souter, along with a concurrence in part and dissent in part [text] from Justice Breyer, and a dissent [text] from Justice Kennedy, who was joined by Justices Stevens and Ginsburg. AP has more.

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Rulings against anti-terror laws creating 'constitutional crisis': UK MP
Joshua Pantesco on June 29, 2006 9:57 AM ET

[JURIST] Recent British court rulings against the legality of control orders [JURIST report] restricting terror suspects have precipitated a "constitutional crisis" in the UK, according to Labour Party MP John Denham [official profile], chair of the House of Commons Home Affairs Committee [official website], speaking Thursday on BBC Radio 4 [recorded audio]. Denham was responding to Wednesday's High Court ruling striking down control orders for six suspects [JURIST report], and an April ruling by the same judge finding that the control order process denied defendants a fair trial [JURIST report]. Mr. Justice Jeremy Sullivan based his two rulings on his reading of Article 5 [text] of the European Convention on Human Rights (ECHR) [PDF text], which protects against indefinite detentions. The ECHR was adopted into UK law by the Human Rights Act 1998 [text].

The decisions challenge the legality of the controversial Prevention of Terror Act 2005 [text], which created control orders, a tool in the war against terror that authorizes the electronic monitoring or house arrest of terror suspects where there is not enough evidence to prosecute or convict them. Denham defended the necessity of control orders Thursday, saying:

We now know, from last year's London bombings, that the police and security services are taking life and death decisions about who to keep under surveillance. And if you don't have mechanisms of this sort for people you believe to be dangerous then it is difficult to protect the security of the public in the way we want.
In the wake of another landmark ruling [JURIST document] by Sullivan in May giving asylum to nine Afghans convicted of hijacking a plane to the UK in 2002, Prime Minister Tony Blair [official profile] called for a review [JURIST report] of "whether primary legislation is needed to address the issue of Court rulings which over-rule the Government in a way that is inconsistent with other EU countries interpretation of the European Convention on Human Rights." BBC News has more.

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Kazakhstan parliament makes second bid to pass restrictive media legislation
Joe Shaulis on June 29, 2006 9:57 AM ET

[JURIST] Kazakhstan's parliament [official website, English version] has approved legislation that would subject the news media to more state control. It will not take effect unless signed by President Nursultan Nazarbayev [official website, English version], who vetoed a similar law [RFE report; US statement] in 2004. The new legislation provides for high administrative fines and registration fees for media organizations, according to the Organisation for Security and Cooperation in Europe (OSCE) [organization website].

The United States and OSCE have criticized the bill as threatening the freedom of the press in the Central Asian nation, which has been ruled by the recently-re-elected [JURIST report] Nazarbayev since its independence from the Soviet Union in 1991. Earlier this month, OSCE's representative on freedom of the media asked the Kazakh minister of culture and information [OSCE press release] to withdraw the proposed media law amendments. "[I]t is against international democratic standards for the Government to define which press outlets are trusted by the public, or to decide on the right number of outlets," said the OSCE representative, Miklos Haraszti. Reuters has more.

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Hicks to serve terror sentence in Australia if convicted
Jaime Jansen on June 29, 2006 9:55 AM ET

[JURIST] Australian-born terror suspect David Hicks [JURIST news archive] will serve his prison sentence in Australia if convicted by a US military commission [JURIST news archive] at Guantanamo Bay [JURIST news archive], Australian Justice Minister Chris Ellison [official profile] said Thursday. Hicks, captured in Afghanistan by US forces in 2001 with suspected ties to the Taliban, is one of ten charged Guantanamo Bay detainees awaiting trial by a military commission in Guantanamo. The ten trials have been postponed pending a US Supreme Court [official website] decision in Hamdan v. Rumsfeld [Duke Law case backgrounder; JURIST news archive] challenging the legality of the military commissions.

The Australian and US governments brokered a deal [JURIST report] in May to transfer prisoners sentenced by the military commissions pending approval by both governments. Hicks successfully petitioned for British citizenship [JURIST report] because his mother is a British citizen in an effort to have the UK government lobby for his release, as it had done with all other British detainees at Guantanamo. The UK Foreign Office [official website] announced earlier this week, however, that it will not lobby for Hicks' release [JURIST report] because he was traveling under an Australian passport when he was detained in 2001. Reuters has more.

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New York chief judge calls for state to take over public defender services
Joshua Pantesco on June 29, 2006 9:29 AM ET

[JURIST] A commission headed by the chief judge of New York [JURIST news archive] has recommended that a permanent state commission be established to assume control of the state's indigent legal service systems to ensure that they meet the constitutional requirements for providing adequate representation. Speaking at a news conference Wednesday, Chief Judge Judith S. Kaye [official profile] unveiled the final report [PDF text] of the New York Commission on the Future of Indigent Defense Services [official website]. The commission found that no uniform standard exists in the state to determine indigency and that funding for indigent defense systems is "grossly inadequate," causing great disparities in the legal services provided by rich and poor counties. The commission also concluded that most public defenders neglect collateral issues, such as immigration, that affect many defendants. The commission recommended a state-funded independent public defender system, noting that New York funds only $51 million of the estimated $323 million spent on indigent defense by its municipalities and counties.

Twenty-eight state legislatures have mandated that the public defender systems be state-run in order to comply with the constitutional requirements of US Supreme Court indigent counsel decisions such as Gideon v. Wainwright and Douglas v. California [opinion texts]. The New York Times has more.

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Federal regulators allege propane price manipulation by BP
Jaime Jansen on June 29, 2006 9:11 AM ET

[JURIST] The US Commodity Futures Trading Commission (CFTC) [official website] filed a civil lawsuit [PDF complaint; press release] in federal court Wednesday alleging that at least six current and former employees of BP North America [corporate website] manipulated propane prices in 2004 by using BP's dominant market position to increase heating costs in the middle of winter. The CFTC is seeking an injunction against BP, other equitable relief and monetary penalties under the Commodities Exchange Act [text]. BP denied any wrongdoing [press release] and indicated that it would fight the charges in court. The company also said it would cooperate with a parallel criminal investigation by the US Justice Department (DOJ) [official website]. Dennis N. Abbott, a former BP trader, faces up to five years in prison and a fine of $250,000 after he pleaded guilty [DOJ press release] on Wednesday to a conspiracy charge in the criminal investigation.

The lawsuit, filed in US District Court for the Northern District of Illinois [official website], alleges that BP caused prices to spike by buying large quantities of propane in January 2004 and then hoarding that stock to push prices up. The price of propane rose from 63 cents per gallon to 94 cents per gallon that February. Jad Mouawad of the New York Times has more.

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US House rejects measure to counter high court 'knock and announce' ruling
Joe Shaulis on June 29, 2006 9:10 AM ET

[JURIST] The US House of Representatives [official website] has defeated a measure that would have barred the US Justice Department from collecting evidence in violation of the "knock and announce" rule. The House voted 310-109 [roll call] late Wednesday to reject an amendment offered by Rep. Maurice Hinchey (D-NY) [official website] in reaction to the US Supreme Court's decision two weeks ago in Hudson v. Michigan [opinion text; JURIST report]. In a 5-4 decision, the court held that evidence collected under a search warrant is admissible in court even when police officers failed to knock before entering a home. Hinchey's amendment to an appropriations bill [HR 5672 summary; PDF text] for the Justice Department and other agencies would have prohibited the use of federal money "in contravention of" the knock-and-announce statute, which requires [18 USC 3109 text] a law enforcement officer to give "notice of his authority and purpose."

Hinchey argued that the knock-and-announce rule is "enshrined in the Constitution" by the Fourth Amendment [text], which forbids unreasonable searches and seizures. The floor manager for the debate, Rep. Frank Wolf (R-VA) [official website], said it was inappropriate for the House to "overrule" the Supreme Court decision. AP has more.

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Israel arrests Hamas leaders, warns of assassination as abduction crisis worsens
Jaime Jansen on June 29, 2006 8:01 AM ET

[JURIST] The Israeli military arrested seven Palestinian Cabinet ministers and some 20 lawmakers Thursday as tensions mounted [NYT report] between Israel [JURIST news archive] and Palestinians sparked by the Sunday abduction of Israeli soldier Cpl. Gilad Shalit in Gaza. Israel Army Radio [Wikipedia backgrounder; media website] indicated that Israel may trade some of the arrested leaders from the Hamas party that now controls the Palestinian government for the captured Shalit, although Israel earlier refused to do so. On Wednesday, Israel moved troops into southern Gaza, and sent warplanes over pro-Palestinian Syria. Israeli Prime Minister Ehud Olmert [official website; BBC profile] threatened to increase action against Palestinians, but said Israel has no plans to occupy Gaza [speech transcript]. Israeli Justice Minister Haim Ramon [Knesset profile] said that Hamas leader Khaled Mashaal is overseeing acts of terror and could be a target for assassination [JURIST report]. Meanwhile, Palestinian President Mahmoud Abbas [BBC profile] deplored Israel's actions as "crimes against humanity."

Responding to the worsening Middle East situation, the United Nations, the European Union, and the United States all urged Israel and the Palestinians to step back [UN press release] and use diplomacy instead. AP has more.

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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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