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Legal news from Friday, July 7, 2006

Supreme Court stay on removal of San Diego cross continued pending appeal
Bernard Hibbitts on July 7, 2006 6:48 PM ET

[JURIST] US Supreme Court Justice Anthony Kennedy ordered Friday that a temporary stay [JURIST report] against the removal of a monumental cross on city property in San Diego be continued until the Ninth Circuit hears an appeal on the cross's removal this fall. Kennedy issued the original stay of a lower court's order that a 29-foot cross honoring Korean War veterans [backgrounder] be removed on Monday after city officials threatened to remove the cross as early as this week.

In a rare written opinion [PDF] explaining the extended stay, Kennedy wrote:

The equities here support preserving the status quo while the city's appeal proceeds. Compared to the irreparable harm of altering the memorial and removing the cross, the harm in a brief delay pending the Court of Appeals' expedited consideration of the case seems slight.
In May, US District Judge Gordon Thompson Jr. of the Southern District of California ordered [Union-Tribune report] that the cross be removed by Aug. 2 and that the city be fined $5,000 a day if it was not. Thompson found that the cross was a state endorsement of religion that violated the Establishment Clause of the First Amendment. The lawsuit was brought by Philip Paulson, an atheist and Vietnam War veteran who has been challenging the cross for more than 15 years [Paulson article]. The Supreme Court declined [docket] to consider an appeal in other litigation over the Mt. Soledad cross three years ago. AP has more.

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Federal regulators relax Medicaid rule requiring proof of US citizenship
Joshua Pantesco on July 7, 2006 5:04 PM ET

[JURIST] The Centers for Medicare and Medicaid Services [official website], part of the US Department of Health and Human Services, issued a final rule Thursday clarifying proof of citizenship [CMS materials] required to apply for Medicaid benefits. The new rule exempts mostly elderly and disabled applicants who have previously applied for Medicare or Supplemental Security Income (SSI) benefits from the proof of citizenship provision [legislation backgrounder, PDF] contained in the Deficit Reduction Act of 2005 [text, PDF], which requires either a social security card, passport, or two signed affidavits from non-family members attesting to the applicant's US citizenship for an applicant to be eligible for benefits. The preamble to the new Medicaid rule says the proof of citizenship requirement as passed by Congress in an effort to avoid claims by illegal immigrants contained a "clear drafting error," which permits the regulatory body some flexibility in interpretation.

The new rule appears intended to moot a lawsuit [JURIST report], currently in federal court, that had challenged the regulation as an undue burden on Medicaid beneficiaries [press release]. While the lawyers directing the litigation applauded the new rule Friday, they noted that foster children, homeless people, the mentally disabled and disaster victims are among the millions who may remain uninsured [plaintiffs press release] if they have never applied for either Medicare or SSI benefits. A brief hearing [Reuters report] in the lawsuit was held Friday in Chicago. The New York Times has more. The Los Angeles Times has additional coverage.

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Bush presses immigration compromise as House holds hearing at border station
Joshua Pantesco on July 7, 2006 3:47 PM ET

[JURIST] President Bush repeated earlier calls [JURIST report] for a compromise immigration reform bill [JURIST news archive] that would satisfy the demands of both House and Senate leaders during a press conference [transcript] in Chicago Friday. After promoting the use of the voluntary Basic Pilot Employment Verification Program [backgrounder], an automated system employers may use to check the legal status of a new hire, Bush said:

The best way to deal with this problem [of immigration], in my judgment, is to say, look, you're here illegally, there's got to be a consequence. The consequence could be a penalty, a fine. It could be proof that you're not a criminal. In other words, there's got to be ways to say -- make restitution for society for breaking the law; but say to the person, you can get in the citizenship line, but at the back of the line, not at the beginning. See, there are people in line who want to become a citizen of the United States. It doesn't make sense to penalize those who are here legally, playing by the rules, to let people who have been here illegally get ahead of them.
In an effort to promote a deal, Bush has already met with some House Republican leaders who passed a conservative law-enforcement-focused immigration bill [HR 4437 summary; JURIST report] in November.

Also on Friday, the House International Relations Committee Subcommittee on International Terrorism and Nonproliferation [official website] held a second hearing [meeting notice] on border security at a border patrol station in Laredo, Texas. The Houston Chronicle has more.

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German state court rejects headscarf ban
Jaime Jansen on July 7, 2006 1:44 PM ET

[JURIST] A court in the German state of Baden-Wuerttemberg [official website] Friday threw out a ban on women teachers wearing religious headscarves [JURIST news archive]. The case originated when Baden-Wuerttemberg passed a law [JURIST report] in 2004 forbidding "outward expressions that undermine the neutrality of the government or peace between political and religious creeds in school," but which reportedly did not apply to Catholic nuns wearing veils in public schools. Baden-Wuerttemberg argued that public school teachers needed to show political and religious neutrality, but the Baden-Wuerttemberg administrative tribunal felt that the legislation was discriminatory because it applied to Muslim women wearing headscarves and not Catholic nuns.

Though the Baden-Wuerttemberg court found discrimination in the legislation because Catholic nuns wore veils, Germany's Federal Administrative Court [official website] ruled in 2004 that the legislation also applies to Catholic nuns [JURIST report], requiring them to remove their religious symbols before entering the classroom as well. Deutsche Press Agentur has more.

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East Timor ex-PM summoned for questioning as suspect in weapons case
Joshua Pantesco on July 7, 2006 1:39 PM ET

[JURIST] Former East Timor Prime Minister Mari Alkatiri [BBC profile] was again summoned on Friday for questioning on July 20 by the lead prosecutor of East Timor, this time as a suspect, to answer questions in an investigation into the distribution of illegal weapons to local militias. Alkatiri refused an earlier summons [JURIST report] last month, claiming immunity from criminal prosecution as a member of Parliament. Alkatiri resigned [BBC report] in June, and was automatically awarded a seat in Parliament. Alkatiri, who proclaimed his innocence during a TV broadcast last month, has been reportedly implicated in the weapons case by his associate and former Interior Minister Rogerio Lobato. Prosecutors charged [JURIST report] Lobato in connection with the case in June.

The UN is investigating the violence [JURIST report] that has surged in East Timor since April. East Timor [JURIST news archive] was a UN protectorate between 1999 and 2002 while the territory transitioned from an Indonesian possession to an independent state. AP has more.

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Japan offers new Security Council resolution on North Korea missile launches
Jaime Jansen on July 7, 2006 1:14 PM ET

[JURIST] Japan circulated a new UN Security Council [official website] draft resolution on Friday, tougher than a previous draft resolution [text] circulated earlier this week [JURIST report], that would direct states to take whatever steps necessary to prevent North Korea [JURIST news archive] from obtaining materials that could be used in their missile program. The new draft, which has the support of the United States and Britain, also retains a threat of sanctions against North Korea if it continues to launch test missiles [VOA report]. Russia has opposed sanctions, advocating instead a strongly-worded condemnation of Tuesday's missile tests, and China has yet to say whether it would vote against a resolution or abstain from a vote on the drafts. Insisting it is within its legal rights [JURIST report], North Korea has said it will continue missile launches, and has threatened to use force if the international community tries to stop the test-launches. North Korea pulled out of the Nuclear Nonproliferation Treaty [PDF text; IAEA backgrounder] in 2003 and international law regarding nuclear weapons is therefore largely inapplicable to North Korea.

In the milder draft resolution, UN member states would be blocked from providing North Korea with money, materials or technology that contribute to a nuclear program. The Security Council will continue discussions of the drafts into Saturday. Meanwhile, President Bush said Friday that he will rally world support to send a clear message [AP report] to North Korea that its missile tests will not be tolerated. AP has more.

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Khmer Rouge genocide indictments may take months to return: prosecutor
Joshua Pantesco on July 7, 2006 12:53 PM ET

[JURIST] Robert Petit [Globalpolicy.org profile], the Canadian international co-prosecutor for the Khmer Rouge genocide tribunal [official task force website; timeline] cautioned reporters Friday at a Phnom Penh news conference that the court's investigation process, set to begin Monday, could take months to return its indictments due the complexity of the cases and and the novel structure of the court. The investigation will collect new evidence to bring against the surviving members of the Khmer Rouge [JURIST news archive] regime, which ruled over Cambodia from 1975-1978. The UN has called for trials to begin as soon as possible [JURIST report], as the former Khmer Rouge military chief was hospitalized [JURIST report] last week, following the hospitalization of the former foreign minister [JURIST report] earlier in the year, as well as the death of former Khmer Rouge health minister Thiounn Thioeunn [DC-CAM profile] in June.

Twenty-seven judges and prosecutors for the UN-assisted court were sworn in [JURIST report] on Monday. AFP has more.

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Uganda rebels reject amnesty offer
Jaime Jansen on July 7, 2006 12:49 PM ET

[JURIST] Rebels in Uganda's Lord's Resistance Army (LRA) [BBC backgrounder] rejected an offer of amnesty from Ugandan President Yoweri Museveni [official website; BBC profile] on Friday, calling the offer redundant. Museveni promised rebel leader Joseph Kony [BBC profile] conditional amnesty [JURIST report] if he denounces terrorism and if upcoming LRA negotiations at the end of July with the southern Sudanese government proceed smoothly. An LRA spokesman said that all parties must be equal at the negotiations and that accepting amnesty "presupposes surrender" and would mean the LRA is no longer available to discussion.

Kony was indicted by the International Criminal Court (ICC) [JURIST report; PDF arrest warrant] along with four LRA lieutenants last October on charges that they orchestrated the killing of thousands of civilians and the enslavement of thousands more children over two decades of conflict with Museveni's government. An ICC spokesman renewed its calls for Kony's arrest [JURIST report] Wednesday, shortly after Museveni offered amnesty. Last week, Kony said in a rare interview that he was "not guilty" of atrocities attributed to him [JURIST report], describing himself as a "freedom fighter" rather than a terrorist. BBC News has more.

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Italy ex-PM Berlusconi to stand trial on tax fraud charges
Joshua Pantesco on July 7, 2006 12:16 PM ET

[JURIST] An Italian judge ruled Friday that former Italian Prime Minister Silvio Berlusconi [BBC profile; JURIST news archive] should stand trial in November on alleged embezzlement, false accounting, tax fraud and money laundering charges in connection with a TV rights deals involving family company Mediaset [corporate website]. Preliminary hearings [JURIST report] were held last October in the case following a four-year investigation into the charges. Along with the former prime minister, who resigned after losing a disputed re-election bid [JURIST reports], the judge approved as defendants in the case British barrister David Mills, husband of British Culture Minister Tessa Jowell [official profile] and Berlusconi's long-time counsel, Mediaset Chairman Fedele Confalonieri, and former executives at Berlusconi's Fininvest holding company.

Prosecutors allege that in deals struck between 1994 to 1999, Mediaset falsely reported the broadcast royalties paid for US films, thus avoiding taxes totaling 125 billion old lire. The tax fraud charge is the most serious for the former prime minister, carrying a possible six-year sentence. Prosecutors also allege that Berlusconi used Mediaset to create a slush fund for family use. Berlusconi denies all charges.

Berlusconi, who has called the Italian judiciary "the disease of our democracy" [JURIST report], may face a Spanish investigation into antitrust allegations stemming from offshore accounts [JURIST report], as well as claims by Italian prosecutors that he may have bribed Mills in exchange for false testimony [JURIST report]. In September 2005 he was cleared of false accounting charges [JURIST report] and in June 2005 he was acquitted on bribery charges [JURIST report]. BBC News has more. ANSA has local coverage.

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ICTR appeals chamber gives former Rwanda mayor life sentence
Jaime Jansen on July 7, 2006 11:47 AM ET

[JURIST] An appeals chamber of the International Criminal Tribunal for Rwanda (ICTR) [official website] on Friday increased the sentence for former Rwandan mayor Sylvestre Gacumbitsi [case materials] to life in prison [press release], revising his 30-year prison sentence [JURIST report], handed down in 2004. The ICTR convicted [judgment] Gacumbitsi of genocide and crimes against humanity [indictment, PDF] in 2004, in connection to inciting rape and abuse of ethnic Tutsi women in the town of Rusamo in 1994.

The appeals chamber ruled [judgment summary] that public statements by Gacumbitsi during the genocide encouraged the rape and killing of Tutsis, and that Gacumbitsi personally supervised massacres in Rwanda's Kinbungo province. The events in 1994 led by the Hutu government resulted in an estimated one million deaths, mostly of Tutsis. IRIN has more.

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Germany parliament passes major constitutional reform legislation
Jaime Jansen on July 7, 2006 11:38 AM ET

[JURIST] The German Bundesrat [official website], the upper house of parliament, approved a landmark package of constitutional reforms [official backgrounder, in German] aimed at separating and clarifying the powers of the federal and state governments. The legislation passed the lower house of parliament [JURIST report], the Bundestag, last week by a margin of 428-162. The legislation marks the first major reform that the government of German Chancellor Angela Merkel [official website in German; BBC profile] has adopted since taking office seven months ago.

After World War II, Germany's government was organized under an inefficient system of federalism [German Law Journal article] where centralized power was disfavored and each of Germany's 16 states in the Bundesrat upper house had complete veto power over legislation. The new legislation [JURIST report] will strip veto power from the 16 states and allow the federal government to control environmental and nuclear energy policy in exchange for withdrawing federal influence from issues of education, the judiciary, and localized commerce. In a compromise, the federal government may still fund university-based research projects. The legislation will take effect at the beginning of 2007. AFP has more.

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Russia radio regulators block 60 stations from broadcasting US-funded programs
Joshua Pantesco on July 7, 2006 11:30 AM ET

[JURIST] Russian radio regulators have enjoined 60 radio stations from broadcasting material produced by Voice of America (VOA) and Radio Free Europe/Radio Liberty [media websites], citing violations of licensing laws. Re-broadcast licenses were stripped from the 60 stations because, according to regulators, the stations failed to indicate that they intended to re-broadcast segments produced by the two US-funded but independent news sources. However, sources from VOA and Radio Liberty suggested that recent controversial broadcasts, including an interview, produced by Radio Liberty and broadcast on ABC's Nightline program, of a Chechen warlord involved with the 2004 Beslan school siege [BBC backgrounder], enraged Moscow, sparking to the licensing decision.

Russia's media Law on Communications [text] provides that radio may only be broadcast from state-controlled towers, giving the Russian government wide-reaching control over broadcast content. VOA and Radio Liberty news programs, which are recorded in Russian, are now carried by five and four Russian radio stations, respectively. The Washington Post has more.

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Hicks says Guantanamo conditions worse after detainee suicides
Jaime Jansen on July 7, 2006 10:47 AM ET

[JURIST] David Hicks [JURIST news archive], the Australian-born terror suspect held at Guantanamo Bay [JURIST news archive], told family members that conditions at the detention center have worsened in the wake of three detainee suicides [JURIST report] in June, Hicks' lawyer David McLeod said Thursday. Hicks told family members that Guantanamo guards have become "very tough" and that he thinks that the guards are punishing other inmates for the three suicides. Hicks also claimed that he has been held in solitary confinement for 24 hours a day, without furniture in the concrete cell.

Additionally, Hicks apparently did not learn of the recent US Supreme Court [official website] ruling declaring military commissions for Guantanamo detainees illegal [JURIST report; opinion, PDF] as constituted, nor did Hicks learn of a British High Court decision to entitling him to British citizenship [JURIST report] because Hicks' mother is a UK citizen. Hicks was one of ten Guantanamo detainees awaiting trial by the military commissions [JURIST news archive], and the status of a future trial for Hicks is still unknown. Australian Prime Minister John Howard [official website] thinks that Hicks should stand trial in American courts [JURIST report], while Hicks' Pentagon appointed military lawyer, Maj. Michael Mori, has stated that any future trial for Hicks would constitute double jeopardy [JURIST report] under the Fifth Amendment. From the UK, the Guardian has more.

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France to grant 'amnesty' to thousands of immigrant families
Joshua Pantesco on July 7, 2006 10:40 AM ET

[JURIST] France intends to grant residency papers to thousands of immigrant families with children in French schools, government officials said Thursday. Many children and their parents faced deportation at the end of the French school year after a deportation moratorium was to expire, but French Interior Minister Nicolas Sarkozy [BBC profile] last month told regional authorities to implement new citizenship criteria for the children of illegal immigrants. The standards favor granting citizenship to children who were born in France or who arrived before age 13, have been in French schools for two years, and have no link with their parents' country, though officials warn that not every child who seems to fit the criteria will be granted citizenship. Last month, Sarkozy called for changing a proposed immigration bill before the Senate to save some immigrant children from deportation [JURIST report].

The French National Assembly passed a conservative immigration bill [JURIST report] in May that tightens restrictions on unskilled, non-EU immigrants and requires immigrants to sign a pledge to learn French and to abide by French law. The National Assembly bill permits the expulsion of children with no ties to their parents' home countries, prompting immigration advocacy groups to petition the government for more flexibility in the residency criteria. AFP has more. Le Monde has local coverage.

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Italy government proposes easier citizenship requirements
Jaime Jansen on July 7, 2006 10:10 AM ET

[JURIST] The new center-left government under Italian Prime Minister Romano Prodi [official profile; BBC profile] is considering granting citizenship to immigrants who have legally resided in Italy for five or more years, Italian Interior Minister Giuliano Amato [Wikipedia profile] said Thursday during a public debate in Rome. Amato rejected proposals to grant citizenship to immigrants after two years, stating that a two-year time period is too short.

The Northern League [Wikipedia backgrounder], a minority political party, voiced strong disagreement with the proposal, complaining that Italian citizens will one day have to seek resident permits in order to ensure their rights. The Northern League was party of a ruling right-wing coalition under former prime minister Silvio Berlusconi [BBC profile; JURIST news archive] that pushed legislation to make it harder for non-European Union immigrants to obtain residence permits. AFP has more.

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Former Iraq deputy PM on hunger strike over access to counsel, lawyer says
Jaime Jansen on July 7, 2006 9:44 AM ET

[JURIST] Tariq Aziz [BBC profile; JURIST news archive], the Iraqi deputy prime minister under Saddam Hussein's regime, has gone on hunger strike to protest the refusal of prison authorities to grant him access to his lawyer, a member of his legal team said Thursday. Military spokesman Lieutenant Colonel Keir-Kevin Curry, however, denied that Aziz began a hunger strike, saying that Aziz has received his meals and met with his lawyer on Wednesday. Izzat Rabih Aref, one of Aziz's lawyers, alleged that prison authorities are refusing to allow Aziz to meet with his defense team because Aziz needs to sign a legal document giving his lawyers the ability to present a case before the European Court of Human Rights (ECHR) [official website]. Another lawyer for Aziz, Italian lawyer Giovanni Di Stefano [law firm website; Aziz case file], accused the US and the UK of trying to prevent any internationally recognized court from hearing Aziz's case.

The ECHR has agreed to consider a request [text, DOC] by Aziz claiming that his security could be endangered if US forces turn Aziz over to Iraqi authorities. The ECHR, however, first wants to know [press release] which forces Aziz surrendered to in 2003, which forces have detained Aziz since then, as well as where and when those forces intend to hand Aziz over to Iraqi authorities. Di Stefano has said that Aziz turned himself in to what he believed were British forces, but that US and Italian forces were also involved, and that there is no specific date set to turn Aziz over to Iraqi authorities [JURIST report]. AFP has more.

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Top US officials in Iraq promise open probe into Mahmudiya rape, killings
Jaime Jansen on July 7, 2006 8:56 AM ET

[JURIST] US Ambassador to Iraq Zalmay Khalilzad and Gen. George Casey [official profiles], commander of US forces in Iraq, have promised an open investigation into the rape and murder of a young woman and her family in Mahmudiya [JURIST news archive], saying the alleged acts were "absolutely inexcusable and unacceptable." The rare joint statement from the two leaders issued Thursday comes amid an investigation into four soldiers in relation to the rape and murder of the Mahmudiya woman, as well as a probe into leadership failures that may have allowed the suspects to operate alone. Maj. Gen. William Caldwell said on behalf of Gen. Casey at a briefing Wednesday that the military takes allegations of wrongdoing "very seriously" [transcript], adding that "coalition leadership is committed to holding fair and impartial proceedings in full compliance with the Uniform Code of Military Justice," and that the they "remain confident the military justice system will ensure a fair result." Iraqi Prime Minister Nouri al-Maliki [BBC profile] has called for an independent probe [JURIST report] into the woman's death, as well as a review of mandates [JURIST report] that grant coalition forces immunity from Iraqi law.

Former Army soldier Steven Green pleaded not guilty [JURIST report] Thursday to rape and murder charges in relation to the allegations. Green, who was honorably discharged before the allegations arose, is said to have been the ringleader in the incident and has been charged [JURIST report; criminal complaint via FindLaw] in federal court. The civilian prosecution is authorized by the Military Extraterritorial Jurisdiction Act [PDF text], which gives civil courts jurisdiction over crimes committed by service members outside the US. Green agreed that his case would be prosecuted in the federal Western District of Kentucky [official website] after waiving both a detention hearing and a preliminary hearing. The complaint alleges that the soldiers had been drinking alcohol beforehand and had changed into civilian clothes, indicating that the alleged acts were not spontaneous. The other four suspects have been confined to a US base in Iraq, but their names have not been released. Green was arrested in North Carolina last week and was transported Thursday to Louisville. An arraignment is scheduled for August 8. AP has more. The American Forces Press Service has additional coverage.

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UN rights panel urges end to Israel international law violations in Gaza offensive
Jaime Jansen on July 7, 2006 8:00 AM ET

[JURIST] The UN Human Rights Council [official website] on Thursday denounced recent Israeli military operations [press release] in the West Bank and Gaza Strip, and voted to approve a resolution [PDF text] calling on Israelis and Palestinians to refrain from violence against civilians, saying the Israeli offensive breaches international humanitarian law. In the resolution, the Council expressed

deep concern at the breaches by Israel, the occupying Power, of international humanitarian law and human rights law in the Occupied Palestinian Territory, including the arbitrary arrest of Palestinian ministers, members of the Palestinian Legislative Council and other officials, as well as the arbitrary arrest of other civilians, the military attacks against Palestinian ministries, including the office of the Premier, and the destruction of Palestinian infrastructure, including water networks, power plants and bridges.
The Council also voted by a margin of 39-11 with five abstentions to send a fact-finding mission to Gaza led by UN Special Rapporteur on Human Rights in the Palestinian Territories John Dugard [official website].

The resolution, proposed by the Organization of the Islamic Conference [advocacy website], originally required only Israelis to refrain from violence against civilians, but the Council would not approve the proposal until it included Palestinians as well. Dugard told the Council during Wednesday's emergency session that Israel's military offensive in Gaza violates "fundamental norms" of human rights [JURIST report] and humanitarian law, reporting that civilians in Gaza lacked water, food and medicine. AP has more. The UN News Centre has additional coverage.

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