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Legal news from Thursday, January 18, 2007

Saddam officials charged for suppressing Shiite uprising after Gulf War
Robert DeVries on January 18, 2007 7:59 PM ET

[JURIST] More than a hundred officials of Saddam Hussein's regime have been charged for their roles in quelling the Shiite uprising [HRW report] following the 1990-91 Gulf War that resulted in the deaths of tens of thousands of Shiites, according to Iraqi High Tribunal prosecutor Jaafar al-Moussawi [JURIST news archive]. Among the 102 individuals expected to stand trial are Saddam's half brothers Watban, Ibrahim and Sabawi, the former president's secretary Abed Hmoud, former Deputy Prime Minister Tariq Aziz, former Vice President Taha Yassin Ramadan [Trial Watch profile], and former Defense Minister Ali Hassan al-Majid. Saddam's former deputy Izzat Ibrahim and former senior Baath party official Mohammed Younis al-Ahmed, currently fugitives, will stand trial in absentia. Charges against Hussein and former Prime Minister Mohammed Hamza al-Zubaidi, both now deceased, are expected to be dropped.

The trial will be the third involving Saddam-era officials. The first was the Dujail case [BBC timeline] involving crimes against humanity committed in that Iraqi town in 1982, which resulted in the hangings of Hussein and two of his co-defendants, with the likely hanging of a third pending. The second trial, still continuing, is a genocide case arising from the Anfal campaigns [HRW backgrounder] that killing over 100,000 Kurds in the late 1980s. AP has more.

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Hicks supporters decry new US military commission rules
Gabriel Haboubi on January 18, 2007 7:56 PM ET

[JURIST] The father and military lawyer of Australian Guantanamo Bay [JURIST news archive] detainee David Hicks [JURIST news archive] spoke out against new US military commission rules [manual, PDF; JURIST report] Thursday, insisting that the regulations are even more unfair for defendants than those which applied under the original commission system which the US Supreme Court struck down [JURIST report] last June. Hicks lawyer Major Michael Mori [Wikipedia profile] told the Australian Associated Press (AAP) that the old system allowed military defense lawyers to see all classified evidence even though defendant could not; the new system, however, only allows for summaries of the classified intelligence to be released to defense teams. The new rules also allow convictions based on hearsay and coerced evidence [JURIST report], while Mori said that the right to a speedy trial, the right against self-incrimination, and the right to confront an accuser have all been removed.

Hicks has been in American custody for 5 years, after being picked up in Afghanistan while allegedly fighting for the Taliban. His original charges [text, PDF; JURIST report], which were brought in 2004, have lapsed. In a radio interview [transcript] Thursday with the Australian Broadcasting Corp, Australian Foreign Affairs Minister Alexander Downer [official website] repeated an American commitment that new charges could be expected in the next few weeks. AAP has more.

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Myanmar military accuses democracy advocate of tax evasion
Gabriel Haboubi on January 18, 2007 7:04 PM ET

[JURIST] The military government of Myanmar [government website; JURIST news archive] has accused National League for Democracy [Wikipedia backgrounder] leader, and Nobel laureate Aung San Suu Kyi [advocacy website; BBC profile; JURIST news archive] of tax evasion, claiming in the state newspaper that she violated Myanmar law by spending her 1991 Nobel Peace Prize [award website] award money outside the country. The New Light of Myanmar [media website] reported that Kyi was fortunate to only be under house arrest. Kyi, who has spent 11 of the past 17 years either in prison or under house arrest for alleged violations of an anti-subversion law [text], had her house arrest extended for another year [JURIST report] last May. She won the Nobel Prize won during her in-home detention. Reuters has more.

Also on Thursday, a Japanese high court struck down a government order to deport Khin Maung Hla, a Myanmar pro-democracy activist who fled to Japan using a fake passport in 1992. It is notoriously difficult to obtain asylum in Japan, which grants refugee status to a minute fraction of those who apply. The Japan Times has local coverage. AP has more.

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Europe rights court says Russian military tortured Chechen brothers
Robert DeVries on January 18, 2007 6:56 PM ET

[JURIST] The European Court of Human Rights (ECHR) [official website] ruled [text] Thursday that two Chechen brothers were tortured by the Russian military during their 6-month detention in 2000 and awarded each brother €35,000 ($57,665) compensation. Adam and Arbi Chitayev, captured by Russian forces in April of 2000 and held for alleged ties to Chechen rebels [JURIST news archive], alleged that they underwent torture including electric shocks, exhaustion positions, beatings, strangulation, attacks by dogs, and the removal of skin with pliers. The brothers also claim they helped move bodies of deceased during their incarceration. The ruling marks the first such decision against Russian forces, although commentators previously accused Russia of torture in Chechyna[JURIST report].

The Chitayevs attribute their survival to human rights group Memorial [advocacy website] and to Anna Politkovskaya [JURIST news archive], a crusading Russian journalist murdered in Moscow last year who penned an article highlighting their plight that was published only days before the brothers' release. Previously the ECHR held Russia legally responsible [JURIST report] for the deaths and disappearance of three people in Chechnya. Multiple rights groups and investigatory bodies have previously condemned Russian for rights abuses and torture [JURIST report] in the troubled region. Reuters has more.

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New military commissions manual allows convictions on hearsay, coerced evidence
Joshua Pantesco on January 18, 2007 3:42 PM ET

[JURIST] Terror detainees may be convicted solely on hearsay or coerced evidence and defendants may not present classified evidence unless the government approves its use, according to the Manual for Military Commissions [PDF text; AFPS report], released by the US Defense Department Thursday. The manual describes the procedures to govern upcoming detainee trials under the Military Commissions Act of 2006 (MCA) [PDF text; JURIST news archive]. AP has more.

President George W. Bush signed the Military Commissions Act [CRS summary] in October after the US Congress approved the bill [JURIST report] in late September. The law became necessary after the US Supreme Court ruled last June that the commissions, as initially constituted by the president, lacked proper legal authorization [JURIST report]. The law provides statutory authorization for military commission trials for Guantanamo Bay [JURIST news archive] detainees, and US Air Force Colonel Moe Davis, chief prosecutor for the trials, said earlier this month that he expects revised charges to be filed by February [JURIST report].

Under the MCA, the president is authorized to establish military commissions to try unlawful enemy combatants. The commissions are authorized to sentence defendants to death, and defendants are precluded from invoking the Geneva Conventions [ICRC materials] as a source of rights during commission proceedings. The law also allows hearsay evidence to be admitted during proceedings, so long as the presiding officer determines it to be reliable.

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Gonzales balks at releasing FISC order authorizing domestic surveillance
Joshua Pantesco on January 18, 2007 2:30 PM ET

[JURIST] US Attorney General Alberto Gonzales told the Senate Judiciary Committee [official website] Thursday that it is not "[his] decision" whether or not the Justice Department agrees to release the text of the order granted by the Foreign Intelligence Surveillance Court (FISC) [FJC backgrounder] authorizing government surveillance of transmissions coming into or going outside of the country where one party was suspected of association with a terrorist organization. Gonzales notified the Committee of the order [JURIST report] via letter on Wednesday. Gonzales was unresponsive when ranking committee member Sen. Arlen Specter (R-PA) asked whether the order provides the FISC with blanket authority to approve all DOJ wiretap requests. During the oversight hearing [SJC materials], the committee released a letter from presiding FISC judge Colleen Kollar-Kotelly agreeing to release any documents relating to FISC oversight of the domestic surveillance program [JURIST news archive], pending approval from the Justice Department. Also on Thursday, National Intelligence Director John Negroponte told the House Intelligence Committee that releasing the text of the order could implicate separation of power issues.

The Justice Department has not decided whether to drop its appeal [JURIST report] of an August district court decision [PDF text] declaring the NSA domestic surveillance program unconstitutional [JURIST report]. The case may now be moot, as Gonzales' letter [PDF text; JURIST report] makes clear that the program as challenged will no longer exist. In October, the US Court of Appeals for the Sixth Circuit [official website] ruled [text, PDF; JURIST report] that the program could continue to operate during the appeal process. AP has more.

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Former UK Home Secretary scolds judges over terror cases
Katerina Ossenova on January 18, 2007 12:27 PM ET

[JURIST] Former UK Home Secretary Charles Clarke [BBC News profile] criticized Britain's judges Thursday for rulings that he said undermined the war on terror. Clarke, who led the Home Office [official website] from December 2004 until May 2006, spoke before the Lords Constitution Committee [official website] about the inability of judges to see the implications of their rulings on national security and told members of the UK parliament's upper chamber that anti-terrorist laws are in a "legal and parliamentary circus." Saying that that the Law Lords sitting in Britain's highest court were ill-prepared to discuss what was behind new laws, Clarke stated that "this is a ludicrous way of proceeding which dangerously undermines confidence in every aspect of the police and criminal justice system at a time when the public first and foremost seeks protection against terrorist threats." Clarke also criticized the Court of Appeal for a ruling last spring that allowed nine Afghani airplane hijackers to remain in the UK [JURIST report] for fear they would be tortured in their home country. That controversy prompted debate [JURIST report] about whether Britain's Human Rights Act [text; backgrounder; JURIST news archive] should be revised. The Independent has more.

This is not the first time that Clarke has assailed the judiciary. Last July he similarly took senior British judges to task over terrorism [JURIST report], saying that they had repeatedly refused to meet with him to discuss the interpretation of human rights law in light of security needs, and that their disengagement had to change as it was fuelling "dangerously confused and ill-informed debate which challenges Britain's adherence to the European convention on human rights." Similarly-critical views have been expressed by US cabinet members speaking of their own judges; in a speech [JURIST report] Wednesday, US Attorney General Alberto Gonzales noted that "a judge will never be in the best position to know what is in the national security interests of our country."

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Europe court allows PKK appeal against EU terror designation to proceed
Katerina Ossenova on January 18, 2007 11:48 AM ET

[JURIST] The European Court of Justice (ECJ) [official website] held [judgment] Thursday that the militant Kurdistan Worker's Party (PKK) [official website; FAS backgrounder] can appeal the decision of the Council of the European Union [official website] in 2002 to include the PKK on its list of terrorist organizations. The court set aside a lower court ruling which held that Kurdish leader Abdullah Ocalan [official website], now serving a life prison sentence in Turkey, cannot proceed with the appeal since the PKK no longer existed. The ECJ said [press release] that an "organization cannot, simultaneously, have an existence sufficient for it to be subject to restrictive measures laid down by the Community legislature and not have an existence sufficient to contest those measures."

The PKK was outlawed in Turkey, the United States [JURIST report], and the European Union after the militant group waged a violent campaign to establish an independent Kurdish state in southeast Turkey. Other prominent groups on the European Union's list of terrorist organizations include Hamas [CFR backgrounder; JURIST news archive], Euskadi Ta Askatasuna (ETA) [BBC backgrounder] and the Liberation Tigers of Tamil Eelam (LTTE) [CFR backgrounder; faction website]. AFP has more.

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Bush pushes legislation to bar discrimination based on genetic testing
Katerina Ossenova on January 18, 2007 11:10 AM ET

[JURIST] President Bush Wednesday urged Congress to pass the Genetic Information Nondiscrimination Act of 2007 [HR 493 text, PDF], promoting genetic testing for disease by making genetic discrimination illegal. In a speech [text] at the National Institutes of Health [official website], Bush said "If a person is willing to share his or her genetic information, it is important that that information not be exploited in improper ways - and Congress can pass good legislation to prevent that from happening. In other words, we want medical research to go forward without an individual fearing of personal discrimination."

Genetic nondiscrimination legislation was passed unanimously by the Senate in 2003 but failed in the House of Representatives. Representative Louise Slaughter (D-NY) [official website] reintroduced the latest bill this week. If passed, it will establish "a national and uniform basic standard is necessary to fully protect the public from discrimination and allay their concerns about the potential for discrimination, thereby allowing individuals to take advantage of genetic testing , technologies, research, and new therapies." The New York Times has more.

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Fifth US serviceman pleading guilty to Hamdania Iraqi civilian murder
Joshua Pantesco on January 18, 2007 8:14 AM ET

[JURIST] US Marine Cpl. Trent Thomas is expected to plead guilty during a Thursday court hearing to unpremeditated murder charges stemming from the alleged murder of Iraqi civilian Hashim Ibrahim Awad [Wikipedia profile] in Hamdania [USMC timeline; JURIST news archive]. Awad was allegedly shot and killed by eight servicemen who allegedly left Awad's body by the side of the road with a shovel and AK-47, making him look like an insurgent. Thomas will be sentenced within the next several weeks.

Thomas is the fifth serviceman to plead guilty in the case, in which seven Marines and one Navy corpsman were originally charged [JURIST report]. US Marine Lance Cpl. Jerry E. Shumate Jr., Marine Pfc. John J. Jodka, Navy Petty Officer 3rd Class Melson J. Bacos, [JURIST reports] and Marine Lance Cpl. Tyler Jackson [advocacy website; JURIST report] have also pleaded guilty in exchange for their testimony in the case. All have named US Marine Sgt. Lawrence Hutchins III [JURIST report] as the mastermind of the plan. Jodka has been sentenced to 18 months in military custody while Jackson and Shumate [JURIST reports] have both received 21-months sentences. Hutchins faces court-martial [JURIST report] for murder, kidnapping and other charges. AP has more.

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UN SG Ban concerned over stalled Hariri tribunal
Joshua Pantesco on January 18, 2007 7:51 AM ET

[JURIST] UN Secretary-General Ban Ki-moon [official profile] said Wednesday that he is concerned about the status of ongoing discussions between the UN and Lebanon on the proposed UN-supported international tribunal [JURIST news archive] to try suspects accused of assassinating former Lebanese Prime Minister Rafik Hariri in February 2005. Ban said [transcript]:

It is important that the Security Council has decided to establish a special tribunal. The United Nations has concluded agreement with the Lebanese Government. It is a source of concern for me, as Secretary-General, that we are not being able to establish a special tribunal, as was mandated by the Security Council. At the same time, I was encouraged by the willingness of the Lebanese Government to work together for the establishment of a special tribunal, including President [Emile] Lahoud and Speaker of the Parliament [Nabih] Berri. I will discuss again this matter with the Lebanese leaders when I meet them in Paris.
The Lebanese cabinet approved a draft plan [JURIST report] for the tribunal in November despite the resignation of all six pro-Syrian members. In December, Lebanese President Emile Lahoud [official profile] formally refused to endorse the document [JURIST report], calling on the cabinet to take up the proposal again "when there is a legitimate and constitutional government."

The measure has been approved by the UN but requires backing by both Lahoud and the Lebanese parliament before the tribunal can said to have been formally accepted. AP has more.

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Terror watch list to be culled: TSA official
Joshua Pantesco on January 18, 2007 7:32 AM ET

[JURIST] The "no-fly" terrorist watch list now used by the Transportation Security Administration (TSA) [official website] is being redrafted and will likely be cut in half, according to testimony [prepared statement, written testimony, PDF] given by TSA Administrator Kip Hawley during a Wednesday Senate Commerce Committee [official website] hearing. Hawley said that "To assure the accuracy of the No-Fly list itself, we will shortly conclude a case by case review of every name on the No-Fly list" and that the TSA Secure Flight Program [TSA backgrounder], scheduled to come into effect in 2008, will replace current watch list efforts. The Secure Flight Program will transfer the responsibility of checking passenger information against the watch list from the aircraft operator to the TSA itself. Hawley also testified that a 100 percent requirement for physically inspecting all air cargo, as recommended by the 9/11 Commission and passed by the House of Representatives last week, may not be as effective as other security measures.

In October, the Governmental Accountability Office (GAO) reported that erroneous terrorism watch lists slow travel [JURIST report], and a July study [PDF text] by the Department of Homeland Security [official website] suggested that the watch list system was inefficient [JURIST report]. The US Department of Justice reported [JURIST report] last year that the list was missing some names, was based on incomplete and inaccurate information, and mischaracterized the danger posed by nearly 32,000 suspects who are not designated as targets of significant security action. 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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