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Legal news from Thursday, April 26, 2007

ICC urged to probe Canadian Afghan detainee transfers
Mike Rosen-Molina on April 26, 2007 6:52 PM ET

[JURIST] Two Canadian law professors and human rights activists have written to the International Criminal Court (ICC) [official website], asking it to investigate "possible war crimes" by top Canadian defence officials. Michael Byers of the University of British Columbia and William Schabas [university profiles], now at the National University of Ireland, sent a letter to ICC chief prosecutor Luis Moreno-Ocampo accusing Canadian Defence Minister Gordon O'Connor [official website] and Chief of Canada's Defence Staff Gen. Rick Hillier [official profile] of transferring detainees to Afghan custody despite a strong possibility that they would be tortured. In response to criticism about the transfers, including opposition calls for his resignation [JURIST report], O'Connor Wednesday announced the start of a new arrangement between Canada and Afghanistan that will allow Canadian officials to inspect Afghan prisoners after they had been transferred to Afghan custody to make sure that they have not subjected to torture; Prime Minister Stephen Harper [official website] said Thursday that the new agreement would soon be "formalized."

In February the Canadian government ordered an official inquiry [JURIST report] into reported detainee abuse by Canadian troops in Afghanistan. The probe began following a civilian complaint filed by University of Ottawa law professor Amir Attaran [Sourcewatch profile], whose research [Globe and Mail report] uncovered a pattern of suspicious injuries on three detainees captured last April and later released. In 2005, Hillier signed the Canada-Afghanistan Detainee Agreement [text] authorizing the transfers; Attaran said the agreement did not give Canada the power to inspect detainees [JURIST report] after their transfers, thus allowing broad latitude for torture to occur. CBC News has more.

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'Spambot' creators facing federal lawsuit in Virginia
Mike Rosen-Molina on April 26, 2007 5:38 PM ET

[JURIST] A Utah-based anti-spam technology company filed a lawsuit in US District Court in Alexandria Thursday in an effort to identify the people behind so-called "spambots" [Wikipedia backgrounder], programs that search the Internet for e-mail addresses to sell to spammers. Unspam Technologies Inc. [corporate website] operates a spam harvester-tracking Web site called Project Honey Pot [project website] that has collected thousands of Internet addresses connected to spam harvesters. It has been unable to link those addresses to actual people, but hopes to do so during the discovery process of the lawsuit, said plaintiff's lawyer Jon Praed. Although collecting e-mail addresses is not illegal, using that information to spam is prohibited under federal and state laws. Praed said Unspam can show that the emails were collected for that purpose. AP has more.

This is the latest effort to combat the growing problem of Internet spam. In 2004, a Maryland judge struck down [JURIST report] as unconstitutional the state's 2002 Commercial Electronic Mail Act, the first state law to punish senders of spam. Also in 2004, several major Internet companies filed anti-spam lawsuits [JURIST report] under the federal CAN-SPAM Act of 2003 [PDF], which prohibits deceptive or abusive web advertising techniques such as the use of false return addresses or misleading subject lines to trick users into opening messages.

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Two more Guantanamo detainees transferred: DOD
Mike Rosen-Molina on April 26, 2007 4:56 PM ET

[JURIST] The US Department of Defense (DOD) announced the transfer of two more Guantanamo Bay [JURIST news archive] detainees Thursday - one to Afghanistan and another to Morocco, reducing to approximately 380 the number of detainees remaining at Guantanamo. According to a DOD press release [text], these latest transfers

are a demonstration of the United States’ desire not to hold detainees any longer than necessary. It also underscores the processes put in place to assess each individual and make a determination about their detention while hostilities are ongoing – an unprecedented step in the history of warfare.

The Department of Defense has determined - through its comprehensive review processes - that approximately 80 detainees at Guantanamo are eligible for transfer or release. Departure of these detainees is subject to ongoing discussions between the United States and other nations.
The Department says that some 80 detainees held at the US military prison are currently eligible for transfer back to their home countries, including 55 deemed eligible [JURIST report] last month after a second round [summary, PDF] of administrative review board (ARB) [DOD materials] hearings held at Guantanamo between January 30, 2006 and December 6, 2006. DOD has more.

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White House admits federal agency election briefings as Hatch Act probe continues
Mike Rosen-Molina on April 26, 2007 4:09 PM ET

[JURIST] The White House admitted Thursday to holding about 20 briefings throughout 2006 and 2007 for federal agency employees to discuss the electability of Republican candidates, meetings similar to a January presentation that critics allege violated the Hatch Act [OSC materials]. The Hatch Act prohibits the use of government resources for political purposes, and the US Office of Special Counsel (OSC) [official website] has recently expanded ongoing investigations [JURIST report] into a broader probe of "illegal political activities across the executive branch." Similar meetings were also held prior to 2006. A White House spokesperson said that no records were kept of how many meetings were held, but she denied that any laws were broken [transcript], insisting "there is no prohibition under the Hatch Act of allowing political appointees to talk to other political appointees about the political landscape in which they are trying to advance the President's agenda. None." She added that the White House counsel's office had approved the meetings.

In January General Services Administration (GSA) [official website] Administrator Lurita Doan [official website] allegedly asked those present at a GSA briefing to consider how the GSA could help Republican candidates in the next round of elections. The OSC is examining whether similar presentations were given at other federal agencies [WashPost report]. The White House has also been criticized in the context of the US Attorney firings [JURIST news archive] after disclosing that at least 21 White House staffers used Republican National Committee e-mail accounts while at work to avoid liability under the Hatch Act. AP has more.

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Putin halts Russian implemention of Europe arms treaty citing NATO 'build up'
Bernard Hibbitts on April 26, 2007 4:09 PM ET

[JURIST] Russian President Vladimir Putin [official website] said in a speech [text, in Russian; text, in English] to both houses of the Russian parliament Thursday that he was putting Russia's implementation of the terms of the Conventional Forces in Europe (CFE) Treaty [text; backgrounder] on hold in the face of what he called a US-led NATO military "build up" in Europe, and would "look at the possibility of ceasing our commitments under the CFE treaty" if there was "no progress in the negotiations" with the US and NATO on deployment of weapons systems. Putin accused NATO countries not respecting the terms of the the treaty, "building up military bases on our borders and, more than that....also planning to station elements of anti-missile defence systems in Poland and the Czech Republic."

The CFE Treaty, concluded in 1990 by the 22 members of NATO and the former Warsaw Pact, regulates deployment of non-nuclear forces in Europe. Putin said Russia's moratorium would continue "until all countries of the world [sic] have ratified [the treaty] and started to strictly implement it." Putin's speech, described as "hawkish" by observers, follows a controversial address in Munich earlier this spring in which the Russian leader criticized what he called the "dangerous" use of force by the United States [JURIST report] around the world in defiance of international law. Reuters has more.

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EPA proposes first new power plant pollution standard since high court ruling
Bernard Hibbitts on April 26, 2007 3:33 PM ET

[JURIST] The US Environmental Protection Agency [press release] Wednesday proposed a new rule [press release] for the calculation of power plant emissions subject to additional pollution controls, adopting a standard recently criticized by the Supreme Court in a ruling earlier this month. The new Supplemental Notice of Proposed Rulemaking or Prevention of Significant Deterioration and Nonattainment New Source Review: Emission Increases for Electric Generating Units [PDF text; EPA fact sheet] indicates that power plants can utilize an hourly emissions rate for pollutants instead of the annual rate traditionally used, a change which critics and environmentalists say allows a plant to pump more pollutants into the air over time. A spokesman for the EPA said that the agency was empowered to use the new standard in the context of a new rule.

In Environmental Defense Fund v. Duke Energy Corp. [opinion; JURIST report] the high court said that a lower court had improperly ruled in favor of Duke Energy in its own challenge to the annual standard, although the court did not rule on the legality of an hourly standard as such. AP has more.

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Egypt trial of Muslim Brotherhood members begins
Mike Rosen-Molina on April 26, 2007 3:18 PM ET

[JURIST] Forty top members of the banned Muslim Brotherhood [party website; FAS backgrounder] went before a secret military court in Egypt [JURIST news archive] Thursday on charges of terrorism and money laundering. Defense lawyers announced that they would boycott the proceedings because they were not notified of the trial beforehand and only learned of it from their clients. The defendants — 33 of whom are in custody, with seven others being tried in absentia - refused to respond in court without their lawyers present. A civilian court ordered the release of a number of defendants, including Brotherhood deputy supreme guide Khairat al-Shatir [BBC report], in January, several days before Egyptian President Hosni Mubarak [official profile; JURIST news archive] ordered the Brotherhood members tried before the military court. A civilian court issued a second order for their release on Tuesday. AP has more.

The Brotherhood has been banned since 1954, but has grown into Egypt's most powerful opposition movement, holding 88 seats in the 454-seat parliament. Egyptian police arrested 31 Brotherhood members in June and an additional 72 members [JURIST reports] in February. Over 700 Brotherhood members are believed to be in police custody. The government accuses the organization of trying to create an Islamic theocracy, but the Brotherhood claims the crackdown was meant to quell opposition to constitutional amendments [JURIST report] proposed by Mubarak last year. The amendments passed [JURIST report] by referendum in March.

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New Hampshire legislature passes civil unions bill
Jeannie Shawl on April 26, 2007 1:16 PM ET

[JURIST] The New Hampshire Senate voted 14-10 Thursday in favor a bill allowing same-sex civil unions [HB 437 text], sending the legislation on to Gov. John Lynch for signature. The bill, passed [JURIST report] by the state House of Representatives earlier this month, would authorize same-sex couples to enter into civil unions with "the same rights, responsibilities, and obligations as married couples." Lynch said last week that he will sign the legislation [JURIST report].

Currently, Massachusetts, Vermont, Connecticut, and New Jersey are the only states that recognize full civil unions. The Oregon House of Representatives approved a civil unions bill [JURIST report] earlier this month, and Washington's State Senate passed a domestic partnership bill [JURIST report] last month. New York Governor Eliot Spitzer said earlier this week that he would introduce legislation to legalize same-sex marriage in New York [JURIST report]. AP has more.

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Ukraine elections postponed as constitutional court weighs dissolution decree
Bernard Hibbitts on April 26, 2007 11:43 AM ET

[JURIST] Ukrainian President Viktor Yushchenko [official website; BBC profile] announced in a national address Wednesday that he was postponing until June 24 [press release] parliamentary elections originally scheduled for May 27 to avoid funding problems and allow more time for preparation ahead of a vote. The postponement came as Ukraine's Constitutional Court [official website] completed its public hearings [JURIST report] on the legality of Yushchenko's April 2 dissolution of parliament [decree text; Yushchenko statement] and is seen as a political gesture [JURIST report] towards the government of Prime Minister Viktor Yanukovych, Yushchenko's arch-rival, who has challenged [JURIST report] the dissolution decree with the support of his current majority in the Ukrainian parliament. The 18-member Constitutional Court is slated to deliver its ruling May 5. AP has more.

Yushchenko has insisted [JURIST report] that his decree was proper under the Ukrainian constitution [DOC text]. Yushchenko and Yanukovich were fierce rivals in the 2004 presidential election [JURIST report], the results of which were invalidated by the country's Supreme Court [JURIST report] following fraud allegations. Yushchenko was sworn in as Ukraine's president [JURIST report] in January 2005 on the wings of the populist Orange Revolution [BBC timeline] after winning a re-vote. Yushchenko reluctantly accepted Yanukovich as prime minister last June and the two have since clashed over parliamentary attempts to expand the cabinet's power [JURIST reports] at the expense of the presidency.

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Spitzer plans bill to bolster abortion rights in New York
Jeannie Shawl on April 26, 2007 11:25 AM ET

[JURIST] New York Governor Eliot Spitzer said Wednesday the he plans to submit legislation [press release] that would "establish a fundamental, statutory right to privacy for women in making personal reproductive decisions." Spitzer's proposed Reproductive Health and Privacy Protection Act would revise the state's abortion laws to allow late-term abortions when necessary to protect a woman's health and would "ensure the right of all New Yorkers to use or refuse contraceptives."

The US Supreme Court last week upheld [text; JURIST report] a federal law banning so-called "partial-birth" abortion even though the law did not create an exception for the health of the mother. Spitzer said Wednesday:

Basic respect for legal precedent, a sound understanding of scientifically-grounded medicine, and the unequivocal belief that private medical decisions should be left to the women facing them, dictate that we must reaffirm our commitment to a woman's right to choose. In the wake of the recent United States Supreme Court ruling, this legislation is a necessary measure to ensure that a woman's fundamental right to privacy in New York is protected at all costs, and not beholden to either archaic state statutes or an overreaching federal government.
Meanwhile, in another state legislative development influenced by the Supreme Court decision, the North Dakota Legislative Assembly passed a bill [PDF text; JURIST report] earlier this week prohibiting abortion [JURIST news archive] in the state if the US Supreme Court ever declares that such a move would be constitutional. North Dakota's governor is expected to sign that bill. The New York Times has more.

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Iowa General Assembly passes gay rights bill
Brett Murphy on April 26, 2007 11:15 AM ET

[JURIST] The Iowa House of Representatives [official website] voted 59-37 Wednesday to approve a bill [SF427 materials; JURIST report] that will provide equal opportunity protection to gays and lesbians in employment, housing, and education. The House approved the bill after adding an amendment stating that the state's current definition of marriage as between a man and a woman was not changed by the legislation. The Iowa Senate approved the House amendment by a vote of 34-16.

The bill now awaits the approval of Iowa Gov. Chet Culver [official website], who has said he will sign the legislation. AP has more. Radio Iowa has additional coverage.

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Bangladesh lifts restrictions on ex-PMs as corruption probe continues
Jeannie Shawl on April 26, 2007 11:02 AM ET

[JURIST] A ban preventing former Bangladeshi Prime Minister Sheikh Hasina [Wikipedia profile] from returning to the country and restrictions on Khaleda Zia [Virtual Bangladesh profile], another former prime minister and Hasina's former political rival, have been lifted, according to statements from the interim Bangladeshi government late Wednesday. There are, however, indications that corruption investigations into the two former politicians are continuing, as bank officials said Thursday that they have been told to hand over bank records for Hasina, Zia and their families.

Hasina was charged [JURIST report] in absentia earlier this month with four counts of murder arising from the deaths of four protesters during political turmoil in Bangladesh [JURIST news archive] in October. She has denied the allegations and has said that she plans to return to Bangladesh to fight the charges, but was prevented from boarding a plane to Dhaka this weekend after being banned from entering the country [JURIST report]. An arrest warrant was issued for Hasina last weekend, but was suspended [JURIST reports] Monday.

Two of Zia's sons have been arrested on corruption allegations, though one has already been released from custody [JURIST reports]. It had been reported that Zia had reached an agreement with the current military-backed government to go into exile if her sons could go with her. The government said Wednesday that no restrictions have been put on Zia's movements and there is not pressure for her to leave the country. AFP has more.

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Congressman proposes student privacy law change after Virginia Tech shootings
Jeannie Shawl on April 26, 2007 10:51 AM ET

[JURIST] US Rep. Tim Murphy (R-PA) proposed legislation [press release] Wednesday that "will allow schools and universities to share a student's mental health information with their parents or guardians if the student is found to be at risk of suicide, or of committing homicide or physical assault." Announced in the wake of the shootings [WashPost coverage; JURIST news archive] at the Virginia Polytechnic Institute which left 33 people dead last week, the Mental Health Cooperation Act for Families and Schools would clarify when schools can release information about a student's mental health to their parents under the Federal Educational Rights and Privacy Act of 1974 [20 USC 1232(g) text; Dept. of Ed. materials].

Murphy noted that "far too often schools are too worried about litigation rather than the overall well-being of the students on campus" and said that the bill would "remove this fear and allow schools to communicate with parents on the best needs of their child." AP has more.

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Guantanamo detainees ask Roberts to suspend habeas-stripping case rejection
Jeannie Shawl on April 26, 2007 9:57 AM ET

[JURIST] Lawyers representing Guantanamo Bay detainees urged US Supreme Court Chief Justice John Roberts Wednesday to suspend the Court's order denying certiorari [application, PDF] and allow detainees 120 days to petition the court for a rehearing [application, PDF] in two cases challenging provisions of the Military Commissions Act (MCA) [PDF text; JURIST news archive] stripping the right of detainees to file habeas corpus challenges. The Supreme Court earlier this month denied certiorari [JURIST report] in the proceedings, prompting the Justice Department to seek the dismissal [press release; JURIST report] of all pending Guantanamo habeas cases.

In the latest Supreme Court filings, lawyers for detainees argue that if the court doesn't suspend its order denying certiorari, the DOJ's motion will be granted and their clients will suffer irreparable harm. AP has more. SCOTUSblog has additional coverage.

4/27/07 - Roberts denied the detainees' requests [in-chamber opinion, PDF] Thursday. AP has more.

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Top US officer at Camp Cropper charged with aiding enemy
Bernard Hibbitts on April 26, 2007 9:41 AM ET

[JURIST] The US military announced Thursday that the former commander of the 451st Military Police Detachment responsible for the detention facility at Camp Cropper near Baghdad has been charged [Central Command press release] with multiple offences under the Uniform Code of Military Justice [text], including aiding the enemy, unauthorized possession of classified information, disobeying orders, and various counts of conduct unbecoming an officer, including fraternization with the daughter of a detainee and having an improper relationship with an interpreter. Lt. Col. William H. Steele was additionally charged with possessing pornographic videos contrary to a general order. The charge of aiding the enemy was laid for supposedly "providing an unmonitored cellular phone to detainees." The offences were allegedly committed between October 2005 and February 2007. Steele was arrested last month and is currently being held in Kuwait pending an Article 32 hearing [JAG backgrounder] and possible court-martial.

Camp Cropper [Wikipedia backgrounder], located near Baghdad International Airport, is the second-largest US-run military prison [WP report] in Iraq after Camp Bucca in the wake of the closing of the notorious Abu Ghraib [JURIST news archive] prison which the US emptied [JURIST report] and transferred to the Iraqi government in 2006. Cropper currently has some 3000 inmates. For several years previous it held a variety of high value detainees, including former Iraqi Deputy Prime Minister Tariq Aziz, who is still there. A US military spokesman said Thursday that it was not, however, the holding facility for late Iraqi president Saddam Hussein as generally reported in the media; Hussein was brought to the camp for medical checks and was held there immediately prior to his execution but was incarcerated at another secret facility. The Washington Post has more.

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DOJ seeking additional restrictions on Guantanamo lawyer-detainee contact
Jeannie Shawl on April 26, 2007 9:08 AM ET

[JURIST] Lawyers visiting Afghan detainee Haji Bismullah [Wikipedia profile] at Guantanamo Bay [JURIST news archive] should be subject to tightened restrictions [proposed protective order, PDF], including limited access to their client and evidence, the US Justice Department has urged in court papers [motion, PDF; brief, PDF] filed with the US Court of Appeals for the District of Columbia Circuit. Under the DOJ proposal, lawyers would only be allowed to visit the detainee once in order to obtain authorization for legal representation, lawyers would be permitted only three visits with their current client, and mail sent to Bismullah from his lawyers would be subject to review by intelligence officers and military lawyers not involved in the prosecution of the detainee's case. Under current rules, there is no limit on lawyer-detainee visits and mail is only searched for contraband, but is not read. The DOJ has also requested that government officials be allowed to deny Bismullah's lawyers access to classified evidence used during Combatant Status Review Tribunals [DOD materials] to determine whether Bismullah should be classified as an "enemy combatant."

The Justice Department said that the new restrictions are necessary because lawyers have "caused unrest" at Guantanamo, such as hunger strikes [JURIST report] and other protests, have provided detainees with information about events outside the prison, and have provided media outlets information from detainees. Military officials seized legal papers [JURIST report] from Australian detainee David Hicks as part of its investigation into several detainee suicides at Guantanamo last year, and the DOJ later told a US court that paper provided by lawyers may have aided the suicide plot. The papers seized include notes marked "privileged attorney-client material" and suggest that detainees were misusing the attorney-client communication system [JURIST reports] in what Guantanamo commander Rear Adm. Harry B. Harris Jr. labeled acts of "asymmetric warfare." The federal appeals court is scheduled to consider the DOJ's proposal at a May 15 hearing. Thursday's New York Times 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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