JURIST - Paper Chase: Friday, November 16, 2007

PAPER CHASE ARCHIVE
Serious law. Primary sources. Global perspective.

Legal news from Friday, November 16, 2007

US Marine defers plea at Haditha killings arraignment
Georgian Republic lifts state of emergency
Federal appeals court rules against Islamic charity in NSA wiretapping lawsuit
Turkish prosecutor moves to ban Kurdish party
Pakistan PCO amended to allow presidential revocation of emergency
Rwanda investigators wrap up probe into alleged French role in Rwandan genocide
UN committee approves death penalty moratorium
Over 1000 foreign rights abusers living in US: DHS
New York appeals court upholds Kozlowski grand larceny conviction
Bush nominates 5 to top DOJ posts
UN rights envoy compiling report on Myanmar crackdown on dissidents
US House approves surveillance bill without telecom immunity

Friday, November 16, 2007

US Marine defers plea at Haditha killings arraignment
Mike Rosen-Molina at 8:01 PM ET

[JURIST] A US Marine invoked his right to defer his plea at his Friday military arraignment [USMC press release] on charges stemming from the killings of 24 Iraqi civilians in Haditha [USMC timeline; JURIST news archive] in November 2005. A lawyer for Lt. Col. Jeffrey R. Chessani [JURIST news archive] did say that he planned to plead not guilty. Trial has been scheduled for April 28. Chessani faces court-martial for dereliction of duty and violation of a lawful order based on the allegations that he failed to properly investigate shootings, and could serve three years in prison if convicted on all counts. AP has more.

Chessani, the former commander of the Third Battalion, 1st Marine Regiment [official website], did not order an immediate investigation into the deaths because he did not suspect any wrongdoing. In a sworn statement made to military investigators, Chessani said that he did not see any cause for alarm and that he believed at the time that killings followed a complex attack by insurgents attempting to lure Marines into shooting into homes where civilians were located. It has been alleged that the civilians were murdered in cold blood [JURIST report], but Chessani said that when he first learned of allegations that the civilians were killed intentionally he thought that the claims were baseless. On Tuesday, Lance Cpl. Stephen B. Tatum [advocacy profile], who served under Chessani, also declined to enter a plea [JURIST report] during his arraignment. Tatum faces a maximum of 19 years in prison if found guilty of involuntary manslaughter, reckless endangerment, and aggravated assault charges. Related charges [text] against four servicemen have been dropped.

Georgian Republic lifts state of emergency
Mike Rosen-Molina at 5:41 PM ET

[JURIST] The Georgian Republic ended its national state of emergency [JURIST report] Friday, as promised earlier this week. On Wednesday, Georgian Speaker of Parliament Nino Burdzhanadze [BBC profile] had announced in a televised statement on behalf of the government that emergency rule would be lifted Friday. A government spokesperson also announced Friday that Georgian Prime Minister Zurab Nogaideli has resigned; Georgian President Mikheil Saakashvili [official website] has appointed banker Lado Gurgenidze [Goizueta profile] as his successor.

After several days of protests, Nogaideli announced a presidential decree last week temporarily banning demonstrations and public calls for violence or government overthrow. Saakashvili has blamed Russian spy agencies for instigating the protests [speech], though the Russian Foreign Ministry has dismissed those claims [statement]. In August, a Georgian court sentenced 12 opposition activists [JURIST report] to prison terms of up to eight-and-a-half years for participating in a coup plot that Saakashvili alleged was backed by Russia. Saakashvili has allied himself closely with the US and NATO since taking office in 2004, and Georgian authorities alleged that the convicted opposition activists had been supported by the Russian security services. Georgian-Russian relations have deteriorated markedly [JURIST report] in the last year. AP has more.

Federal appeals court rules against Islamic charity in NSA wiretapping lawsuit
Mike Rosen-Molina at 4:48 PM ET

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] Friday ruled [PDF text] that a defunct Muslim charity cannot use a document turned over to it by the US government as evidence that it was the subject of an illegal wiretap. The court held that a secret call log accidentally given to lawyers for the Al-Haramain Islamic Foundation by the US Treasury Department qualifies as a state secret [SourceWatch backgrounder] and cannot be entered into evidence in the foundation's lawsuit against the government because of national security interests. The court sent the lawsuit back to the trial court, but the case is not expected to survive if the foundation cannot rely on the call log.

The Oregon lawsuit, filed [JURIST report] by the now-defunct foundation in February 2006, claims that the National Security Agency illegally wiretapped several conversations between the charity and its attorneys, having failed to get a court order as required by the Foreign Intelligence Surveillance Act (FISA) [text; JURIST news archive]. In September 2006, lawyers for the US Department of Justice asked the Ninth Circuit Court of Appeals to reverse a district court ruling [JURIST report] allowing the charity's lawsuit to proceed. Earlier that month, the lower court judge denied the government's motion to dismiss [opinion, PDF], rejecting contentions [JURIST report] that the proceeding would reveal state secrets. AP has more. Wired has additional coverage.

Turkish prosecutor moves to ban Kurdish party
Mike Rosen-Molina at 4:05 PM ET

[JURIST] Turkish lawmakers Friday moved to disband the country's leading pro-Kurdish political party and boot its representatives from parliament. Chief Prosecutor Abdurrahman Yalcinkaya charged the Democratic Society Party [party website] with separatism after members gave speeches last week in support of autonomy for Kurds living in the country's southeast. The prosecutor's office will send an indictment to the Constitutional Court of Turkey [official website]. Turkish politicians have also accused the the Democratic Society Party of links to the rebel Kurdistan Workers' Party [BBC backgrounder], which has been designated as a terrorist organization by both the United States and the European Union. AP has more.

In February, Turkish authorities charged [JURIST report] Democratic Society Party leader Hilmi Aydogdu with inciting hatred after stating that any Turkish attack on Kirkuk [Global Security backgrounder], a city in northern Iraq with a large Kurdish population, would be comparable to an attack on all Kurds. Growing hostility between Kurds, Arabs, and Turks in Kirkuk, as well as suspicions that Iraqi Kurds seek to create an independent state with Kirkuk as its capital, has made Turkey wary. The country has suggested that it might protect its interests in the oil-rich city with military force.

Pakistan PCO amended to allow presidential revocation of emergency
Katerina Ossenova at 1:15 PM ET

[JURIST] General Pervez Musharraf [official website; JURIST news archive] Thursday amended [amendment text] the Provisional Constitution Order (PCO) [text] issued under the country's declaration of emergency rule on November 3 to allow the country's president to revoke the state of emergency. The original PCO was issued by Musharraf in capacity as head of the military, but Musharraf said earlier this week that he expected to resign that position [JURIST report] by the end of the month, retaining his presidential post. On Friday Pakistani Attorney General Malik Qayyum said that Musharraf wanted to reserve the power of lifting the state of emergency since he was the one to impose it. Qayyum also said he expected the state of emergency would be lifted within two months, which would carry it beyond the anticipated date of parliamentary elections. Dawn has more.

Former Pakistani prime ministers Benazir Bhutto [personal website] and Nawaz Sharif [BBC profile] both slammed the amendment as portending a lengthy period of emergency. Dawn has more.

Rwanda investigators wrap up probe into alleged French role in Rwandan genocide
Patrick Porter at 1:05 PM ET

[JURIST] Rwandan investigators delivered a report Friday to Rwandan President Paul Kagame [official website; BBC profile] on alleged French involvement in the 1994 genocide [HRW backgrounder; BBC backgrounder] in the African nation. Specific details have not yet been disclosed, but Rwandan Attorney General Tharcisse Karugarama told Reuters that "the report does implicate very heavily different key players in the Rwandan genocide." He added that the report will not be made public until authorities "analyze it and take necessary action in regard to the recommendations." France has denied allegations that its forces trained militias responsible for the genocide. Reuters has more.

Rwanda began the probe [JURIST report] into France's alleged role in the genocide late last year after Kagame publicly accused [JURIST report] France of supporting the 1994 genocide by providing Hutu militias with training and weapons. The African nation severed diplomatic ties [JURIST report] with France last year after a report filed by French anti-terrorism judge Jean-Louis Bruguiere [BBC profile] implicated Kagame in the 1994 killing of then-Rwandan President Juvenal Habyarimana [Britannica profile]. The downing of the plane carrying the Hutu leader sparked the genocide in which more than 800,000 people were killed in the span of 100 days. Kagame has denied any involvement in the downing of his predecessor's plane. In October, the Rwandan government established a commission [JURIST report] to investigate the circumstances surrounding the 1994 assassination.

UN committee approves death penalty moratorium
Jaime Jansen at 11:50 AM ET

[JURIST] The UN General Assembly's Third Committee [official website] on Thursday voted 99-52 to place a worldwide moratorium [press release] on the death penalty [JURIST news archive]. Thirty-three countries abstained from the vote. Opponents of the resolution [text; JURIST report], including Singapore, Egypt, and Botswana, argued [JURIST report] before the committee Wednesday that it would infringe on nations' sovereignty, and presented a list of 14 last-minute amendments emphasizing nations' right to set criminal punishments. The amendments were all ultimately rejected. The US voted against the resolution, which will go to the UN General Assembly [official website] later this year. Though non-binding, supporters of the resolution believe international opinion against capital punishment is growing.

The resolution states that capital punishment "undermines human dignity," that "there is no conclusive evidence of the death penalty's deterrent value" and that "any miscarriage or failure of justice in [its] implementation is irreversible and irreparable." Two previous attempts to abolish the death penalty failed to win a majority in the 192-member assembly. This time, however, the resolution calls for a suspension, rather than a complete abolition, of capital punishment. BBC News has more. The UN News Centre has additional coverage.

Over 1000 foreign rights abusers living in US: DHS
Jaime Jansen at 11:19 AM ET

[JURIST] More than 1,000 suspected human rights abusers from 85 countries are currently living in the United States, according to to a statement [text] delivered by Marcy Forman, director of the Investigations Office of the US Department of Homeland Security [official website], to the Senate Judiciary Committee's Subcommittee on Human Rights and the Law. Forman noted that Immigration and Customs Enforcement (ICE) [official website] has over 140 pending investigations of 800 leads on rights violations committed predominantly in Central and South America, Haiti, the Balkans, and Africa by people now residing in the United States, but added that the US often cannot assert jurisdiction over crimes committed in foreign countries. According to Forman, ICE has since 2003 arrested more than 100 and deported 238 suspected human rights abusers.

Sen. Dick Durbin (D-IL) [official website] chaired the Wednesday hearing [press release] examining rights violations committed abroad by people now living in the US. He noted that "America has become a safe haven for the perpetrators of some of the world's most notorious war crimes" and urged lawmakers to make identification and prosecution of rights violators a priority. AFP has more.

New York appeals court upholds Kozlowski grand larceny conviction
Jaime Jansen at 10:53 AM ET

[JURIST] A New York appellate court unanimously upheld [opinion] the convictions of former Tyco International [corporate website] CEO L. Dennis Kozlowski [JURIST news archive] and former CFO Mark Swartz Thursday, rejecting arguments that the pair had been convicted of grand larceny, securities fraud and falsifying business records [JURIST report] on insufficient evidence. The court affirmed their eight to 25-year prison sentences [JURIST report] and fines of $70 million for Kozlowski and $35 million for Swartz. Lawyers for the two said they would try to appeal to the New York Court of Appeals [official website], New York's top court. Last month, Corporate Officers & Directors Insurance (CODA), a subsidiary of ACE Bermuda, filed a petition [JURIST report] in a New York trial court requesting an order compelling Kozlowski to pay the insurer approximately $1.97 million. CODA provided directors and officers liability insurance to Kozlowski, and won an arbitration award in the UK for recovery of money paid in legal fees to the former executive.

Tyco suffered one of the most infamous corporate fraud scandals [JURIST news archive] in modern times when Kozlowski and Swartz were found guilty of looting the company and defrauding its shareholders out of more than $150 million in unauthorized personal compensation. Tyco settled SEC charges [JURIST report] of fraudulent accounting in April 2006 for $50 million. In July, a federal judge gave preliminary approval [JURIST report] to a $3.2 billion settlement agreement [JURIST report] between Tyco International, Tyco's former auditor PricewaterhouseCoopers [corporate website], and investors who were harmed by fraudulent accounting practices orchestrated by Tyco's former top executives. Bloomberg has more.

Bush nominates 5 to top DOJ posts
Jaime Jansen at 9:38 AM ET

[JURIST] US President George W. Bush Thursday announced five nominations [WH press release] for top posts in the US Department of Justice (DOJ), including a federal judge sitting in Chicago for the number two spot. Bush's nominations include:

US District Judge Mark Filip [UChicago profile] for deputy attorney general;
US Attorney Kevin O'Connor [official profile] for associate attorney general;
Acting Associate General Attorney Gregory G. Katsas [official profile] for assistant attorney general of the civil division;
Deputy Assistant Attorney General of the Civil Rights Division Grace Chung Becker [ICAS profile] for assistant attorney general of the civil rights division; and
private attorney Nathan Hochman [firm profile] for assistant attorney general of the tax division.

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) Thursday declined to set a time table for Senate confirmation of the nominations, saying that he wants to ensure the nominees "are committed to restoring the independence and mission of the Justice Department."

Bush had previously decided on all five nominations, but waited for Attorney General Michael B. Mukasey to be sworn in [JURIST report] and approve the list. Mukasey succeeds former US Attorney General Alberto Gonzales [JURIST news archive], whose resignation [JURIST report] took effect in September. Gonzales resigned from his post after months of controversy over the Justice Department's handling of the firings of eight US Attorneys [JURIST news archive] and subsequent allegations that he may have perjured himself [JURIST report] in testimony before Congress. Leahy expressed hope Thursday that Mukasey and whomever fills the vacant DOJ spots will restore the department's integrity. The New York Times has more. AP has additional coverage.

UN rights envoy compiling report on Myanmar crackdown on dissidents
Jaime Jansen at 9:12 AM ET

[JURIST] UN Special Rapporteur on Human Rights Paulo Sergio Pinheiro [official profile] said Friday that he obtained enough information from a five-day visit [JURIST report] to Myanmar to determine the number of people killed during September's crackdown on pro-democracy protests [JURIST report]. Pinheiro said he will compile his findings and report them to the UN Human Rights Council in December. Pinheiro was in Myanmar to investigate allegations of abuse related to the military junta crackdown on dissent, where the government has to-date reported that 10 people died and 3,000 activists were detained [JURIST report]. Pinheiro said Friday that the government has now acknowledged 15 deaths [Reuters report] during the crackdown on protests. Dissident groups say that the death doll was much higher [CBC report].

Pinheiro met with several prominent political prisoners during his visit to Myanmar, but his request to see opposition leader and Nobel laureate Aung San Suu Kyi [JURIST news archive] was denied by the ruling junta. Among the detainees Pinheiro was able to speak with was prominent labor activist Su Su Nwe [AHRC materials], who was arrested Tuesday [JURIST report] while posting a leaflet outside of Pinheiro's hotel. AP has more.

US House approves surveillance bill without telecom immunity
Jaime Jansen at 8:02 AM ET

[JURIST] The US House of Representatives passed the RESTORE Act of 2007 ("Responsible Electronic Surveillance That is Overseen, Reviewed and Effective Act of 2007") [HR 3773 materials] by a margin of 227-187 [roll call] late Thursday without including a provision that would grant immunity to telecommunication companies [JURIST report] that aided the US government in its domestic surveillance program [JURIST news archive]. The House Judiciary and Intelligence committees advanced [JURIST report] the bill to the House floor last month. If the legislation passes in the Senate, the RESTORE Act would replace the temporary Protect America Act [S 1927 materials], signed [JURIST report] in August, as the law governing foreign surveillance. It permits eavesdropping on foreign targets operating outside the US, but if the surveillance targets are thought to be communicating with Americans, the government must apply for an "umbrella" court order from the Foreign Intelligence Surveillance Court (FISC) [official backgrounder] to conduct surveillance for up to one year. In an emergency, the government may begin surveillance immediately and apply for a FISC court order within seven days.

The White House on Thursday confirmed President George Bush's intent to veto the bill [SAP, PDF] without an immunity provision for telecommunications companies:

H.R. 3773 is deficient in several particular aspects:...

Fails to Provide Retroactive Liability Protection for Companies Alleged to Have Assisted the Government in the Wake of the September 11 Terrorist Attacks. The Administration strongly opposes H.R. 3773 because it fails to grant liability protection to companies alleged to have assisted the Government's counterterrorism efforts in the aftermath of the September 11th attacks. It is a matter of basic fairness that providers who are alleged to have provided assistance to the Government in the wake of these terrorist attacks should not face liability claims. It also is critical to our national security that such companies be protected from litigation, since companies that face lawsuits for allegedly assisting the Government may be unwilling to provide assistance if and when it is needed to prevent future terrorist attacks.

Other criticisms the White House had of HR 3773 were that it limits the type of foreign intelligence information that can be acquired, "creates unnecessary obstacles to collection against foreign intelligence target located outside" the US, "does not provide certainty" for US intelligence agents, "imposes inappropriate and burdensome oversight provisions," and that it "unnecessarily raises highly complex legal questions."

The Senate Judiciary Committee this week considered whether to include the immunity provision [JURIST report] in the Senate version of the bill, and ultimately decided to leave the immunity language in the Senate bill [S 2248 materials], allowing the full Senate to debate the provision. Earlier this month, former US Attorney General John Ashcroft urged Congress [JURIST report] to include the blanket immunity provision in the RESTORE Act in a New York Times op-ed. AP has more.

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