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Legal news from Tuesday, February 12, 2008

Scalia says 'so-called torture' may not be unconstitutional
Mike Rosen-Molina on February 12, 2008 7:33 PM ET

[JURIST] US Supreme Court Justice Antonin Scalia [LII profile] Tuesday defended the use of harsh physical interrogation techniques, saying in an interview [recorded audio] with Law in Action [media website] on BBC Radio 4 that they may be justified to deter an immediate threat. Scalia argued that "so-called torture" may not necessarily be prohibited by the US constitution, as he said the Eighth Amendment bar against "cruel and unusual punishment" was only intended to apply to criminal punishments:

Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited under the Constitution? Because smacking someone in the face would violate the Eighth Amendment in a prison context. You can’t go around smacking people about.

Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to this society? It’s not at all an easy question, to tell you the truth.
In the same interview, Scalia criticized European opposition to the death penalty as "self-righteous," saying that most Europeans probably privately support the use of capital punishment despite the official stance of European governments. BBC News has more.

Scalia has long been known for bluntly expressing controversial opinions. In 2006, he sparked a furor in the lead-up to oral arguments in Hamdan v. Rumsfeld [Duke Law backgrounder; merit briefs] on the constitutionality of using presidentially-authorized military tribunals [JURIST news archive] to try foreign terror suspects, when he commented [JURIST report] that "foreigners, in foreign countries, have no rights under the American Constitution."

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Senate Democrats reject DOJ case against retroactive reduced crack cocaine penalties
Kiely Lewandowski on February 12, 2008 6:09 PM ET

[JURIST] US Senate Democrats announced their continued support Tuesday for a US Sentencing Commission [official website] decision to give retroactive effect [JURIST report] to sentencing guidelines that would narrow the disparity between sentences for offenses involving powder and crack cocaine, rejecting Department of Justice arguments against the retroactivity because the courts could be overwhelmed with inmates appealing their sentences. The sentencing disparity has long been politically controversial, as crack cocaine sentences disproportionately levied against blacks are traditionally up to 100 times more severe than powder cocaine sentences more often levied against whites. Revised sentencing guidelines took effect November 1, and the Sentencing Commission voted in December to give retroactive effect to the provision. Retroactivity will take effect on March 3, 2008.

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) criticized [statement text] testimony given by Attorney General Michael Mukasey [official profile; JURIST news archive] to the House Judiciary Committee last week that the proposed guidelines would result in the early release of hundreds of violent criminals:

Most disappointing is this administration's failure to support even modest reforms of unjust, overreaching mandatory drug penalties. Last week the new Attorney General testified before the House Judiciary Committee in ways designed to raise fear and create the false impression that 1,600 violent gang members and dangerous drug offenders will be instantaneously and automatically set free to prey on hapless communities. As the Attorney General, himself a former Federal judge, should have known, and as he had to concede when questioned before that Committee, no one can be released without a hearing before a Federal judge who is obligated to evaluate each case and to consider factors such as the criminal history and violence. And the Justice Department participates in those hearings.
Mukasey's testimony [JURIST report; statement, PDF] before the House Judiciary Committee suggested he would ask Congress to enact legislation to prevent the new crack cocaine guidelines from taking retroactive effect, though he indicated that he may support the shorter recommended prison sentences for first-time, nonviolent offenders:
Retroactive application of these new lower guidelines will pose significant public safety risks; risks that will be disproportionately felt in urban communities. Many of these offenders are among the most serious and violent offenders in the federal system and their early release at a time when violent crime is rising in some communities will produce tragic, but predictable results. These individuals could very well be released without the benefit of appropriate re-entry programs, increasing the risks of recidivism and further imperiling the safety of the communities to which they would return. Moreover, retroactive application of these penalties will be difficult for the legal system to administer given the large number of cases requiring resentencing and uncertainties as to certain key legal issues, such as the degree to which the prior sentence can be reduced. This increase would impose significant hardships on the federal judicial docket and risk delaying the timely administration of justice in both criminal and civil cases, while diverting law enforcement resources critically needed to fight violent crime. Prosecutors reasonably made their cases based on the sentences available at the time.

As a result, we think it is imperative for Congress to pass legislation to address the Sentencing Commission's decision. In calling for action, I emphasize that we are not asking this Committee to prolong the sentences of those offenders who pose the least threat to their communities, such as first-time, non-violent offenders. Instead, our objective is to address the Sentencing Commission's decision in a way that protects public safety and addresses the adverse judicial and administrative consequences that will result from retroactive application of these lower guidelines.
AP has more.

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Iraq parliament speaker threatens to dissolve fractious assembly after lawmaker walkout
Devin Montgomery on February 12, 2008 6:02 PM ET

[JURIST] Shi'ite and Sunni lawmakers walked out of Iraq's parliament [official website, in Arabic] Tuesday, prompting speaker Mahmoud al-Mashhadani [JURIST news archive] to threaten to disband the legislature. The walkout was sparked by divisions between Kurdish and other lawmakers over what percentage of the national income [JURIST report] should be reserved for the Kurdish semi-autonomous region. The walkout blocked a vote on the $48 billion 2008 Iraqi budget, an amnesty law [JURIST report] that would release roughly 5,000 prisoners, and a bill that would detail the relationship between Iraq's central and local governments.

The walkout and threat of dissolution represent a significant set-back for the government, which had been praised earlier this week by US Defense Secretary Robert Gates for recently passing a law allowing the reentry of former Baathists into government [JURIST report]. Al-Mashhadani said that sectarian distrust was so entrenched that the only solution might be to hold new elections. If parliament is dissolved, new elections would have to be held within 60 days. Reuters has more. AP has additional coverage.

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US copyright group says Canada joining China, Russia as top violator
Deirdre Jurand on February 12, 2008 5:35 PM ET

[JURIST] China, Russia and Canada are the main violators of US copyright law, according to report [text, PDF] issued Monday by a US-based industry group. The International Intellectual Property Alliance (IIPA), a consortium of seven trade associations representing 1,900 US companies producing and distributing copyrighted materials, found that the number of violations had increased over the past year due to what it called the "explosive growth of online and mobile piracy." A survey of 51 countries showed a total loss of $18.4 billion in revenue from these acts. The IPAA recommended [IIPA press release, PDF] that the office of the United States Trade Representative (USTR) [official website] establish stronger international anti-piracy norms, more effective enforcement and more international law enforcement cooperation. China and Russia are traditional targets of the IIPA and US officials working on copyright issues; those officials have criticized Canadian copyright law for being the most lax among the G7 nations. Canadian lawmakers are preparing draft legislation to address the concerns, but many Canadians have protested more stringent copyright regulation.

In October 2007, American and European official announced plans for multinational negotiation [JURIST report] of an Anti-Counterfeiting Trade Agreement (ACTA) to promote international enforcement of copyright law [JURIST news archive]. Talks have begun between the US, the European Union nations, Switzerland, Canada, Mexico, Japan, South Korea, and New Zealand on the agreement, which will increase scrutiny and enforcement against piracy and counterfeiting. Reuters has more. CBC News has additional coverage.

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Senate limits debate on surveillance bill granting telecoms immunity
Caitlin Price on February 12, 2008 3:35 PM ET

[JURIST] The US Senate voted 69-29 [roll call] Tuesday in favor of a cloture motion [Senate backgrounder] limiting further debate on a bill [S 2248 materials] which would provide immunity for telecommunications companies [JURIST report] from lawsuits related to their participation in the NSA warrantless surveillance program [JURIST news archive]. Congress has mulled the controversial issue of telecom immunity while working on long-term legislation to "modernize" the 1978 Foreign Intelligence Surveillance Act (FISA) [text]; the Bush administration has indicated it will veto [JURIST report] any legislation passed without a telecom liability protection. The Senate delayed voting [JURIST report] in December; Tuesday's cloture motion is expected to lead to a quick passage of the bill. Differences still remain with the House version of the legislation [HR 3773 materials; JURIST report], which does not contain an immunity provision.

Also Tuesday, the Senate approved by voice vote an increase in the power of Foreign Intelligence Surveillance Court (FISC) [official backgrounder] to monitor the government's eavesdropping on American citizens. FISA currently allows the US government to eavesdrop inside of the US without court approval as long as one end of a conversation is reasonably perceived to have been outside of the US; the amendment will extend the court order requirement to Americans located overseas. AP has more.

2/13/08 - The Senate passed the FISA Amendments Act Tuesday evening by a vote of 68-29 [roll call].

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Yahoo! stockholders sue over rejected Microsoft takeover bid
James M Yoch Jr on February 12, 2008 2:11 PM ET

[JURIST] The Wayne County Employees' Retirement System (WCERS) [official website] on Monday filed a complaint in the Delaware Court of Chancery [official website] challenging the decision of the Yahoo! [corporate website] board of directors to repudiate an unsolicited takeover offer made February 1 by Microsoft [corporate website] for the Internet giant. Microsoft's takeover bid [press release], which offers $31 per share of Yahoo! stock and totals approximately $44.6 billion, was formally rejected by Yahoo's directors on Monday. The board said that the offer, which comes at a 62 percent premium over Yahoo!'s stock trading price, "substantially undervalued" the company [press release]. WCERS, a Micihigan retirement board that owns 13,600 shares of Yahoo! stock, has requested an order from the Court of Chancery forcing the board to consider takeover bids from Microsoft and other suitors. Meanwhile Microsoft has indicated that it will seek a stockholder vote on its bid.

The Yahoo! board can further stymie Microsoft's ability to acquire the company by implementing a defensive mechanism known as a shareholder rights plan or poison pill, although WCERS's stockholder suit combined with the potential for more lawsuits makes it unlikely. Under the plan, Yahoo! stockholders can purchase new shares at a 50 percent discount if one stockholder, such as Microsoft, acquires more than 15 percent of Yahoo!'s stock without the board's approval. The plan also allows the board to issue as many as 10 million preferred shares at any price. If the board intends to utilize the plan, Microsoft could also nominate its own slate of directors to be considered for board membership at the next Yahoo! stockholders' meeting.

The stockholder suit filed by WCERS is not the only lawsuit that Yahoo! faces. On February 1, a Tennessee law firm filed a request for class action status [SFGate report] in Santa Clara Superior Court in connection with a bid made by Microsoft and rejected by the Yahoo! board last year. CBC News has more.

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ICTR defense investigator pleads not guilty in witness bribing case
Caitlin Price on February 12, 2008 12:54 PM ET

[JURIST] Rwandan defense investigator Leonidas Nshogoza pleaded not guilty Monday before the International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] to charges of contempt and attempted contempt of the ICTR. Nshogoza was arrested in June 2007 for allegedly bribing witnesses, fabricating evidence and "interfering in the administration of justice" during an appeal of the 2004 conviction [JURIST report] of former Rwandan Higher Education Minister Jean de Dieu Kamuhanda [TrialWatch profile]. Nshogoza was provisionally released from police custody [JURIST report] in November 2007 and voluntarily surrendered last week after the ICTR issued an international arrest warrant for him. ICTR defense lawyers have demanded Nshogoza's unconditional release and criticized the laying of the charges for undermining the independence of the tribunal. The UN News Centre has more.

Last December, the ICTR sentenced a former witness [JURIST report] in Kamuhanda's appeal to nine months in prison for contempt of court and giving false testimony before the tribunal. Kamuhanda is currently serving two life sentences [IRIN report] for genocide and extermination. The ICTR was established to try genocide suspects for crimes occurring during the 1994 Rwandan conflict [HRW backgrounder] between Hutus and Tutsis in which approximately 800,000 people, primarily Tutsis, died.

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South Africa proposes disbanding corruption investigation agency
Leslie Schulman on February 12, 2008 12:33 PM ET

[JURIST] South African Safety and Security Minister Charles Nqakula [official profile] on Tuesday introduced in parliament a proposal to dissolve the Directorate of Special Investigations [official backgrounder; BBC report], also known as "The Scorpions," a special agency in South Africa's National Prosecuting Authority (NPA) [official website] that has been in charge of investigating organized crime and corruption since 1999. Opponents of Nqakula's proposal say that the ruling African National Congress (ANC) [party website] is seeking to protect its members after the NPA initiated investigations into several party leaders. Under the proposal, the agency would be disbanded by the summer and all investigatory duties handed over to the police force.

In December, the NPA indicted [JURIST report] politician Jacob Zuma [BBC profile; JURIST news archive], charging him with corruption, fraud, money laundering and racketeering, after an investigation headed by the Scorpions. Zuma was elected leader of the ANC in December and is slated to become the country's next president. Zuma's supporters have dismissed the charges [JURIST report] as politically motivated. BBC News has more.

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EU inspectors conduct surprise Intel raid in antitrust probe
Leslie Schulman on February 12, 2008 12:03 PM ET

[JURIST] The European Commission (EC) [official website] Tuesday carried out an unannounced inspection [press release] at the Munich office of semiconductor manufacturing giant Intel [corporate website], as part of an investigation into Intel's possible anticompetitive practices directed at rival chip maker Advanced Micro Devices (AMD) [corporate website]. The European Union last year accused Intel of violating European antitrust law [JURIST report] by providing "substantial rebates" to various original equipment manufacturers (OEMs) if the OEMs purchased the majority of their processors from Intel. The EU has said that Intel may have violated Article 81 and Article 82 [texts] of the EC Treaty. Intel has insisted that it merely engaged in "pro-competition" which was "ultimately beneficial to consumers."

Similar probes into Intel's practices have been conducted by the Korean Fair Trade Commission [official website; JURIST report] and the Japan Fair Trade Commission [official website]. Last October, the US Federal Trade Commission said it would not open a formal investigation [JURIST report] into allegations that Intel offered unfair discounts to eliminate competition from AMD. Intel could face fines in both Europe and South Korea for engaging in anti-competitive behavior. AP has more.

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Milosevic widow, son could be tried in absentia on smuggling charges: Serb prosecutor
Michael Sung on February 12, 2008 9:53 AM ET

[JURIST] The widow and son of former Serbian president Slobodan Milosevic [JURIST news archive] could be tried in absentia on charges that the two organized a cigarette smuggling ring in Serbia during the 1990s, Serbian organized crime prosecutor Miljko Radisavljevic said Tuesday. Mirjana Markovic [BBC profile; Interpol warrant] and her son Marko Milosevic [Interpol warrant] currently reside in Russia and have been granted refugee status by the Russian government. Markovic is also being investigated for her alleged involvement in the 2000 assassination of former Serbian President Ivan Stambolic.

Last June, Serbia's top organized crime prosecutor indicted [JURIST report] Markovic and her son on the smuggling charges. In July 2006, a Serbian court reissued an international arrest warrant for Markovic because she had on multiple occasions failed to appear in court [JURIST reports] to face abuse of power charges. AP has more.

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Russia, China propose draft treaty on use of weapons in space
Joshua Pantesco on February 12, 2008 9:41 AM ET

[JURIST] Russian Foreign Minister Sergei Lavrov on Tuesday submitted to the 2008 Conference on Disarmament (CD) [official website] a draft treaty, jointly proposed with China, that would regulate the use of weapons in space. According to a press release [text] from the conference:

Sergey Lavrov, the Minister for Foreign Affairs of the Russian Federation, today officially submitted a joint Russian-Chinese draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects, to the Conference on Disarmament. He also spoke about the uncertain future of Russian-American efforts in the area of limitation and reduction of strategic offensive arms, setting out Russian initiatives and concerns in that area. ...

Mr. Lavrov, recalling that the Strategic Arms Limitation Treaty (SALT I) would expire in December 2009, said that, as far back as three years ago, Russia had offered the idea of developing and concluding a new full-fledged agreement on further and verifiable reduction and limitation of strategic offensive arms. However, it had so far been impossible to arrive at acceptable solutions. Specifically, the Russian Federation could not but feel concerned over the situation in which – with the looming prospect of expiration of the [Strategic Arms Limitation] Treaty [SALT 1] – the United States was increasingly making efforts to deploy its global Anti-Ballistic Missile system. And if one also placed on the balance pan the "global lightening strike" concept, providing the capability of striking targets at any point on the Globe with nuclear and conventional strategic means within one hour after a decision was taken, the risks for strategic stability and predictability became more than obvious.

On the issue of the draft outer space treaty, Mr. Lavrov noted that modern international space law did not prohibit deployment in space of weapons other than weapons of mass destruction. However, such weapons would be fit for real use, generate suspicions and tensions among States and frustrate the climate of mutual trust and cooperation in space exploration, rather than being a means of containment. Also, weapons deployment in space by one State would inevitably result in a new spiral in the arms race. The draft Treaty introduced today served to eliminate existing lacunae in international space law, to create conditions for further exploration and use of space, to preserve costly space property, and to strengthen general security and arms control. It was time to start serious practical work in this field; otherwise, they would miss the opportunity to do so.
In January, China sparked an international outcry [BBC report] by successfully launching a missile that destroyed a weather satellite. Many countries expressed concern that the destruction of the satellite would create large amounts of debris in space, interfering with or threatening other satellites. Other countries said that China's actions could induce future arms movements into space [CNS backgrounder]. In October, US President George W. Bush authorized the first changes to the US space policy in nearly 10 years by asserting authority to deny access to space [JURIST report] to any adversary hostile to US interests. In 2002, China and Russia jointly proposed an explicit ban on weapons in space [PDF text; China Daily report], but the US opposed the measure, arguing that the 1967 Outer Space Treaty [text] already provided enough protection against the practice. AFP has more.

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Denmark police arrest suspects in alleged plot to kill Muhammad cartoonist
Joshua Pantesco on February 12, 2008 9:11 AM ET

[JURIST] Danish police on Tuesday arrested several people suspected in a plot to murder Danish cartoonist Kurt Westergaard, one of the 12 cartoonists who published cartoons [Le Monde slideshow] of the Muslim prophet Muhammad in 2005 that sparked widespread protests across the Islamic world. According to Danish newspaper Jyllands-Posten, which first published the cartoons in September 2005, the Danish police service PET [official website] has followed the group of suspected conspirators for months. PET said the arrests were preemptive and designed to stop the conspiracy before it advanced beyond the planning stages. AP has more. Jyllands-Posten has local coverage, in English.

The Muhammad cartoon controversy [JURIST report] led to a number of international lawsuits and arrests alleging defamation of character and disruption of the peace. A French court in March 2007 dismissed charges [JURIST report] against Charlie-Hebdo magazine and its director after the court found that the defendants had not purposely meant to offend Muslims. In September, Bangladeshi authorities arrested [JURIST report] cartoonist Arifur Rahman and suspended the publication of weekly satire magazine Alpin after it reprinted the cartoon. Last month, a former newspaper editor in Belarus was sentenced to three years in prison [JURIST report] for reprinting the cartoons in the Zhoda newspaper.

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Indonesia judge rules Suharto civil corruption case will continue
Michael Sung on February 12, 2008 8:58 AM ET

[JURIST] An Indonesian court ruled Tuesday that the children of former Indonesian President Haji Mohammed Suharto [BBC profile; JURIST news archive] will have to defend Suharto's estate against a civil corruption case. A prosecutor said that all of Suharto's six children will be summoned to court next week, and one will be appointed to represent Suharto in further proceedings. Suharto, who ruled Indonesia from 1967 to 1998, faced government charges that he embezzled $440 million from the Yayasan Supersemar [official website], a state-funded scholarship fund, between 1974 and 1998. He died [JURIST report] in late January. Prosecutors are seeking to recover $440 million in diverted state funds [JURIST report] and $1.1 billion in damages from Suharto's estate.

Suharto presided over what is considered one of the most brutal dictatorships of the 20th century with as many as one million political opponents killed during his time in power. Earlier criminal corruption charges were dropped because Suharto was rendered unable to speak or write [JURIST reports] as a result of several strokes. Reuters has more.

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Federal judge allows limited probe into White House office in missing e-mails case
Joshua Pantesco on February 12, 2008 8:10 AM ET

[JURIST] A federal judge on Monday issued an order [PDF text] permitting the government watchdog group Citizens for Responsibility and Ethics in Washington (CREW) [advocacy website] to conduct "very limited" discovery in its case against the White House Office of Administration (OA) [official website], the government office that provides administrative services to the Executive Office of the President. CREW filed a lawsuit [complaint, PDF; case materials] against the OA last May under the Freedom of Information Act (FOIA) to force the OA to respond to CREW's FOIA request for "documents relating to the loss of email records of the Executive Office of the President from EOP-managed email systems and environments." Though the OA has responded to FOIA requests in the past, the administration argued in this case that the OA is not an agency under the meaning of FOIA [JURIST report] and that it is not independent of the executive branch. On Monday, US District Judge Colleen Kollar-Kotelly permitted CREW to conduct "very limited" discovery on the issue of whether the OA is subject to FOIA. The parties will submit discovery plans by February 21.

The issue of missing e-mails has been an ongoing controversy throughout the Bush administration, arising first during the CIA leak investigation and again during the US Attorney firing scandal [JURIST news archives]. Last Tuesday, CREW urged US Attorney General Michael Mukasey to appoint a special counsel [JURIST report] to investigate whether the White House had violated the Federal Records Act and the Presidential Records Act [texts] in failing to preserve millions of missing White House e-mails. CREW has publicly alleged that White House officials may have deliberately lost or tampered with e-mail records to hide illegal conduct. 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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