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Legal news from Wednesday, February 27, 2008

Mukasey meets with prosecutors during first visit to Guantanamo Bay
Andrew Gilmore on February 27, 2008 7:42 PM ET

[JURIST] US Attorney General Michael Mukasey [official profile; JURIST news archive] made his first visit to the US military prison at Guantanamo Bay [JURIST news archive] Wednesday, where he met with military and Justice Department officials working on the military prosecution of six Guantanamo Bay detainees suspected of involvement in the Sept. 11 attacks, including alleged Sept. 11 mastermind Khalid Sheik Mohammed [BBC profile]. The US government announced charges [PDF text; press release] against the detainees earlier this month, saying that it will seek the death penalty [JURIST report] against the group of detainees. Mukasey's visit was unannounced, and he returned to Washington by the afternoon. AP has more. ABC News has additional coverage.

The US has said that some 80 Guantanamo detainees will eventually face prosecution under the military commissions system [DOD materials]. So far, commission cases [DOD materials] have been initiated against 13 detainees.

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Germany constitutional court overturns Internet surveillance law
Patrick Porter on February 27, 2008 7:23 PM ET

[JURIST] Germany's Federal Constitutional Court [official website] ruled Wednesday that a 2006 North-Rhine Westphalia [state government website, in German] law authorizing intelligence agents to search personal computers, networks, and Internet communications was unconstitutional. The court ruled [text, in German; press release, in German] that the law violates privacy rights, but said similar methods might be appropriate in limited, compelling circumstances, such as if a life was in danger or to prevent an immediate terrorist attack. Bloomberg has more. AFP has additional coverage.

Last year, the German Federal Court of Justice [official website, in German] ruled [text, in German, JURIST report] that police in Germany were not permitted to secretly access computer and Internet data stored on suspects' computers without proper authorization.

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US military designates Afghan journalist as enemy combatant
Andrew Gilmore on February 27, 2008 6:38 PM ET

[JURIST] An Afghan journalist working as a cameraman for Canadian television network CTV [media website] has been designated as an enemy combatant [JURIST news archive], a US military spokesperson said Wednesday. US officials alleged that Jawed Ahmad [SAJA report; CPJ report] had Taliban phone numbers and videos in his possession [CBC report] when he was detained by coalition forces on October 26 at a NATO airbase in Kandahar, but a US military spokesman declined to provide details of the evidence against Ahmad. Ahmad is now being detained at the Bagram Air Base [official website]. AP has more.

The Committee to Protect Journalists (CPJ) [advocacy website] has called on US authorities to disclose the evidence and charges against Ahmad [CPJ report]. US military forces have previously detained without charge journalists working in Iraq and Afghanistan. In December 2006, the Committee to Protect Journalists released a report [text; JURIST report] in which it noted that the US was detaining three journalists, including Al Jazeera cameraman Sami al-Haj [advocacy website; JURIST report] and AP photographer Bilal Hussein [AP materials].

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Sudan condemns Denmark over reprinting of Muhammad cartoons
Mike Rosen-Molina on February 27, 2008 6:27 PM ET

[JURIST] Sudanese President Omar El Bashir [BBC profile] Wednesday addressed a massive rally in Khartoum protesting the reprinting of a cartoon depiction of the Muslim prophet Muhammad [JURIST report] by Jyllands-Poste [media website] earlier this month, saying that he would ban all Danish citizens from entering the country and calling on Muslims to boycott Danish products. It was unclear if Sudan would expel Danes already inside the country. The Danish government did not respond to Bashir's statement, but Danish Foreign Minister Per Stig Moeller [official profile] said earlier that the Sudanese government has in the past used anti-western sentiments as a way to rally public support. AP has more.

Jyllands-Poste and 16 other Danish newspapers reprinted the cartoon [Le Monde slideshow] earlier this month one day after Danish police arrested three people [JURIST report] suspected in a plot to murder Danish cartoonist Kurt Westergaard for his characterization of Muhammad. Westergaard was one of 12 cartoonists who created the Muhammad cartoons [JURIST news archive] first published in 2005, which sparked widespread protests across the Islamic world.

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EPA head mum on White House influence in California emissions waiver denial
Mike Rosen-Molina on February 27, 2008 4:34 PM ET

[JURIST] The head of the US Environmental Protection Agency on Wednesday refused to say whether the White House had pressured the agency to reject California's request for a waiver that would have allowed the state to impose stricter greenhouse gas emissions standards on cars and light trucks. During testimony [statement, PDF] before the Senate Committee on the Environment and Public Works [official website], EPA Administrator Stephen L. Johnson [official profile] said that he had held routine discussions with White House officials about the waiver, but would not say whether the White House had influenced his decision. Johnson's testimony comes one day after internal documents [press release and excerpts; JURIST report] released by committee chairman Sen. Barbara Boxer (D-CA) [official website] revealed that EPA agents had urged Johnson to approve the waiver, saying that a denial could compromise the agency's integrity. AP has more.

In December 2007, the EPA denied [rejection letter, PDF; JURIST report] California's request for a waiver, with Johnson saying that a unified national standard for greenhouse gas regulation was preferable to a state-by-state network of regulations and pointing to the Energy Independence and Security Act of 2007 [HR 6 materials; WH fact sheet], signed into law that month by President George W. Bush. After the EPA decision, the Senate Environment and Public Works Committee and the House Oversight and Government Reform Committee [official website] said they would hold hearings on the issue, and EPA General Counsel Roger Martella, Jr. issued a memo instructing EPA employees to produce all communications between the EPA and the White House [JURIST report] in response to the inquiries. Boxer said Tuesday that the EPA had not yet released these communications.

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Iraq Presidency Council rejects draft local elections law
Alexis Unkovic on February 27, 2008 4:31 PM ET

[JURIST] Iraq's Presidency Council Wednesday rejected a draft provincial elections law that detailed the relationship between Iraq's central and local governments, sending the legislation back to the Iraqi Council of Representatives [official website, in Arabic]. The draft law was part of a package of legislation approved [JURIST report] by the Council of Representatives earlier this month that also included the 2008 budget and an amnesty bill [JURIST report] that will lead to the release of roughly 5,000 prisoners. The three-member Presidency Council, comprised of Iraqi President Jalal Talabani, Vice President Adel Abdul-Mahdi [BBC profiles], and Vice President Tareq al-Hashemi [personal website, in Arabic; EPIC profile, PDF], approved both the budget and the amnesty bill.

The proposed election law represented one of the 18 benchmarks [JURIST report] identified by the White House last year as important steps towards stability in Iraq. AP has more.

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Supreme Court hears Exxon Valdez punitive damages case
Alexis Unkovic on February 27, 2008 3:27 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] Wednesday heard oral arguments [transcript, PDF] in Exxon Shipping Co. v. Baker [SCOTUSblog backgrounder; merit briefs] 07-219, where the Court considered the punitive damages to be paid by Exxon Mobil [corporate website] for the 1989 Exxon Valdez oil spill [EPA backgrounder]. Several justices indicated they may be willing to reduce the punitive damages award, which is larger than the total of all punitive damages awards affirmed by all federal appellate courts in US history. Exxon Mobil and its shipping subsidiary have been ordered to pay $2.5 billion in punitive damages for the spill of 11 million gallons of crude oil in Prince William Sound, Alaska. Justices Anthony Kennedy and David Souter suggested a more reasonable award may be equal to twice the compensatory damages awarded. A final decision, with Justice Samuel Alito abstaining because he owns Exxon stock, is expected later in the spring.

In December 2006, the US Court of Appeals for the Ninth Circuit reduced [JURIST report] Exxon's original $5 billion punitive damage award by over $2 billion, ruling [PDF, text] that the award was excessive in light of a 2003 US Supreme Court ruling on the need for punitive damages to be reasonable and proportionate to the harm incurred and the cleanup and compensation efforts already made by Exxon. When the Court granted certiorari [JURIST report] in October, it agreed to consider three questions presented [PDF text] by the appeal, but declined to hear a claim that the verdict was excessive under the Constitution's Due Process Clause [text] and a cross appeal to reinstate the initial $5 billion damages award. AP has more.

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Turkish opposition appeals constitutional amendments lifting headscarf ban
Katerina Ossenova on February 27, 2008 2:54 PM ET

[JURIST] Turkey's main pro-secular opposition party appealed to the nation's Constitutional Court [official website, in Turkish] Wednesday to overturn recently approved amendments to the country's constitution [text] easing a ban on Islamic headscarves [JURIST report] in universities. The Republican People's Party [party website, in Turkish] says the ban is necessary to protect the separation of religion and state. The Grand National Assembly of Turkey [official website] earlier this month passed [JURIST report] the amendments by a final vote of 403-107, and Turkish President Abdullah Gul [official profile] approved [JURIST report] the constitutional amendments on Friday. BBC News has more.

Despite the reforms, at least 10 Turkish universities have continued [JURIST report] to enforce a ban on headscarves. Headscarves and other forms of Muslim traditional religious dress [JURIST news archive] have long been banned from many public places in modern Turkey, a majority Muslim country despite official secularism. The new law alters the constitution and Higher Education Law No. 2547 [HRW backgrounder] to allow scarves tied at the chin. Chadors, veils and burqas reportedly are still banned.

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Spain court convicts 20 on lesser charges in National Court bomb plot
Katerina Ossenova on February 27, 2008 2:31 PM ET

[JURIST] A Spanish National Court judge Wednesday acquitted 20 suspected terrorists of the most serious charges related to an alleged plot to bomb the National Court in Madrid [BBC report] but convicted them on lesser charges [PDF verdict, in Spanish]. The court convicted 18 of the 20 suspects of belonging to a terrorist organization and two of conspiring in the bomb plot. In early February, the court ordered the release [JURIST report] of another 10 suspects who were acquitted of all charges. Only five of those suspects were actually released, however, as they have unrelated charges pending against them. Those convicted received five to 15-year sentences.

The 30 defendants, who first went on trial [JURIST report] in October 2007, are accused of planning to ram a truck loaded with 1,100 pounds of explosives into the court house. A Spanish judge first charged 17 members [JURIST report] of the group in 2004 after police initially arrested eight suspects [JURIST reports] in the plot. The group's alleged mastermind, Abderrahmane Tahiri, also known as Mohamed Achraf, was extradited by Switzerland to Spain [BBC report] in 2005. The Spanish National Court is widely viewed as the center of Spain's anti-terror investigations, and the bomb plot was aimed at killing the country's top judges. AP has more.
El Mundo has local coverage.

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Pakistan opposition party promises independent judiciary
Katerina Ossenova on February 27, 2008 1:49 PM ET

[JURIST] The Pakistan People's Party (PPP), which along with former prime minister Nawaz Sharif's Pakistan Muslim League (PML(N)) [party websites] will form Pakistan's new coalition government, vowed Tuesday to make Pakistan's judiciary fully independent. Asif Zardari [BBC profile], the new leader of the PPP and widower of former Pakistani Prime Minister Benazir Bhutto [BBC obituary; JURIST news archive], promised to strengthen the judiciary "by radically altering the mode of appointments of judges and [by] giving it financial and administrative independence."

Last week, the two main opposition parties agreed to work together [JURIST report] toward the reinstatement of former Pakistani Chief Justice Iftikhar Mohammed Chaudhry [JURIST news archive] and other superior court judges who were ousted [JURIST report] in November 2007 by Pakistani President Pervez Musharraf. AP has more.

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Mexico lower house approves judicial reform bill
Katerina Ossenova on February 27, 2008 1:21 PM ET

[JURIST] Mexico's lower house of Congress, the Chamber of Deputies [official website, in Spanish], on Tuesday passed a bill [text; debate transcript, both in Spanish] on Tuesday authorizing a variety of judicial reforms [press release, in Spanish]. With a vote of 462-6 [tally, in Spanish], legislators overwhelmingly approved a bill which provides for public and oral trials, guarantees the presumption of innocence and allows for the use of recorded telephone conversations as evidence with consent. While the original legislation included a provision which would have allowed police to search homes without a warrant if they believed there was imminent danger to a person or if a crime was being committed, the bill was adopted without this provision [press release, in Spanish]. The bill would also guarantee suspects representation by qualified public defenders instead of "advocates" who often do not have a law degree.

In March 2007, Mexican President Felipe Calderon proposed changes [JURIST report] to the country's constitution [text] in an effort to reform its criminal justice system [press release]. Earlier that month, Amnesty International accused Mexico [JURIST news archive] in a report [text] of having a "gravely flawed" criminal justice system in which human rights abuses are perpetuated and criminals are rarely punished. The report cited evidence of arbitrary detentions, torture, fabrication of evidence and unfair trials and claims that the victims are often indigenous Mexicans, the poor, women and children. The judicial reform bill must still be approved by the Senate [official website] and then by at least 17 of Mexico's 31 states. AP has more.

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US Supreme Court allows FedEx age discrimination lawsuit
Jeannie Shawl on February 27, 2008 10:30 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] ruled Wednesday that a group of former and current Federal Express employees met the requirements for filing an age discrimination lawsuit against the company under the Age Discrimination in Employment Act (ADEA). The decision came in Federal Express v. Holowecki [Duke Law case backgrounder; JURIST report], where the plaintiffs filed an "intake questionnaire" with the Equal Employment Opportunity Commission (EEOC) [official website] before filing their lawsuit in federal court. The ADEA requires that plaintiffs alleging discrimination file "a charge alleging unlawful [age] discrimination" with the EEOC and wait 60 days before filing a lawsuit, but there is no statutory definition of that phrase. The US Court of Appeals for the Second Circuit ruled in favor of the plaintiffs [PDF text], and the Supreme Court affirmed that decision, saying that the EEOC "acted within its authority in formulating the rule that a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee's behalf" and that the EEOC's "determination is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces."

The ADEA's 60-day waiting period is designed to allow the EEOC time to notify the employer about the allegations and investigate and resolve the allegations before a lawsuit is filed. In this case, the EEOC failed to notify FedEx about the allegations, but the Court wrote that the plaintiffs should not be penalized because of the agency's mistake:

The Federal Government interacts with individual citizens through all but countless forms, schedules, manuals, and worksheets. Congress, in most cases, delegates the format and design of these instruments to the agencies that administer the relevant laws and processes. An assumption underlying the congressional decision to delegate rulemaking and enforcement authority to the agency, and the consequent judicial rule of deference to the agency's determinations, is that the agency will take all efforts to ensure that affected parties will receive the full benefits and protections of the law. Here, because the agency failed to treat respondent's filing as a charge in the first instance, both sides lost the benefits of the ADEA's informal dispute resolution process.

The employer's interests, in particular, were given short shrift, for it was not notified of respondent's complaint until she filed suit. The court that hears the merits of this litigation can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. True, that remedy would be imperfect. Once the adversary process has begun a dispute may be in a more rigid cast than if conciliation had been attempted at the outset.

This result is unfortunate, but, at least in this case, unavoidable. While courts will use their powers to fashion the best relief possible in situations like this one, the ultimate responsibility for establishing a clearer, more consistent process lies with the agency. The agency already has made some changes to the charge-filing process. ... To reduce the risk of further misunderstandings by those who seek its assistance, the agency should determine, in the first instance, what additional revisions in its forms and processes are necessary or appropriate.
Read the Court's opinion [text] per Justice Kennedy, along with a dissent [text] from Justice Thomas. AP has more.

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EU levies $1.3B fine against Microsoft for noncompliance with antitrust decision
Brett Murphy on February 27, 2008 10:16 AM ET

[JURIST] The European Commission (EC) issued a record fine [press release] of 899 million euros ($1.3 billion) against Microsoft [corporate website; Microsoft EC archives] on Wednesday as penalty for failing to comply with a 2004 landmark ruling [JURIST report] requiring the software giant to share technical information with competitors. In discussing the decision, European Competition Commissioner Neelie Kroes said:

Microsoft was the first company in fifty years of EU competition policy that the Commission has had to fine for failure to comply with an antitrust decision... I hope that today's Decision closes a dark chapter in Microsoft's record of non-compliance with the Commission's March 2004 Decision and that the principles confirmed by the Court of First Instance ruling of September 2007 will govern Microsoft's future conduct.
Last week, Microsoft said that the company would share information with rivals in order to comply with European antitrust rules, but the EC said that "unreasonable prices" were being charged by Microsoft until late October 2007 in violation of the EC decision.

Microsoft dropped an appeal [JURIST report] to the 2004 decision in October 2007, one month after the European Court of First Instance upheld the 2004 ruling [JURIST report], noting that selling media software with its Windows operating system damaged European competitors. Microsoft was fined 280.5 million euro in July 2006 for its antitrust violations, and had reportedly agreed to take the necessary steps [JURIST report] to comply with the ruling. In January, the EC began an investigation [JURIST report] into new allegations that Microsoft had abused its dominant market position regarding a range of Internet and operating system software. AP has more.

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Military commission charges confirmed against Guantanamo detainee al Bahlul
Brett Murphy on February 27, 2008 9:44 AM ET

[JURIST] The US Department of Defense said Tuesday that three charges have been referred [press release; charges sheet, PDF] against Yemeni Guantanamo Bay detainee Ali Hamza Ahmad Suliman al Bahlul for his alleged ties to al Qaeda. Al Bahlul [DOD materials] is accused of serving as "personal and media director" for Osama bin Laden and is charged with conspiracy and solicitation to commit murder, destruction of property, terrorism, and providing support to terrorism. According to the DOD:

The charges allege that in about February of 1999, al Bahlul traveled to Afghanistan to attend military-type training and to join al Qaeda. Once a member of Al Qaeda, he allegedly served as the personal director and media director of Usama bin Laden. The charge sheet states al Bahlul created a propaganda video titled "The Destruction of the American Destroyer U.S.S. Cole," proposed propaganda declarations styled as martyr wills for Sept. 11 hijackers Mohammed Atta and Ziad al Jarrah, researched the economic effects of the Sept. 11 attacks on the United States for Usama bin Laden, and operated Al Qaeda's media communication equipment. The charges also allege al Bahlul armed himself to protect and prevent the capture of Usama bin Laden.
The case will now proceed to military commission, where, if convicted, al Bahlul could receive a maximum sentence of life in prison.

The DOD charged [JURIST report] al Bahlul in February, along with Ibrahim Ahmed Mahmoud al Qosi [DOD press release], accused of being bin Laden's body guard and driver. Al Qosi is charged [charge sheet, PDF] with conspiracy to target and attack civilians and providing material support for terrorism. The separate trials are expected to raise allegations by both defendants of prisoner abuse and torture in US detention centers. Al Qosi claims that he was draped in an Israeli flag, an act meant to humiliate him during interrogations, while al Bahlul's previous attorney told a military commission judge that his client had been tortured. The US military says it eventually hopes to try as many as 80 Guantanamo detainees for war crimes. Reuters has more.

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Moussaoui lawyers say secrecy rules prevented adequate defense
Brett Murphy on February 27, 2008 9:01 AM ET

[JURIST] Zacarias Moussaoui [JURIST news archive] had his rights violated when a federal judge mandated secrecy rules that prevented his lawyers from showing him classified evidence, according to a brief [PDF text] asking for Moussaoui's guilty plea to be overturned. In the brief, filed in January but recently unsealed, lawyers for Moussaoui say that:

Moussaoui appeals because his plea was involuntary, unknowing, uncounselled, and invalid under the federal rules. Before he pled, the district court entered a number of patently unconstitutional rulings that deprived Moussaoui of core Fifth and Sixth Amendment rights. Moussaoui appeals because, for instance, on the incomplete information he had been shown and permitted to discuss with his lawyers, he believed he had no choice other than to plead guilty. He also appeals because the jury found him death eligible in violation of the Federal Death Penalty Act and the Eighth Amendment, and this incorrect finding dictated the sentence he received.

This appeal thus puts in stark relief the guarantee that every defendant in an Article III criminal case is to be afforded the same protections guaranteed under the Constitution. To affirm this judgment, the Court would have to uphold, among other things, each of the following:
  • A district court may bar a criminal defendant from hiring a lawyer not approved by the Government;
  • A district court may prohibit a criminal defendant from personally reviewing evidence the court finds to be material and exculpatory;
  • A district court may restrict a criminal defendant from discussing with his own lawyer evidence that the court finds to be discoverable, and/or material and exculpatory;
  • A district court may exclude a criminal defendant from hearings relating to the admissibility of trial evidence;
  • A guilty plea may be valid even where the defendant's lawyer was not permitted to explain to his or her client why the lawyer was recommending against pleading;
  • A guilty plea may be valid even when the defendant is confused about the charges to which he is pleading;
  • A guilty plea may be valid even where a district court fails to hold a competency hearing in the face of evidence requiring one. ...
The defense asks that Moussaoui's plea and sentence be vacated and that a new trial be ordered.

Moussaoui pleaded guilty [JURIST report] in April 2005 to six conspiracy charges [indictment] in connection with the Sept. 11 attacks, including conspiracy to commit acts of terrorism transcending national boundaries, conspiracy to destroy aircraft and conspiracy to use weapons of mass destruction. He received a life sentence [JURIST report] last year after one juror refused to agree to the death penalty [JURIST report]. He is currently serving his life sentence in the federal Supermax prison in Colorado. 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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