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Legal news from Wednesday, March 12, 2008

Guantanamo Bay detainee asks to boycott trial at preliminary hearing
Mike Rosen-Molina on March 12, 2008 6:49 PM ET

[JURIST] An Afghan Guantanamo Bay [JURIST news archive] detainee alleged that he has been mistreated in custody and asked to boycott his upcoming trial at his first pretrial hearing before a military commission Wednesday. Mohammed Jawad [DOD materials] is charged [press release] with attempted murder [charge sheet, PDF] and intentionally causing serious bodily harm for allegedly throwing a grenade at two US soldiers and an interpreter in their vehicle on December 17, 2002 in Kabul. Jawad did not enter a plea Wednesday. A judge said that he could still be tried and convicted in absentia should he refuse to attend future proceedings. AP has more.

Jawad was the fourth Guantanamo detainee to be formally charged with war crimes under the 2006 Military Commissions Act [PDF text]. Military commission cases [DOD materials] have now been initiated against 14 current or former detainees.

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Canada judge rules Afghan detainees have no rights under Charter
Mike Rosen-Molina on March 12, 2008 5:36 PM ET

[JURIST] Justice Anne Mactavish of the Federal Court of Canada ruled [judgment, PDF; summary, PDF] Wednesday that the protections of the Charter of Rights and Freedoms [text] do not extend to Afghan detainees captured by Canadian soldiers. Amnesty International Canada and the British Columbia Civil Liberties Association [advocacy websites] had filed complaints against the Canadian Forces Provost Marshal (CFPM) [official website] in Federal Court in February 2007, alleging complicity in torture by Canadian personnel serving in Afghanistan as part of the NATO International Security Assistance Force (ISAF). Amnesty alleged that Canada was violating its 1982 rights charter by turning Afghan detainees over to Afghan authorities without any protection against later cruel and unusual punishment. Mactavish held that:

I have concluded that while detainees held by the Canadian Forces in Afghanistan have the rights accorded to them under the Afghan Constitution and by international law, and, in particular, by international humanitarian law, they do not have rights under the Canadian Charter of Rights and Freedoms.

Furthermore, although the actions of the Canadian Forces in Afghanistan in relation to the detention of non-Canadian individuals are governed by numerous international legal instruments, and may also be governed by Canadian law in certain clearly defined circumstances, the Canadian Charter of Rights and Freedoms does not apply to the conduct in issue in this case.
Also Wednesday, the Canadian Military Police Complaints Commission [official website], which has been tasked with investigating the Canadian military's detainee transfer process, said that it was unable to complete its investigation because several departments in the Canadian government were refusing to hand over key information. Commission head Peter Tinsley said that the commission would hold public hearings, so that it could issue subpoenas to compel disclosure. CBC News has more.

The transfer scandal erupted in April 2007 when the Toronto Globe and Mail reported [text] that more than 30 terrorism suspects had been tortured by Afghan investigators after being transferred from Canadian custody. Following public outcry, Canada signed a new agreement regarding detainee transfers [JURIST report] with the Afghan government, giving Canada the right to inspect detainees following their transfer. The Canadian military announced last month that it had resumed transfers of Afghan detainees to Afghan authorities [JURIST report].

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France authorities detain second banker in massive fraud case
Kiely Lewandowski on March 12, 2008 3:27 PM ET

[JURIST] A second employee of French bank Societe Generale [corporate website] has been detained in connection with the investigation into fraudulent activity allegedly committed by rogue trader Jerome Kerviel [BBC profile], the bank said Tuesday. A Societe Generale spokesperson did not name the man but did confirm that he is not the same banker questioned in late February [JURIST report]. Bloomberg reported that an official involved in the investigation had identified the second banker as Manuel Zabraniecki.

Kerviel has been in custody [JURIST report] since February 8 when the Paris appeals court granted a request by prosecutors to hold Kerviel in "provisional detention" to prevent him from fleeing the country or communicating with any possible accomplices during the investigation. Societe Generale, which lost $7 billion when it was forced to unload the fraudulent positions, described the methods Kerviel supposedly used to commit the fraud in an explanatory note [PDF text]. Kerviel has maintained that he acted alone, but also says that he is being made a scapegoat [Telegraph report] by the bank, which he alleges was aware of his activities. Additionally, BusinessWeek has reported [text] that the Eurex derivatives exchange [exchange website] warned Societe Generale in November 2007 about Kerviel's unauthorized transactions. Bloomberg has more. BBC News has additional coverage.

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ICTR appeals chamber increases Rwanda Catholic priest sentence to life in prison
Kiely Lewandowski on March 12, 2008 2:43 PM ET

[JURIST] The appeals chamber of the International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] Wednesday upheld the conviction of Catholic priest Father Athanase Seromba [case materials] for genocide and extermination as a crime against humanity during the 1994 genocide in Rwanda and increased his sentence to life in prison [press release]. Seromba, who was acquitted of the lesser charge of conspiracy to commit genocide, was in charge of a parish church where some more than 1,000 Tutsis sought refuge from Hutu forces. He was found to have ordered the bulldozing of the church and the shooting of all those who tried to escape. He was sentenced to 15 years in prison in 2006, but in November 2007 prosecutors appealed the sentence [JURIST reports] as too lenient.

The ICTR appeals chamber ruled [PDF text]:

The Appeals Chamber considers that the crimes for which Mr. Seromba has been convicted are egregious in scale and inhumanity. The Appeals Chamber stresses that Mr. Seromba knew that approximately 1,500 refugees were in the church and that they were bound to die or be seriously injured as a consequence of his approval that the church be bulldozed, knowing that the refugees had come to the church seeking safety.
Seromba was the first priest convicted by the ICTR, which sits in Arusha in neighboring Tanzania. AFP has more. The UN News Centre has additional coverage.

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Former Liberia militia commander testifies at Taylor war crimes trial
Mike Rosen-Molina on March 12, 2008 2:23 PM ET

[JURIST] A former militia commander testified Wednesday before the Special Court for Sierra Leone [official website] at the war crimes trial of former Liberian President Charles Taylor [BBC profile; JURIST news archive], describing scare tactics used by Taylor to intimidate the population and frighten his enemies. Joseph Marzah said that Taylor had ordered him to kill civilians and told him that the way to instill fear into enemies was to "play with human blood." Marzah also testified that he had been involved in an abortive assassination attempt ordered by Taylor on then-Liberian President Samuel Doe [profile]. AP has more. The Mail and Guardian has additional coverage.

Taylor is generally deemed responsible for masterminding and funding intertwined civil wars in Liberia and neighboring Sierra Leone through the sale of so-called "blood diamonds." He has been charged [indictment, PDF; summary] by the SCSL with 11 counts of crimes against humanity, violations of the Geneva Conventions, and other violations of international humanitarian law. The specific counts include murder, rape, and the use of child soldiers. His trial, moved to The Hague for security reasons, resumed [JURIST report] in January after a multiple-month delay to allow Taylor's defense team more time to prepare.

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Spitzer resignation casts shadow over law reforms
Bernard Hibbitts on March 12, 2008 1:43 PM ET

[JURIST] The resignation [statement text] of New York Governor Eliot Spitzer [JURIST news archive] Wednesday following disclosure of his involvement with a prostitution ring subject to a federal wiretap [criminal complaint, PDF] has interrupted and potentially compromised a series of law reform initiatives championed by the former state attorney general. Among the most prominent of those is a bill to legalize gay marriage in New York passed by the state Assembly [JURIST report] last June but still stalled in the Republican-controlled Senate. Also affected is the Spitzer-sponsored Reproductive Health and Privacy Protection Act [JURIST report; NY Daily News report] that would affirm and advance abortion rights in the state. The future of Spitzer proposals on state campaign finance laws and legislative districts is similarly uncertain. Spitzer's resignation also retrospectively casts a shadow over his vigorous but controversial campaign against corporate fraud [WSJ report], mostly conducted during his term as attorney general from 1998-2006. The New York Times has more.

One piece of legislation that may now ironically stand out as an unanticipated highlight of Spitzer's administration is a statute on human trafficking [text] that went into effect November 1. Among other things, the law increased the state penalty for persons patronizing a prostitute [NYT report] to a year in jail up from a maximum of three months. Spitzer signed the legislation last year shortly after taking office as governor. He has not yet been charged with any crime under state or federal law [Mann Act text].

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Egypt courts rule Muslim Brotherhood members can register for local elections
Mike Rosen-Molina on March 12, 2008 1:07 PM ET

[JURIST] Several provincial Egyptian courts ruled Tuesday that members of the opposition Muslim Brotherhood [party website; FAS backgrounder] must be allowed to register as candidates in the upcoming local council elections in April, even as Egyptian police continued arrests of group members. Egyptian police arrested at least 10 Brotherhood members on Wednesday, adding to the 54 members arrested last Tuesday and the 26 last Thursday [JURIST reports]. Across the country, only about 50 or 60 Brotherhood members have been able to register to stand in the election, and the group has accused the Egyptian government of systematically harassing members and obstructing their registration. Minister of Legal Affairs Moufid Shehab admitted that "mistakes or bureaucracy" had marred the registration process, but said that the court rulings "would be enforced immediately."

The provincial council elections were originally scheduled for 2006, but the Egyptian legislature passed a law [JURIST report] delaying the election for two years after the Muslim Brotherhood made a strong showing in the 2005 parliamentary elections. Muslim Brotherhood members officially run as independents in elections as the organization has been banned in Egypt [JURIST news archive] since 1954. The Egyptian government has accused the group of trying to create an Islamic theocracy through violence. Reuters has more.

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UN torture investigator denied access to US prisons in Iraq
Devin Montgomery on March 12, 2008 12:26 PM ET

[JURIST] UN Special Rapporteur on Torture Manfred Nowak [UN profile] said Tuesday that US officials have refused to grant him access to US prisons operating in Iraq when he travels to the country later in the year. Nowak told reporters in Geneva that US officials told him the facilities were outside his purview because of the ongoing military conflict in the country. A US State Department [official website] official told AP that Nowak was denied access for operational reasons and that only the International Committee of the Red Cross [official website] has been allowed access [JURIST report] to US facilities because of security concerns.

Nowak said he had received credible reports that conditions in US prisons in Iraq have been improving and expressed surprise that the US did not want to take advantage of an opportunity to show that the practices uncovered at Abu Ghraib [JURIST news archive] were not ongoing at US facilities. AP has more. Reuters has additional coverage.

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Thailand ex-PM pleads not guilty to corruption charges
Devin Montgomery on March 12, 2008 11:18 AM ET

[JURIST] Former Thai Prime Minister Thaksin Shinawatra [BBC profile; JURIST news archive] Wednesday pleaded not guilty to charges [JURIST report] of abuse of power for personal gain, conflict of interest violations, and dereliction of duty for personal gain in corruption proceedings before the Supreme Court of Thailand. The charges stem from a 2003 land purchase by his wife Pojamarn from the government-directed Financial Institutions Development Fund [official website], in violation of a law prohibiting government officials and their spouses from having business dealings with state-run agencies. Thaksin's next hearing will be held on April 29, but he will be required to report back to the court on April 11, following court-approved leave to travel outside the country. AP has more. The Bangkok Post has local coverage.

On Monday, Thai prosecutors filed separate corruption charges [JURIST report] against Thaksin, accusing him and other officials of illegally approving and operating funds from the state lottery. The government is seeking $500 million in compensation and has frozen more than $2 billion [JURIST report] of Thaksin and his family's assets. In February, Thaksin returned to Thailand from self-imposed exile to face corruption charges laid against him after he was ousted in a military coup [JURIST reports] in September 2006. Thai authorities immediately arrested Thaksin upon his return and later released him on bail.

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US House passes resolution to create independent ethics panel
Mike Rosen-Molina on March 12, 2008 11:00 AM ET

[JURIST] The US House of Representatives [official website] Tuesday voted 229-182 [roll call] to pass a resolution [HRES 895 materials] creating an independent ethics panel to investigate allegations of malfeasance against House lawmakers. The Office of Congressional Ethics will consist of six non-House members of "exceptional public standing." This represents the first time that the House has delegated the authority to investigate alleged ethics violations to non-House members. Supporters said that the independent panel would help restore public confidence, while opponents worried that it would encourage frivolous investigations. The New York Times has more.

Government watchdog groups praised the outcome of the vote, saying that it showed the House was serious about dealing with ethics violations. Common Cause [advocacy website] called the move a "tremendous improvement to the current system," and noted that the panel would help to improve the House's image [press release] after a series of corruption scandals, including those involving disgraced lobbyist Jack Abramoff and former Rep. Randall "Duke" Cunningham [JURIST news archives].

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US House leaders propose compromise on telecom surveillance immunity
Jeannie Shawl on March 12, 2008 10:50 AM ET

[JURIST] Telecommunications companies who have assisted the government in its warrantless surveillance program [JURIST news archive] would not be provided retroactive immunity from prosecution under the latest version of proposed surveillance legislation being considered by the US House of Representatives. The companies, however, would be allowed to present classified evidence in their defense without granting access to plaintiffs. Democratic Party leaders outlined the new proposal [statement, PDF] Tuesday, and said that it could come up for a vote on the House floor as early as Wednesday. The proposal is intended to resolve differences between the House, Senate and the White House on whether to include immunity for telecommunications companies in legislation that will supplement the 1978 Foreign Intelligence Surveillance Act [text]. The Senate passed the FISA Amendments Act [S 2248 materials; JURIST report] in mid-February; the Senate bill would grant telecommunications companies full legal immunity from civil suits for any involvement in wiretapping program between Sept. 11, 2001 and January 2007. The House version [HR 3773 materials; JURIST report], approved in November 2007, does not include the immunity provisions. The Bush administration has urged [JURIST report] the House to adopt the Senate version of the legislation, but House members have been reluctant to accept the proposed immunity grant.

The administration quickly expressed concern [statement, PDF] with the latest House proposal, with the Department of Justice and the Office of the Director of National Intelligence saying Tuesday:

We are concerned with several reported features of the new proposed legislation. First, we understand that the House leadership may introduce a bill that would require prior court approval before allowing surveillance targeting certain foreign terrorists and other national security threats located outside the United States. ...

Second, we understand that the new House bill may not address the issue of providing liability protection for those private-sector firms that helped defend the Nation after the September 11 attacks. Any FISA modernization bill must include such liability protection. Through briefings and documents, we have provided Congress with access to the information that shows that liability protection is the fair and just result. In addition, private party assistance is necessary and critical to ensuring that the Intelligence Community can collect the information needed to protect our country from attack. The Senate Intelligence Committee has stated that "the intelligence community cannot obtain the intelligence it needs without assistance" from electronic communication service providers. The Committee also concluded that "without retroactive immunity, the private sector might be unwilling to cooperate with lawful Government requests in the future without unnecessary court involvement and protracted litigation. The possible reduction in intelligence that might result from this delay is simply unacceptable for the safety of our Nation." Senior intelligence officials also have testified regarding the importance of providing liability protection to such companies for this very reason. Exposing the private sector to continued litigation for assisting in efforts to defend the country understandably makes the private sector much more reluctant to cooperate. Without their cooperation, our efforts to protect the country cannot succeed.

Finally, we understand that there are a number of other provisions in the proposal that indicate it does not provide the needed tools to ensure our national security. ...
US Rep. John Conyers, Jr. (D-MI) and Rep. Selvestre Reyes (D-TX), chairmen of the House Judiciary and Intelligence Committees, respectively, responded [statement]:
The administration, which has refused to even attend negotiation sessions between the House and the Senate, has now apparently launched another round of scare tactics and falsehoods. The American people expect government officials to wrestle with these difficult issues and reach common sense solutions that protect Americans from terrorism and preserve our civil liberties. Unfortunately, the president's advisors seem more inclined to issue "my way or the highway" press releases concerning a bill the administration hasn't even read. The Congress will continue to give this issue the careful consideration it deserves and we hope the administration will change course and join us in this effort.
The surveillance legislation being debated by Congress is meant to replace the now-defunct Protect America Act [S 1927 materials; JURIST report], which expired earlier this month before Congress could reach an agreement on legislation to replace it. The Washington Post has more.

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Indonesia rights panel investigating Suharto-era abuses
Jeannie Shawl on March 12, 2008 10:29 AM ET

[JURIST] A member of the National Human Rights Commission of Indonesia [official website] said Tuesday that the commission has launched an investigation into human rights abuses committed during the regime of former Indonesian President Haji Mohammad Suharto [BBC profile; JURIST news archive], telling AP that four separate teams will work until mid-May to gather evidence into killings, kidnappings and other abuses allegedly committed by Suharto's security forces. Ridha Saleh told AP that the time period of the investigations could be extended if necessary. After the commission completes its inquiry, evidence will be turned over to the country's attorney general, who will make the decision whether to file charges. Some observers have suggested that the attorney general could establish a special ad hoc rights court to prosecute those suspected of crimes under Suharto's dictatorial regime, but such a court would have to be approved by the House of Representatives and current Indonesian President Susilo Bambang Yudhoyono [official profile], who served as a military officer under Suharto.

Suharto, who ruled Indonesia from 1967 to 1998, died [JURIST report] in late January. He presided over what is considered to be one of the most brutal dictatorships of the 20th century with as many as one million political opponents killed during his time in power. In recent years, Indonesian prosecutors attempted to bring criminal corruption charges against Suharto, but the case was dropped because Suharto was rendered unable to speak or write [JURIST reports] as a result of several strokes. Prosecutors are still pursuing civil corruption charges [JURIST report] against his estate and are hoping to recover $440 million in diverted state funds and $1.1 billion in damages from Suharto's estate. AP has more.

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UK MPs back EU reform treaty
Jeannie Shawl on March 12, 2008 10:10 AM ET

[JURIST] The UK House of Commons voted 346-206 Tuesday in favor of the EU reform treaty [JURIST news archive], properly known as the Treaty of Lisbon [official website; PDF text]. MPs adopted the European Union (Amendment) Bill [text; bill materials], which will incorporate the Treaty of Lisbon into UK law, after the bill's third reading [debate transcript]. The bill now goes to the House of Lords for approval.

Earlier this month, the House of Commons rejected a national referendum [JURIST report] on ratification of the EU treaty, though supporters of that proposal are hoping that the House of Lords will back a popular vote on the treaty, rather than allowing parliamentary ratification. The treaty must be ratified by all 27 EU member states before it can take effect, though each country may choose the method of ratification. Ireland, the latest country to announce its ratification plans, said Tuesday that Ireland will hold a referendum in June [EUobserver report]. Five countries have ratified the reform treaty, and so far, Ireland is the only EU member state that has chosen to hold a referendum on the issue. AFP has more.

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US House fails to override Bush veto of waterboarding ban
Devin Montgomery on March 12, 2008 9:51 AM ET

[JURIST] Democrats in the US House of Representatives Tuesday failed to secure enough votes to override President George W. Bush's veto [JURIST report] of the Intelligence Authorization Act of 2008 [HR 2082 materials], which would have prohibited the Central Intelligence Agency (CIA) [official website] from using waterboarding [JURIST news archive] and other interrogation techniques not explicitly authorized by the 2006 Army Field Manual. Even with a final vote of 225-188 [roll call] in favor of the bill, supporters still fell 51 votes short of the two-thirds majority required to overcome a presidential veto.

Democrats and rights groups have denounced Bush's veto, saying the use of coercive techniques was ineffective and inhumane. Field Manual 2-22.3 [PDF text; press release], Human Intelligence Collector Operations, explicitly prohibits the use of waterboarding, electrocution, sensory deprivation, inducing hypothermia, or depriving the subject of food, water, or medical care. The 2006 manual also specifies that the Geneva Conventions [ICRC materials] apply to all detainees [JURIST report] and eliminates separate standards for the questioning of prisoners of war and enemy combatants. In announcing his veto, Bush said [radio address transcript; recorded audio] that techniques outside those allowed in Army Field Manual were crucial to the effective interrogation of terror suspects, and that banning them would put the country at higher risk of attack. Bush had previously indicated his plans to veto the bill [JURIST report] in a BBC interview [transcript; recorded video] in February. 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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