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Legal news from Thursday, June 26, 2008

Belarus proposed online media law violates rights: journalists
Deirdre Jurand on June 26, 2008 4:14 PM ET

[JURIST] Belarusian online news services and journalist organizations have denounced a proposed new law [BAJ report] that would restrict online press freedom by requiring news services to register with the government. The House of Representatives of Belarus' National Assembly [official website, English version] approved the "On Mass Media" law Tuesday after its second reading. Belarusian online news sources Wednesday posted black banners and some temporarily stopped posting material in response. The Belarusian Association of Journalists (BAJ) [official website] wrote [press release] that "it is unacceptable to consider and adopt a legal act that infringes upon this fundamental right," protected by articles 33 and 34 of the Belarus constitution [text]. Reporters Without Borders [official website] also criticized the passage, writing [press release]: "The Internet has until now been one of the few spaces where Belarusians could express themselves freely. We fear that censorship will be stepped up." The proposal must be passed by the upper house of the Assembly and then signed by the president before it becomes law. AP has more.

In March, the Belarus KGB [official website] detained at least 16 journalists [JURIST report] and searched their homes and offices for materials that allegedly libeled Belarus President Alexander Lukashenko [official website; BBC profile]. The Belarus Deputy Prosecutor General said that the searches related to an animated Internet cartoon that allegedly insulted Lukashenko and had been broadcast on Belsat TV [media website], a Polish-funded satellite television channel. The BAJ argued that the searches were retaliation for media coverage of anti-Lukashenko protests [JURIST report] in Minsk earlier that week. In 2004 the Council of Europe severely condemned [Resolution 1372 text] the Belarusian government for its oppression of journalists, the Council will again evaluate the status of journalists [BAJ report] in the country following the approval of the proposed law.

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US to remove North Korea from terror sponsor list
Andrew Gilmore on June 26, 2008 3:48 PM ET

[JURIST] US President George W. Bush Thursday announced plans [statement] to remove North Korea [JURIST news archive] from a State Department list of terror sponsors [text]. The move comes after the North Korean government presented China with a detailed report outlining its nuclear energy and weapons programs, in accordance with international efforts to end its nuclear ambitions. Other sanctions against North Korea, including those imposed by the UN Security Council [JURIST report], will remain in place. The New York Times has more. AP has additional coverage.

In February 2007, North Korea agreed [JURIST report] to end its nuclear weapons program, shut down and seal any reactors, and completely declare the extent of its nuclear activities in exchange for 50,000 tons of heavy fuel. International efforts to end North Korea's nuclear programs have taken place in the context of the Six-Party Talks [US State Department backgrounder], a group that includes North Korea, South Korea, the US, Russia, Japan, and China. The group has also focused on normalizing US-North Korean relations, relations between Japan and North Korea [JURIST news archive], peace and security in northeast Asia, energy and the economy, and the status of North Korea's de-nuclearization. AFP has more.

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Age discrimination legislation proposed by UK government
Deirdre Jurand on June 26, 2008 3:10 PM ET

[JURIST] Officials from the UK Government Equalities Office (GEO) [official website] introduced a new equality bill [bill framework, PDF; BBC Q/A] Thursday designed to combat discrimination based on age or gender. Equalities Minister Harriet Harman told [statement, PDF] the House of Commons that 40 years of anti-discrimination laws have not sufficiently reduced inequality in the UK:

This package will see us make further progress towards a fair and equal society. A single statute to replace the complex web of legislation that has grown up over the years will make it easier for people to know their rights and their obligations.
The bill framework focuses on transparency in company operations, with a provision requiring companies to report regularly on their employee make-up and to allow internal discussion of salaries, which is currently prohibited under UK law. The bill will also provide for an increased role for the Equality and Human Rights Commission [official website], a non-departmental public body established by the Equality Act 2006 [text] to work toward eliminating discrimination, and will give employment tribunals wider discretion in proposing recommendations for companies that violate the bill. BBC News has more.

The UK has made increased efforts to combat discrimination in recent years. In October 2006, an official at the UK Commission for Racial Equality [official website] warned [JURIST report] that if communication about social differences does not improve in Britain, riots could erupt there in the wake of a religious dress [JURIST news archive] debate prompted by the suspension of a Muslim UK teacher for wearing a full-face veil in the classroom. In January 2007, then-UK Prime Minister Tony Blair announced [JURIST report] that rules under the Equality Act protecting same-sex couples' rights to adopt children [JURIST report] will apply without exception, denying special exemptions for faith-based adoption agencies opposed to same-sex unions or homosexuality.

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Amnesty urges EU to condemn torture in Brussels protest
Mike Rosen-Molina on June 26, 2008 2:52 PM ET

[JURIST] Amnesty International [advocacy website] marked International Day in Support of Victims of Torture [UN backgrounder] by protesting [press release] in front of the European Parliament [official website] in Brussels on Thursday. The protest criticized European Union states for failing to condemn alleged abuses in countries like the United States and Tunisia, warning that many governments were using the threat of terrorism as a justification for repression and torture. The group called on EU governments to publicly condemn torture and hold its practitioners accountable. Al Jazeera has more.

Earlier this month, Amnesty accused [report text; JURIST report] Tunisia of committing wide-spread human rights abuses under overly-broad anti-terrorism legislation [Amnesty backgrounder]. In January, Canadian Foreign Minister Maxime Bernier [official profile] said that the Canadian Ministry of Foreign Affairs and International Trade would remove the US from an internal document that lists countries that employ interrogation methods that amount to torture [JURIST reports] and where prisoners risk being tortured.

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Canada court rules on preservation of evidence in terror investigation
Mike Rosen-Molina on June 26, 2008 1:48 PM ET

[JURIST] The Supreme Court of Canada [official website] ruled [judgment] Thursday that the Canadian Security Intelligence Service (CSIS) [official website] improperly destroyed recordings of agent interviews with terror suspect Adil Charkaoui [case summary], but the justices refused to stop Charkaoui's extradition to Morocco. The Court found that the loss of evidence hampered judicial review:

As things stand, the destruction by CSIS officers of their operational notes compromises the very function of judicial review. To uphold the right to procedural fairness of people in Mr. Charkaoui’s position, CSIS should be required to retain all the information in its possession and to disclose it to the ministers and the designated judge. The ministers and the designated judge will in turn be responsible for verifying the information they are given. If, as we suggest, the ministers have access to all the undestroyed "original" evidence, they will be better positioned to make appropriate decisions on issuing a certificate. The designated judge, who will have access to all the evidence, will then exclude any evidence that might pose a threat to national security and summarize the remaining evidence — which he or she will have been able to check for accuracy and reliability — for the named person.
The Court found that the destruction of the recordings violated CSIS's duty to preserve all intelligence notes as stated in Section 12 of the Canadian Security Intelligence Service Act [text]. CBC News has more.

Charkaoui was arrested in 2003 and detained until 2005 under a security certificate [CBSA backgrounder; CBC backgrounder] that allowed the government to indefinitely detain and deport foreigners with suspected ties to terrorism. Last year, the Supreme Court ruled [text; JURIST report] that the government's use of security certificates violated the Canadian Charter of Rights and Freedoms [text; CDCH materials]. Last October, the Canadian government introduced [JURIST report] a new security certificates bill [press release] in the House of Commons [official website].

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Canada court orders release of Khadr classified information
Deirdre Jurand on June 26, 2008 12:37 PM ET

[JURIST] A Canadian Federal Court judge ruled [opinion, PDF] Wednesday that the government must release evidence to Canadian Guantanamo detainee Omar Khadr [DOD materials; JURIST news archive] that could assist in his defense. The decision followed last month's Supreme Court of Canada ruling [text; JURIST report] that Khadr had the right under the Canadian Charter of Rights and Freedoms [text] to see confidential documents and videos compiled by Canadian officials following interviews with Khadr that possibly involved torture. The Federal Court judge held that Canadian officials violated Khadr's human rights under the UN Convention against Torture (UNCAT) and the Geneva Convention [texts] when they knowingly allowed interviews of Khadr to continue at Guantanamo. Justice Mosley wrote:

Canada cannot now object to the disclosure of this information. The information is relevant to the applicant’s complaints of mistreatment while in detention. While it may cause some harm to Canada-US relations, that effect will be minimized by the fact that the use of such interrogation techniques by the US military at Guantánamo is now a matter of public record and debate. In any event, I am satisfied that the public interest in disclosure of this information outweighs the public interest in non-disclosure.
The government must release some of the related information its agencies have and Khadr may release that information to the public, both subject to national security limitations. CBC News has more. Canwest News has additional coverage.

Khadr, 21, faces life imprisonment after allegedly throwing a grenade that killed one US soldier and wounded another while fighting with the Taliban in Afghanistan in 2002. He was charged [charge sheet, PDF; JURIST report] in April 2007 with murder, attempted murder, conspiracy and providing material support for terrorism, as well as spying. Khadr is one of four [JURIST report] Guantanamo detainees prosecuted under the Military Commissions Act of 2006 [PDF text]. On March 13, a US military judge ruled [JURIST report] that some correspondence between US and Canadian government officials regarding Khadr must be turned over to Khadr's defense team. In an affidavit released in early May, Khadr accused US interrogators of mistreatment [JURIST report] including threatening him with rape, physically abusing him, and forcing him to swear to false statements.

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Thousands died while in India police custody: rights group
Andrew Gilmore on June 26, 2008 11:37 AM ET

[JURIST] India's National Human Rights Commission [official website] should create a special department to investigate deaths in police custody, the Asian Centre for Human Rights (ACHR) [advocacy website] said in a Wednesday report [PDF text; press release]. The report found that over 7,000 people, many of whom were allegedly tortured, have died in the custody of Indian police between 2002 and 2007. ACHR called on India to enact legislation to criminalize torture, to repeal all laws granting immunity to torturers, and to ratify the UN Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment [text] and permit visits to the country by the UN Special Rapporteur on Torture. BBC News has more.

India came under criticism from South Asians for Human Rights (SAHR) [advocacy website] in October 2006 when the group pressed both India and Pakistan to abolish the death penalty [JURIST report]. In December 2006, an Indian police officer was sentenced to death [BBC report] for killing a man while in police custody.

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House passes Americans with Disabilities Act amendments
Mike Rosen-Molina on June 26, 2008 11:25 AM ET

[JURIST] The US House voted 402-17 [roll call] to approve the Americans with Disabilities Amendments Act of 2008 [HR 3195 materials] Wednesday. The bill makes it easier for employees with mental or physical handicaps to prove they are victims of workplace or hiring discrimination. Bill co-sponsor Rep. Steny Hoyer (D-MD) [official website] said that the new legislation closed gaps in the law [press release; floor statement, recorded video] that denied protections to workers with many handicaps, including epilepsy and diabetes. Bill co-sponsor Rep. F. James Sensenbrenner Jr. (R-WI) [official website; press release] said the bill was necessary because the Supreme Court interpreted the Americans with Disabilities Act (ADA) [official website] in an overly restrictive manner in Toyota Motor Manufacturing, Kentucky Inc. v. Williams [opinion] in 2002, severely limiting the range of handicaps that qualified for protection. The Senate is expected to pass similar legislation. President George W. Bush has expressed concern that the bill could lead to excessive litigation. The New York Times has more.

The US is one of only 45 countries in the world with disability legislation, having adopted the ADA in 1990. In 2006, the UN General Assembly Wednesday adopted by acclamation an international treaty on the rights of persons with disabilities [official website; JURIST report]. The US said that it would not sign [New Standard report] the international accord, insisting that US domestic measures on the federal, state and local levels are already adequate for the purpose.

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Federal court rules FOIA does not apply to Guantanamo wiretaps
Devin Montgomery on June 26, 2008 11:23 AM ET

[JURIST] The US District Court for the Southern District of New York [official website] Wednesday ruled [decision, PDF] that the National Security Agency (NSA) [JURIST news archive] does not have to tell lawyers for Guantanamo Bay detainees whether it has used electronic surveillance methods to monitor their communications. The Center for Constitutional Rights (CCR) [advocacy website] filed the lawsuit [complaint, PDF; CCR backgrounder ] on behalf of the lawyers in May 2007, arguing [JURIST report] that under the Freedom of Information Act [statute materials] the agency was compelled to disclose if and when the lawyers' communications were intercepted. The court rejected the Center's argument, agreeing with the NSA that the National Security Agency Act of 1959 [text] and other laws grant it immunity from this kind of request. The court said that granting such requests could expose too much of agency's operations:

If, as a matter of law, defendants are required to respond to plaintiffs' FOIA requests, they must do so no matter who is requesting the information. This might allow potential malfeasants to access sensitive information. Moreover, according to [NSA official Joseph] Brand, the accretion of progressively disclosed information 'would disclose the target and capabilities (sources and methods) of the [Terrorist Surveillance Program] and inform our adversaries of the degree to which NSA is aware of some of their operative[s] or can successfully exploit particular communications.'
AP has more.

In 2006, CCR filed a lawsuit, CCR v. Bush [CCR synopsis], seeking an injuction against the US government conducting warrantless surveillance [JURIST news archive] within the US. CCR said at the time that because there were "no safeguards put in place to ensure that attorney-client privileged communications are not being monitored, it is almost certain that confidential communications between CCR staff and our clients have been caught up in this massive web of illegal surveillance." That case is still pending [advocacy status report] and was argued before the US District Court for the Northern District of California in August 2007.

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Supreme Court rules in DC gun ban, campaign finance, energy contract cases
Mike Rosen-Molina on June 26, 2008 10:07 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] handed down three decisions Thursday, including District of Columbia v. Heller [Duke Law backgrounder; JURIST report], in which the Court ruled 5-4 that the Second Amendment [text] to the US Constitution prohibits the District of Columbia from banning private handgun ownership. The Court found that the Second Amendment bestows upon citizens an individual right to own firearms for lawful purposes:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not, see, e.g., United States v. Williams, 553 US (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.
This was the first time that the Supreme Court has directly addressed the Second Amendment since 1939's US v. Miller [case materials]. In September 2007, Washington DC Mayor Adrian M. Fenty and DC Attorney General Linda Singer [official profiles] formally appealed a March 2007 federal court ruling which invalidated the District of Columbia's handgun ban [JURIST reports]. Thursday's decision affirms the March DC Circuit holding [opinion, PDF] that the city's 30-year-old ban on private possession of handguns was unconstitutionally broad. Read the Court's opinion [PDF text] per Justice Scalia, a dissent filed by Justice Stevens, and a dissent [texts] filed by Justice Breyer. AP has more.

The Court also ruled 5-4 in Davis v. Federal Election Commission [Duke Law backgrounder; JURIST report] that the so-called millionaire's amendment [FEC backgrounder], part of a 2002 campaign finance law that allows political candidates to accept larger contributions from supporters if an opponent is able to finance his campaign with his own money, is unconstitutional. The exception was intended to ensure that independently wealthy candidates do not unfairly dominate elections. New York Democrat Jack Davis [campaign website] challenged the law, arguing that it violated his First Amendment rights. The Court agreed, holding:
There is, however, no constitutional basis for attacking contribution limits on the ground that they are too high. Congress has no constitutional obligation to limit contributions at all; and if Congress concludes that allowing contributions of a certain amount does not create an undue risk of corruption or the appearance of corruption, a candidate who wishes to restrict an opponent's fundraising cannot argue that the Constitution demands that contributions be regulated more strictly.
Thursday's decision reversed and remanded a DC Circuit ruling [opinion, PDF] that the law had not infringed on his right to free speech. Read the Court's opinion per Justice Alito, a concurrence in part and a dissent in part filed by Justice Stevens, and a concurrence in part and dissent in part [texts] filed by Justice Ginsburg.

In Morgan Stanley Capital Group Inc. v. Public Utility District No. 1 of Snohomish County [Duke Law backgrounder; JURIST report], the Court ruled 5-2 that a long-term contract made between an energy supplier and a local public utility during the Western energy crisis of 2000 and 2001 [FERC materials] was void. After prices normalized, the Public Utility sought to have the contracts voided by the Federal Energy Regulatory Commission (FERC) [official website], arguing that the contract rates were unfairly influenced by outside market manipulation during the crisis. The FERC refused nullify the contracts, but on appeal, the Ninth Circuit ruled in favor of Public Utility [opinion, PDF], and remanded the case to FERC. Thursday's ruling affirms the Ninth Circuit ruling, finding that FERC's:
analysis was flawed or incomplete to the extent FERC looked simply to whether consumers' rates increased immediately upon conclusion of the relevant contracts, rather than determining whether the contracts imposed an excessive burden "down the line," relative to the rates consumers could have obtained (but for the contracts) after elimination of the dysfunctional market.
Read the Court's opinion per Justice Scalia, a dissent filed by Justice Stevens, and a concurrence [texts] filed by Justice Ginsburg. Chief Justice Roberts and Justice Breyer did not participate in the decision.

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Child rape should remain punishable by death: politicians
Deirdre Jurand on June 26, 2008 8:35 AM ET

[JURIST] A number of politicians have denounced Wednesday's US Supreme Court ruling [Kennedy v. Louisiana opinion text; JURIST report] that the death penalty constitutes cruel and unusual punishment for the rape of a child. At a press conference, Democratic Party presidential candidate Barack Obama (D-Ill) said [MSNBC report] that

[T]he rape of a small child, six or eight years old is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable, that does not violate our constitution.
Republican Party presidential nominee John McCain (R-Ariz.) also disagreed with the ruling, commenting [press release]
That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing.
Alabama Attorney General Troy King called the Supreme Court's ruling unconstitutional [press release], while Louisiana Governor Bobby Jindal commented that the ruling "suppresses the constitutional authority of state legislatures" [press release]. Governor Jindal also said that Louisiana state officials would work to amend the statute to preserve the death penalty for child rapists. AP has more.

The Supreme Court's 5-4 ruling held that the death penalty violates the Eight Amendment [text] protection against cruel and unusual punishment when imposed for a crime in which the victim was not killed or which did not harm society in general, as with espionage or treason. Patrick Kennedy was sentenced to death in Louisiana for raping a minor, one of the few remaining crimes where the death of a victim is not required for the death penalty. The Court found that in cases where the victim was not killed, the death penalty fails to serve "deterrent or retributive" purposes invoked for its use. The Court's holding in the case reversed a decision [PDF text] of the Supreme Court of Louisiana.

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Council of Europe to investigate Kosovo organ trafficking allegations
Kiely Lewandowski on June 26, 2008 7:54 AM ET

[JURIST] The Parliamentary Assembly of the Council of Europe (PACE) [official website] announced Wednesday that it will prepare a report [press release] on allegations of organ trafficking in Kosovo. Former prosecutor for the International Criminal Tribunal for the former Yugoslavia (ICTY) Carla Del Ponte [BBC profile; JURIST news archive] has alleged in a new book [JURIST report] that about 300 Serbian and other non-Albanian prisoners were victims of organ trafficking during the 1998-1999 war in Kosovo, but that a 2003 probe by her ICTY team failed to obtain sufficient evidence to prosecute. In response, parliamentarians submitted a motion [text] in April requesting that the Assembly investigate the organ trafficking charges. PACE officials forwarded the issue to the Committee on Legal Affairs and Human Rights [official website] earlier this month, according to officials from PACE's Serbian delegation [official website]. B92 has more. AP has additional coverage.

Del Ponte said reliable sources told her that members of the Kosovo Liberation Army (KLA) [official website] took the organs of young, healthy prisoners for black-market sales [Kosovo Compromise report]. The Swiss Foreign Ministry later barred Del Ponte from promoting the book because it was inconsistent with her role as the Swiss ambassador. In March, the office of Serbia's war crimes prosecutor [official website] said that it was investigating "informal statements" [JURIST report] received from ICTY investigators alleging illegal organ harvesting. The next month, Serbia announced [JURIST report] that it planned to officially request that the ICTY resume a probe into the organ trafficking allegations, even though Kosovo Justice Minister Nekibe Kelmendi dismissed the allegations as "fabrications." The same month, Human Rights Watch (HRW) [official website] urged [JURIST report] leaders of Kosovo and Albania to launch an investigation into the allegations, but as of May had not received a response.

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New Zealand Parliament signs record-breaking Maori land settlement
Kiely Lewandowski on June 26, 2008 6:57 AM ET

[JURIST] The New Zealand government and several Maori groups signed a deed of settlement Wednesday worth nearly NZ $196 million to resolve certain indigenous claims concerning land taken by British settlers in the 19th century. The deed of settlement agreement, known informally as the Treelords deal [settlement back-grounder, PDF], restores land rights and nearly 176,000 hectares of forest previously appropriated by the New Zealand government, including rental income from the land, to the Central North Island Forest Iwi Collective [official website], an organization made up of Maori iwi, or social units. Under the settlement, negotiated by the Office of Treaty Settlements [official website], all rental and other income from the land will be held in a newly-established trust holding company, whose shareholders are the Maori iwis. The Treelords deal also gives the Collective the ability to acquire government-owned properties through deferred selection or rights of first refusal. AP has more. The New Zealand Herald has local coverage.

Maori claims to the historical Central North Island forests are based on breaches of the 1840 Treaty of Waitangi [text] by the New Zealand government. The treaty established the sovereignty of the British crown in New Zealand, but guaranteed Maori groups continued use of their land and natural resources. The Maori have fought for remedies for land loss and unequal treatment suffered pursuant to the Treaty since soon after its signing in 1840. Under the Treelords deal, the government of New Zealand officially apologizes for breaches of the Treaty. BBC News has more.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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