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Legal news from Friday, September 12, 2008

US military charges Afghan detainee at Guantanamo with war crimes
Joe Shaulis on September 12, 2008 2:51 PM ET

[JURIST] US military prosecutors have brought war crimes charges [charge sheet, PDF] against a detainee at Guantanamo Bay [JURIST news archives] who they allege stored and concealed anti-tank mines in Afghanistan [JURIST news archive]. The detainee, named Obaidullah, was charged Wednesday with conspiracy and providing material support for terrorism [text, 10 USC 950v(b)(25),(28)]. For Obaidullah to stand trial, the charges must be approved by Susan Crawford, convening authority for US military commissions [DOD materials; JURIST news archive]. The charges carry a maximum sentence of life in prison. Reuters has more.

Although twenty-three other Guantanamo detainees have been charged with war crimes, only one trial has taken place. Salim Hamdan, a former driver for Osama bin Laden [JURIST news archives], was convicted last month of supporting terrorism and sentenced [JURIST report] to 5.5 years in prison. The US Department of Defense (DOD) [official website] hopes to try as many as 80 Guantanamo detainees.

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Wisconsin elections agency says ID lawsuit will cause confusion at polls
Joe Shaulis on September 12, 2008 1:20 PM ET

[JURIST] Voting-rights advocates and elections officials fear that a lawsuit [complaint text, PDF; press release] brought by the Wisconsin Department of Justice [official website] will effectively disenfranchise thousands of voters by causing chaos at the polls in November. Wisconsin Attorney General J.B. Van Hollen [official profile] filed suit against the state's Government Accountability Board [official website] on Wednesday, seeking to force the elections agency to cross-check the identities of recently registered voters against names in other state databases. The Help America Vote Act of 2002 (HAVA) [text and materials] requires that states use databases to confirm the identities of voters registered since January 1, 2006, but Wisconsin's software was not operational until this August. Voters who failed the cross-check could vote by presenting proof of residency or by casting provisional ballots. Responding to the lawsuit [press release], GAB Director Kevin Kennedy said:

The Board believes it would be counter-productive to rush this effort and to create a significant risk, at best, of unnecessary hardship and confusion at the polls, and at worst, the disenfranchisement of Wisconsin citizens with a clear and legitimate right to vote.
The Wisconsin League of Women Voters [advocacy website] opposes the lawsuit, which it contends [press release] would "cause long lines and confusion at the polls on a day when a record number of citizens will be seeking to exercise their right to vote." AP has more. The Milwaukee Journal Sentinel has local coverage.

HAVA requires states to use electronic ballot machines and to create a voter registration database, but the US Department of Justice (DOJ) [official website] has exempted states which make good-faith efforts to implement the changes and has worked to remedy the lag in compliance [JURIST report]. In 2006, the DOJ sued at least 17 jurisdictions, including the state of New York [JURIST report], for missing previous deadlines. Also that year, a report by the non-partisan Electionline.org monitoring group found that more than half of US states had failed to meet HAVA deadlines [JURIST report] for updating voting machines and voter databases.

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Louisiana teacher pension fund settles shareholder lawsuit with ex-AIG executives
Andrew Gilmore on September 12, 2008 11:58 AM ET

[JURIST] The Teachers Retirement System of Louisiana [official website] on Thursday settled a shareholder suit against a group of former executives from American International Group (AIG) [corporate website], including AIG ex-CEO and chairman Maurice "Hank" Greenberg. The lawsuit, filed in 2002 in the Delaware Chancery Court, concerned improper transfers of approximately $1 billion from AIG to C.V. Starr & Co. [corporate website]. The former AIG executives, including Greenberg, were officers of C.V. Starr, an insurance company closely related to AIG, and received compensation from Starr in addition to their AIG salaries. The parties reportedly settled the lawsuit for $115 million, with $29.5 million to be paid by the defendants themselves, and a directors' and officers' insurance policy paying the remainder. The Wall Street Journal has more. Reuters has additional coverage.

In February 2006, AIG settled [JURIST report] fraud, bid-rigging, and improper accounting charges with the state of New York, the New York Attorney General's Office, and the US Justice Department for $1.6 billion. The money was distributed to investors, policyholders, and other injured states as well as the named plaintiffs. As part of the pact, the US Securities and Exchange Commission (SEC) [official website] also settled [press release] with AIG for $800 million. The charges alleged that AIG made multi-million dollar transactions with the Gen Re insurance group, a subsidiary of Berkshire Hathaway [corporate websites], to improve the appearance of profitability.

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Third Circuit upholds denial of diet-drug settlement claim
Joe Shaulis on September 12, 2008 11:39 AM ET

[JURIST] The US Court of Appeals for the Third Circuit [official website; JURIST news archive] on Thursday ruled [opinion, PDF] that a claimant had produced insufficient medical evidence to recover from a settlement fund established to compensate those harmed by the weight-loss medication known as fen-phen [FDA backgrounder]. The Philadelphia-based court affirmed a decision by the US District Court for the Eastern District of Pennsylvania [official website] denying Gay Patterson's claim against the AHP Settlement Trust [trust website] as lacking a reasonable medical basis. Patterson alleges she suffers from moderate mitral regurgitation [Mayo Clinic backgrounder], or a leaky heart valve - a condition that would qualify her for compensation from the trust. She argued that the district court had erred by failing to accept a single frame of an echocardiogram as sufficient evidence of her condition and by relying instead on an auditing cardiologist's visual assessment of an echocardiogram. Chief Circuit Judge Anthony J. Scirica [official profile] wrote for the three-member panel:

We cannot agree with Patterson's argument that, in a borderline case such as this, the measurement of a single frame in an echocardiogram, without evidence showing that the
depicted jet is a true regurgitant jet, i.e., representative of the claimant’s actual level of mitral regurgitation, constitutes a reasonable medical basis for recovering Matrix compensation. To hold otherwise would permit claimants whose echocardiograms show an aberrant jet in a single frame to recover payment from the Trust.
Further, the court found that a physician's "eyeball" assessment is proper when an echocardiogram clearly indicates that the claimant's level of valve leakage is consistent with that of the general population.

The settlement fund resulted from class-action litigation [case backgrounder] against the company now known as Wyeth Pharmaceuticals [corporate website], which pulled its diet drugs Pondimin (fenfluramine) and Redux (dexfenflura) off the market [FDA press release] in 1997. Earlier that year, a Mayo Clinic study [text] linked fen-phen, a combination of the Wyeth drugs with the medication phentermine, to a rare heart-valve condition. The Judicial Panel on Multidistrict Litigation later transferred all diet-drug cases in federal court to Pennsylvania's Eastern District. The court approved [order text] a settle agreement [materials] in 2000, leading to the establishment of the trust.

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New Ethiopia rights bill introduced in US Senate
Andrew Gilmore on September 12, 2008 10:55 AM ET

[JURIST] US Senator Russ Feingold (D-WI) [official website] introduced a new bill entitled the "Support for Democracy and Human Rights in Ethiopia Act of 2008" [S. 3427 text, PDF] in the Senate on Tuesday, calling for greater support for individual and political rights in Ethiopia [JURIST news archive]. The bill is meant to "build on successful diplomatic efforts that contributed to the October 2007 release of political prisoners in Addis" to help resolve internal conflicts over human rights and political participation. Co-sponsored by Senator Patrick Leahy (D-VT) [JURIST news archive], the bill also is also aimed at negotiations to settle the ongoing conflict between Ethiopia and Eritrea [JURIST news archive]. Specifically, S. 3427 calls on the President to support democracy, promote and bolster the independence of the Ethiopian judiciary, ensure the protection of women and minorities, and "support efforts of the international community to gain full access" to Ethiopia's Ogaden region to "provide humanitarian and development assistance." In order to fund these efforts, the bill seeks to carve out $20 million from the 2009 budget of the National Aeronautics and Space Administration (NASA) [official website]. Senator Feingold stated:

As many in this body know, I have spoken numerous times in recent months about the situation in Ethiopia and I continue to believe that the U.S.-Ethiopian partnership is very important--one of the more critical ones given not only our historic relationship but also Ethiopia's location in an increasingly strategic region. ... As we turn a blind eye to the escalating political tensions, people are being thrown in jail without justification and non-government organizations are being restricted, while civilians are dying unnecessarily in the Ogaden region--just like so many before them in Oromiya, Amhara, and Gambella. Furthermore, the Ethiopian military has come under increasing scrutiny for its conduct in the Ogaden as well as Somalia, with credible reports from non-governmental organizations of torture, rape and indiscriminate attacks. By providing unconditioned security assistance we are also sowing the seeds of insecurity and creating new grievances both in Ethiopia and in its neighboring countries.
Ethiopia has recently come under increasingly-intense international scrutiny concerning its poor human rights record. In June, Human Rights Watch (HRW) [advocacy website] released a report [text, PDF] attacking Ethiopian human rights practices in the Ogaden region [JURIST report]. In October 2007, the US House of Representatives passed the Ethiopia Democracy and Accountability Act of 2007 (H.R. 2003) [text; JURIST commentary], aimed in part at encouraging the human rights situation in Ethiopia. The bill is currently before the US Senate Committee on Foreign Relations. In July 2007, HRW accused Ethiopian troops of violating international humanitarian law [JURIST report] by burning homes and forcibly relocating civilians in Ogaden. In March 2007, HRW also accused Ethiopia of complicity with the US and Kenya in secretly detaining Somalis [JURIST report] accused of being Islamic militants. Ethiopia had admitted [JURIST report] in April 2007 that it detained terror suspects but denied that the detentions were secret.

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New Rosenberg transcripts suggest perjury
Joe Shaulis on September 12, 2008 9:28 AM ET

[JURIST] Grand jury transcripts [materials] released Thursday suggest that testimony critical to the 1953 espionage [JURIST news archive] conviction of Ethel Rosenberg [academic profile] was perjured. The National Archives made public [press release] nearly 1,000 pages of testimony given by 41 of the 45 grand jury witnesses in the Rosenberg case, as ordered [JURIST report] by the US District Court for the Southern District of New York [official website]. Historians who analyzed the transcripts said that Ruth Greenglass [academic profile], Ethel Rosenberg's sister-in-law, gave differing accounts in her grand jury and trial testimony. Greenglass told the grand jury [transcript, PDF] that she hand-wrote notes about the US nuclear program which Julius Rosenberg later passed on to the Soviet Union, but at trial Greenglass testified [transcript] that Ethel Rosenberg had typed the notes for her husband. Historian Ronald Radosh [academic profile] said [press release] the newly-released transcripts "cast significant doubt on the key prosecution charge used to convict Ethel Rosenberg at the trial and sentence her to death." AP has more. The Washington Post has additional coverage.

An attorney for George Washington University's National Security Archive [academic website] said historical grand jury testimony had been made public only three times before. The archive petitioned [text, PDF; memorandum, PDF] for the release of the transcripts earlier this year, arguing that "[t]he overwhelming historical interest outweighs any secrecy interests that may have survived." US District Judge Alvin Hellerstein ordered the disclosure [JURIST report] of most of the grand jury testimony in July, although he denied a request [New York Times report] to unseal the testimony of Ethel Rosenberg's brother David Greenglass [academic profile], who objected to the release. The Rosenbergs were found guilty [verdict transcript] in 1953 on charges of violating US espionage statutes [50 USC 4 materials]. They were sentenced to death and executed the same year.

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HRW: Nepal must 'vigorously' investigate human rights abuses
Kiely Lewandowski on September 12, 2008 8:52 AM ET

[JURIST] Human Rights Watch (HRW) [advocacy website] urged [HRW press release] the Maoist-led Nepalese government Thursday to 'vigorously' investigate and prosecute those responsible for the grave human rights violations allegedly committed during the country's civil war. In a joint report [text], HRW and the Nepal-based Advocacy Forum [advocacy website] recommended that even members of the security forces must be investigated for any role in killings, enforced disappearances, and incidents of torture during the decade-long conflict. HRW argued one of the most important reforms necessary is the failure of Nepalese police to completely investigate formal First Information Reports (FIRs), stating:

The 62 cases analysed [sic] in this report show a pattern of torture and ill-treatment of detainees during interrogation at police stations and army barracks. In around one third of the cases, victims suffered beatings, assault, and humiliation before they were killed. None of these cases have been investigated by police for allegations of torture. As torture is not a criminal offence in Nepal, no FIRs have been filed for torture even though torture may have caused death. At least three women victims were raped before they were killed. In two of these cases, the charge of rape could not be included in the FIR because the limitation period for making a complaint of rape in Nepal is 35 days.
Because there is no 'specific protection of the right to life' in Nepal's Constitution and relatives of the victims cannot argue that extrajudicial killings violate their fundamental rights, the role of the courts in these human rights abuse cases is 'marginal.' AFP has more.

The decade-long Maoist guerrilla insurgency ended [JURIST report] in late 2006 when the Nepalese government signed a peace agreement [text in Nepali] that established the Nepalese Constituent Assembly. The Constituent Assembly was elected in April [JURIST report] and is dominated by members of the Communist Party of Nepal - Maoists (CPN-M) [party website]. In May, the Constituent Assembly voted to abolish the country's monarchy, giving King Gyanendera [JURIST news archive] fifteen days to abandon his royal palace. which cleared the way for Maoists to serve in government. HRW has been closely watching events in Nepal, issuing a report in July [JURIST report] that Nepali police had been arresting peaceful Tibetan protesters without cause and sexually assaulting women during arrest.

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Fiji ex-PM unable to make statement on treason charges against acting PM
Devin Montgomery on September 12, 2008 8:19 AM ET

[JURIST] Fiji's former Prime Minister Laisenia Qarase [BBC profile] said Friday that police have failed to take his statement [FijiVillage report] regarding treason allegations he has made against the country's interim prime minister, Commodore Frank Bainimarama [BBC profile]. Earlier this month, Qarase charged that Bainimarama and others who participated in a December 2006 military coup [JURIST news archive] had committed treason [Fiji Daily Post report] by ousting Qarase's democratically elected government. Fiji's police commissioner Esala Teleni has said that authorities will not investigate the charges [FijiVillage.com report], despite urging from a government integrity group [Fiji Daily Post report] and Fiji's Human Rights Commission [ABC report]. Qarase has also challenged the acting government's authority [ABC report] to make planned changes to the nation's charter, but Bainimarama has said that his government will not hold elections [FBCJ report] until the changes are approved. The South Asian Post has more.

In March, lawyers for the current government argued that the December military coup [JURIST report] was legal because Fijian President Ratu Josefa Iloilo [official profile] had reserve powers permitting him to dismiss the government and appoint new leaders. Qarase brought suit [JURIST report] in October 2007, saying that the coup which ousted him was illegal and was orchestrated by the armed forces chief and current self-appointed prime minister. Less than two days after December's coup, a previous interim prime minister installed by the military characterized the coup as "illegal" [JURIST report], but defended it as necessary. That case was heard by a three-judge panel led by Acting Chief Justice Anthony Gates, who was appointed [press release] after Bainimarama suspended former Chief Justice Daniel Fatiaki [JURIST report].

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Serbia president urges UN to call for ICJ opinion on Kosovo
Kiely Lewandowski on September 12, 2008 7:43 AM ET

[JURIST] Serbian President Boris Tadic [official website] urged UN members Thursday to support his country's request for an International Court of Justice (ICJ) [official website] advisory opinion on the legality of the unilaterally proclaimed independence of Kosovo [JURIST news archive]. In Thursday's letter [B92 report] to all UN members, Tadic stated:

The opinion of the ICJ as to whether Kosovo’s unilateral independence declaration was in line with international law is the most suitable track of activity in this specific case...The impartial advisory opinion is considered to be the most deserving interpretation of the principles of international legal order. The opinion of the ICJ would significantly contribute to easing tensions created as a consequence of the unilateral declaration of the independence of Kosovo, it would prevent unfavorable developments in the region and facilitate efforts for agreement between all the sides involved.
Tadic stressed [press release] that by asking the ICJ to issue an advisory opinion on the Kosovo issue, the UN can demonstrate the international community's dedication to the rule of international law. AP has more.

Kosovo's constitution [text] went into effect this summer [JURIST report] despite Serbia's argument that the charter of the breakaway province was legally void. Serbia does not recognize Kosovo's unilateral declaration of independence [text; JURIST report], and cannot recognize the country's constitution as a legal fact. Serbia's view is that Kosovo's declaration of independence is a violation of the UN Charter and UN Security Council Resolution 1244 [PDF text], which reaffirms the sovereignty and territorial integrity of the Serbian state. The new state of Kosovo has been recognized by the US and most European states, but not by Russia, Serbia's closest ally.

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US Secretary of the Interior promises swift response to corruption report
Joe Shaulis on September 12, 2008 7:20 AM ET

[JURIST] US Secretary of the Interior Dirk Kempthorne [official profile] pledged Thursday that he would "take swift action to restore the public trust" following an investigation which found corruption in the Department of the Interior (DOI) [official website; JURIST news archive] agency charged with collecting royalties from mineral rights to federal land. In a memorandum accompanying reports [text] released Wednesday, DOI Inspector General Earl E. Devaney [official website] highlighted a "pervasive culture of exclusivity" in the Minerals Management Service (MMS) [official website], where some employees considered themselves "exempt from the rules that govern all other employees of the Federal Government." Devaney recommended that Kempthorne consider firing some employees who remain at the MMS, in addition to those who have already left or been disciplined. Devaney wrote:

In summary, our investigation revealed a relatively small group of individuals wholly lacking in acceptance of or adherence to government ethical standards; management that through passive neglect, at best, or purposeful ignorance, at worst, was blind to easily discernible misconduct; and a program that had aggressive goals and admirable ideals, but was launched without the necessary internal controls in place to ensure conformity with one of its most important principles: "Maintain the highest ethical and professional standards." This must be corrected.
Devaney singled out the Royalty in Kind program (RIK) [official website], the office responsible for sales of commercial oil and gas commodities. There, employees "donned a private sector approach to essentially everything they did" and even considered formally opting themselves out of the Ethics in Government Act [text]. Devaney found that some RIK employees had accepted gifts from oil and gas companies "with prodigious frequency"; engaged in "a culture of substance abuse and promiscuity," including sexual relationships with business associates, and held prohibited outside employment that they failed to disclose. AP has more. The Washington Post has additional coverage.

Devaney's office spent two years and more than $5 million on the investigations, during which which about 230 people were interviewed and roughly 470,000 pages of documents were reviewed. One former employee has pleaded guilty [DOJ press release] to a felony conflict-of-interest charge, while others were referred to the Public Integrity Section of the Department of Justice (DOJ) [official websites] but have not been prosecuted. That conviction was the second related to corruption at the DOI since last year, when former Deputy Interior Secretary J. Steven Griles pleaded guilty [JURIST report] to obstruction of justice for lying to the Senate Indian Affairs Committee about his relationship with former lobbyist Jack Abramoff [JURIST news archive]. Griles was sentenced [JURIST report] to 10 months in prison for his role in the lobbying scandal.

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ICTY finds uncooperative witness guilty of contempt
Devin Montgomery on September 12, 2008 7:16 AM ET

[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website; JURIST news archive] found Ljubisa Petkovic [ICTY case materials, PDF] guilty of contempt [summary judgement; press release] on Thursday for refusing to testify against Serbian war crimes suspect Vojislav Seselj [BBC profile; ICTY case materials, PDF]. Petkovic had been a member of the Serbian Radical Party [party website, in Serbian], of which Seseli had been the president, and refused to testify as a witness for the case's prosecution. Under Rule 77 of the ICTY's Rules of Procedure and Evidence [PDF text], the court has the authority to make a charge of contempt against anyone who disobeys a court subpoena without "just excuses," which it found Petkovic lacked. He was sentenced to four months in prison, but was given credit for the more than three months that he has been held by the court as he awaited trial on the charges. AP has more. UN News Centre has additional coverage.

In late August, the ICTY suspended [press briefing; JURIST report] Seselj's trial pending an appellate ruling on whether the defendant could represent himself. The ICTY had previously stripped Seselj of his right to defend himself [JURIST report] after he failed to appear in court, despite an earlier appeals court ruling that he could represent himself [JURIST report] provided he not engage in courtroom antics that "substantially obstruct the proper and expeditious proceedings in his case." The ICTY has charged Seselj [indictment, PDF; pre-trial brief, PDF] with three counts of crimes against humanity and six counts of war crimes. When the trial began last year, the prosecution made an opening statement [JURIST report] accusing Seselj of inciting atrocities through speeches he made during the Balkan Wars. 

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EU justice commissioner prods Google to shorten data retention period
Joe Shaulis on September 12, 2008 6:58 AM ET

[JURIST] EU Justice and Home Affairs Commissioner Jacques Barrot [official website] on Thursday said Google [corporate website; JURIST news archive] is taking a "step in the right direction" by keeping data on search engine users for nine months rather than 18. Google announced the change [blog posting; Reuters report] this week "to address regulatory concerns" and protect users' privacy [JURIST news archive]. Barrot suggested that Google further reduce the retention period to the EU goal of six months. Google had reduced its retention period from 24 months last year after the European Commission announced it would investigate [JURIST reports] whether Google complies with EU privacy rules [EU Data Protection website]. AP has more.

Google called for new global regulations [JURIST report] last year to protect personal information online, noting that existing guidelines date back as far as 1980. Also in 2007, US privacy groups asked the Federal Trade Commission (FTC) [official website; JURIST news archive] to block Google's acquisition of Internet advertising company DoubleClick over concerns that it would allow users' personal information to be matched with their usage history and habits. The FTC declined to oppose the merger, which European regulators also approved [CNet News reports]. The merger became final [blog posting] this March.

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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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