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Legal news from Friday, October 3, 2008

UN court reopens in northern Kosovo
Devin Montgomery on October 3, 2008 10:23 PM ET

[JURIST] The United Nations Interim Administration Mission in Kosovo (UNMIK) [official website] on Friday reopened its courthouse [press release] in Kosovo's northern city of Mitrovica. The courts were closed after being taken over by Serbian protesters [JURIST report] in March as part of an ethnic conflict with Kosovar Albanians. The mission has said that only vital criminal court functions will be immediately resumed and UNMIK head Lamberto Zannier [appointment release] expressed guarded optimism on the future of the courts:

The reopening of the court in north Mitrovica is a first step to ensure that rule of law is provided to everyone in Kosovo. I am pleased that Belgrade and Pristina are supporting this pragmatic development, which is in everyone’s interest... However, a court – like all rule of law institutions – does not stand in a vacuum. The Court’s success will require continued constructive actions by all sides and the support of the communities that it serves.
AP has more. The UN Press Centre has additional coverage.

In May, the Steering Council of the Kosovo Judges' Association said courts in Kosovo's northern districts had been left in legal limbo [JURIST report] since the Assembly of Kosovo's February unilateral declaration of Kosovo's independence [text; JURIST report] from Serbia. The Council expressed concern that courts in the region were unable to guarantee the protection of peoples' legal rights, a situation that could lead to the violation of Article 6 of the European Convention on Fundamental Rights of and Freedoms [text]. Kosovo's new constitution [text] went into effect [JURIST report] in June despite a declaration by Serbian President Boris Tadic that the charter of the breakaway Serbian province was legally void.

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Prosecution ends probe of Russian journalist murder
Steve Czajkowski on October 3, 2008 9:05 PM ET

[JURIST] Investigators from the Russian Prosecutor General's Office [official website, English version] have completed their investigation into the killing of journalist Anna Politkovskaya [BBC obituary; JURIST news archive], Russian news agencies reported Thursday. Three men, Sergey Khadzhikurbanov, and brothers Dzhabrail and Ibragim Makhmudov, all from Chechnya [JURIST news archive], were arrested last August [JURIST report] in connection with the inquiry into Politkovskaya's murder. The main suspect, Rustam Makhmudov, also from Chechnya, has yet to be captured but Russian authorities have said he is hiding in Western Europe. In May, Makhmudov was charged in absentia [Moscow News report] and an international warrant for his arrest was issued. At this point it was not known which court will hear the case against him. AP has more. The Moscow Times has local coverage.

Politkovskaya wrote for the Russian newspaper Novaya Gazeta [media website, in Russian], and had reported extensively on the conflict between the Russian army and separatist forces in Chechnya beginning in 1999. She was shot [JURIST report] in the head and chest after returning to her Moscow apartment building on October 7, 2006. She was a well-known critic of then Russian President Vladimir Putin [JURIST news archive], and authored two books on Chechnya. Russian Prosecutor General Yuri Chaika [official website] has said that Politkovskaya's murder was orchestrated by a Moscow-based Chechen criminal group specializing in contract killings.

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Second Circuit overturns terror funding convictions of Yemeni cleric and assistant
Steve Czajkowski on October 3, 2008 8:00 PM ET

[JURIST] The US Court of Appeals for the Second Circuit [official website] Thursday overturned [opinion, PDF] the convictions of Yemeni cleric Sheikh Mohammed Ali Hassan al-Moayad and assistant, Mohammed Zayed [advocacy website], also from Yemen, because of evidentiary errors that were prejudicial to the extent that they deprived the defendants of a fair trial. Al-Moayad and Zayed had been convicted [JURIST report] in March 2005 on charges that they lead a terror-funding network based in Brooklyn, NY. At their convictions, both maintained that additional evidence on government surveillance recordings would have showed they were not guilty. During their appeal, Al-Moayad and Zayed argued that they had been entrapped by government informants and presented character witnesses who said neither of the two condoned violence and that they had spoken out against terrorist acts. In support of its ruling the appeals court said:

We believe that, in the aggregate, the district court’s errors deprived the defendants of a fair trial. The district court’s cumulated errors in admitting Al-Anssi’s notes and the testimony of Gideon Black and Yahya Goba “cast such a serious doubt on the fairness of the trial” as to warrant reversal of the defendants’ convictions. That doubt is especially grave when we also take into account the district court’s erroneous admission of the mujahidin form, the wedding video, and the Croatian last will and testament, as well as its questionable handling of the derivative entrapment issue.
CNN has more. The New York Times has local coverage.

In July 2005, a judge from the US District Court for the Eastern District of New York [official website] sentenced Al-Moayad to 75 years in prison and fined him $1.25 million. Al-Moayad and Zayed were arrested in Germany in 2003 after telling a federal agent posing as a US businessman that they would help him funnel money to militants. Al-Moayad was later extradited to the United States where he was acquitted of actually funding al-Qaeda, but was found guilty of providing material support and resources to Hamas.

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Iraq Presidency Council signs provincial elections bill
Devin Montgomery on October 3, 2008 7:34 PM ET

[JURIST] The Iraqi Presidency Council on Friday signed a provincial elections bill [JURIST news archive] allowing for voting in most of the country early next year. The final version did not include a controversial clause that Staffan de Mistura [appointment release], the UN special representative to Iraq, had urged Iraqi lawmakers to reintroduce [UN News Centre and BBC News reports]. That clause, which would guarantee legislative seats to religious minorities, was removed from the bill because of uncertainty on how to determine the number of seats to be set aside for the groups. De Mistura expressed disappointment at the removal, saying the clause had been a "strong indication Iraq is a nation ready to protect the political rights of minorities as founded in the Constitution." Earlier this week, Iraqi Prime Minister Nouri al-Maliki [BBC profile; JURIST news archive] also called [JURIST report] for the inclusion of the representation guarantee, saying it would help assuage minority fears of oppression. The bill can be amended before elections are held. AFP has more.

The provincial elections bill was passed [JURIST report] by the Iraqi Parliament [official website, in Arabic] last week. The parliament debated the elections bill for months, with a main point of disagreement being over provisions relating to the ethnically-diverse Kirkuk [GlobalSecurity.org backgrounder] region in the north of the country. After several failures [JURIST report], the parliament accepted a UN-proposed compromise [White House press release] allowing elections in the rest of the country to proceed, as former opponents of the plan said they were confident an agreement could be reached to carry out elections in Kirkuk. Earlier this month, Iraqi lawmakers agreed to temporarily divide control of Kirkuk [JURIST report] among the city's ethnic groups until a permanent governing plan is established.

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$700 billion US financial rescue bill becomes law
Andrew Gilmore on October 3, 2008 4:38 PM ET

[JURIST] The US House of Representatives [official website] on Friday passed a $700 billion financial rescue bill [HR 1424 text, PDF] that President Bush quickly signed into law [WSJ report]. The House approved the Emergency Economic Stabilization Act of 2008 by a vote [roll call] of 263-171 four days after it defeated an earlier version [JURIST report] of the bill. The final bill authorizes the Department of the Treasury [official website] to establish a Troubled Assets Relief Program (TARP) to purchase troubled assets from financial institutions and to provide insurance and guarantees for any troubled asset originated before to March 14, 2008. "Troubled assets" are defined as residential or commercial mortgages or securities, obligations or other financial instruments based on or related to them. The legislation also gives Treasury Secretary Henry Paulson [official profile] discretion to designate any other financial instrument a troubled asset, with the consent of Congress. After the House passed the bill, President Bush said [statement text]:

A major problem in our financial system is that banks have restricted the flow of credit to businesses and consumers; many of the assets these banks are holding have lost value. The legislation Congress passed today addresses this problem head on by providing a variety of new tools to the government - such as allowing us to purchase some of the troubled assets, and creating a new government insurance program that will guarantee the value of others. The bill also ensures that these new programs are carried out in a way that protects taxpayers. It prevents failed executives from receiving windfalls from taxpayers' dollars. It establishes a bipartisan board to oversee the plan's implementation.
The act establishes a Financial Stability Oversight Board to review Treasury actions taken under the legislation. While allowing courts to set aside actions that are "arbitrary, capricious, an abuse of discretion, or not in accordance with law," the legislation protects the Treasury secretary from any injunctions other than those to remedy constitutional violations. It provides for expedited review of requests for restraining orders or injunctions and automatically stays any equitable relief issued against Treasury secretary for actions pursuant to certain provisions. The act also temporarily increases the amount of deposit insurance provided by the Federal Deposit Insurance Corporation (FDIC) [official website] from $100,000 to $250,000. The New York Times has more. The Washington Post has additional coverage.

After the original bill failed in the House, the Senate on Wednesday approved [roll call] a version that incorporated a number of "sweeteners" to make the legislation more palatable to Democratic and Republican representatives who had opposed it. Among these additions are:
  • the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, which the Senate initially passed [JURIST report] last week.
  • extensions of a number of tax credits and incentives, including the renewable energy tax Credit and the New Markets Tax Credit [CDFI backgrounder].
  • an extension of taxpayer relief from the alternative minimum tax [IRS backgrounder].
  • emergency relief provisions for Americans affected by recent hurricanes and other natural disasters.
Last week, Senate Democrats questioned the legality [JURIST report] of the Bush administration's proposed version of the legislation, which would have precluded judicial oversight of the asset purchases. Led by Sen. Christopher Dodd (D-CT), chairman of the Senate Banking Committee [official websites], the Democrats put forth their own proposal that included the judicial review language. Some observers had expressed concern that the Bush proposal would represent an unconstitutional delegation of the spending powers granted to Congress by Article I of the US Constitution [text].

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Nine US states and Canada province sue EPA over water transfer regulation
Joe Shaulis on October 3, 2008 3:23 PM ET

[JURIST] Nine US states and the Canadian province of Manitoba sued the US Environmental Protection Agency [official website] Thursday, alleging that an agency regulation [PDF text] allows the discharge of polluted water in violation of the Clean Water Act [text; EPA materials]. In a complaint filed [NY AG press release] in US District Court for the Southern District of New York [official website], the state attorneys general assert that the Water Transfer Rule promulgated in June exempts transfers from one body of water to another without an intervening use from permitting requirements under the National Pollutant Discharge Elimination System (NPDES) [EPA backgrounder]. Minnesota Attorney General Lori Swanson said [press release] the regulation "jeopardize[s] both our economy and our fishing, boating, and outdoors way of life by allowing polluted water to be diverted into Minnesota lakes and rivers." The attorneys generals' complaint claims that the regulation exceeds the EPA's statutory authority and is arbitrary, capricious and an abuse of discretion. Bloomberg News has more.

Last month, the US Court of Appeals for the Sixth Circuit ruled [JURIST report] on a suit brought by several environmental groups seeking to compel the EPA to implement antidegradation requirements for Kentucky under the Clean Water Act. The court affirmed summary judgment [opinion, PDF] in favor of the EPA on some issues, reversed it on others and remanded the matter to the EPA.

The EPA has been sued in recent months by a number of states seeking either the promulgation of regulations or effective response to petitions. In August, 12 states filed suit [press release; JURIST report] against the EPA for its alleged failure to enforce provisions of the Clean Air Act [text; EPA materials] requiring oil refineries to adopt measures curbing the pollution contributing to global warming. In July, California Attorney General Jerry Brown [official website] formally notified [letter, PDF; press release] the EPA that the state had petitioned the EPA three times seeking a regulatory ruling and would file a lawsuit [JURIST report] against the agency if it refused to issue rules regulating greenhouse gas emissions from various vehicles and types of machinery.

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Top UK police chief resigns in wake of Menezes inquiry, other problems
Andrew Gilmore on October 3, 2008 10:30 AM ET

[JURIST] Sir Ian Blair [official profile] resigned Thursday from his position as Commissioner of London's Metropolitan Police Service ("Met") [official website], effective December 1, 2008. Blair cited a strained relationship with the newly-elected mayor of London, Boris Johnson [official profile], and the mayor's decision for new leadership at the Met as the leading factors in his decision to resign. In a letter [text, PDF] UK Home Secretary Jacqui Smith [official profile] thanked Blair for his leadership through the July 7, 2005 London transit bombings [JURIST news archive]. In a corresponding letter [text, PDF] to Johnson, Smith indicated that the search for Blair's replacement would begin immediately. In a prepared statement [text], Blair said:

I am resigning in the best interests of the people of London and the Metropolitan Police Service. I would have wished to continue to serve Londoners until my term of office expired in February 2010. However, at a meeting yesterday, the new Mayor made clear, in a very pleasant but determined way, that he wished there to be a change of leadership at the Met. I understand that to serve effectively the commissioner must have the confidence of both the mayor and the home secretary. Without the mayor's backing, I do not consider that I can continue in the job. Personally I see no bar to working effectively with the new mayor, but it is there that we differ and hence I am unable to continue. The home secretary has asked that I should stay for enough time for the process of appointing my successor to be got under way. I will therefore leave office on December 1, 2008, giving the home secretary and Metropolitan Police Authority time to make plans for the appointment of my successor. I offer Boris Johnson and his team at City Hall and at the Police Authority the very best of fortune.
BBC News has more. The New York Times has additional coverage.

Blair's three-year tenure as Commissioner of the Met was dominated by terrorism-related issues. He was ultimately cleared of any wrongdoing [JURIST report] in the shooting of Jean Charles de Menezes [BBC profile] in a London Tube station after he was mistakenly identified as a terrorist after a second and this time failed series of bombings in late July 2005, but his public reputation was sullied by the incident. Blair also advocated extending the current 28-day detention limit for uncharged terrorism suspects [JURIST news archive], which soon may increase to 42 days if legislation now before Parliament is passed.

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New UN human rights chief calls for release of Myanmar political prisoners
Eric Firkel on October 3, 2008 7:54 AM ET

[JURIST] The newly appointed UN High Commissioner for Human Rights [official website] on Thursday urged the military-led government of Myanmar to release its remaining political prisoners as she called attention to "unjust or inappropriate" detentions worldwide. Navanethem (Navi) Pillay [official profile], who took office last month, said during a news conference [UN News Centre report] that Myanmar continues to incarcerate an estimated 2,000 political prisoners, even after more than 9,000 prisoners were released [JURIST report] last month. In particular, Pillay condemned the continued imprisonment of pro-democracy party leader Aung San Suu Kyi [BBC profile; JURIST news archive], calling the detention illegal "even in respect of [Myanmar's] laws." Pillay's comments preceded the observance of Dignity and Justice for Detainees Week [UNHCHR materials], beginning Monday, which commemorates the 60th anniversary of the Universal Declaration of Human Rights [declaration text]. AFP has more.

In June, the UN Human Rights Council (UNHRC) criticized Myanmar [JURIST report] for its continued human rights abuses and refusal to cooperate with humanitarian groups. The resolution called on the Myanmar government to free political prisoners, stop recruiting child soldiers and implement earlier UNHRC resolutions regarding the country's human rights situation. The UNHRC passed a similar resolution [JURIST report] in March condemning the Myanmar government for continuous abuses of human rights and fundamental freedoms.

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US military contractor claims immunity in seeking Abu Ghraib lawsuit dismissal
Deirdre Jurand on October 3, 2008 7:30 AM ET

[JURIST] Lawyers for private US military contractor CACI International [corporate website] filed a motion Thursday to dismiss a torture lawsuit against the company based on a claim of immunity. In July, four former detainees at Iraq's Abu Ghraib prison [JURIST news archive] filed lawsuits [CCR materials; JURIST report] against CACI and L-3 Communications [corporate website], which performed interrogation and interpretation work for the US military, alleging that they violated the Geneva Convention, the Army Field Manual [texts] and US law by torturing and conspiring to torture the detainees. They further alleged that CACI and L-3 negligently failed to prevent the torture. In a motion to stay discovery [text, PDF] filed last week in US District Court for the Eastern District of Virginia [official website], CACI's lawyers argued that the company is protected by derivative absolute immunity [Mangold v. Analytic Services, Inc. text] because its work was ordered by the government:

[T]he CACI Defendants will assert a defense of absolute official immunity in a motion to dismiss the Amended Complaint in this action. That motion will be filed shortly after the filing of the present motion. As a matter of binding Circuit precedent, this Court may not permit Plaintiffs to take discovery prior to the Court’s resolution of the CACI Defendants’ motion to dismiss based on derivative absolute official immunity.
A hearing on the motions is scheduled for Friday. AP has more.

The actions brought in July followed a similar suit [JURIST report] filed in May by an ex-detainee who alleged that the contractors engaged in torture and conspiracy at the prison. Last year, US District Judge James Robertson refused to dismiss [order, PDF; JURIST report] a class action lawsuit [CCR materials] against CACI in which an amended complaint [text, PDF; JURIST report] alleged that CACI was responsible for the torture of more than 250 former detainees held in Iraqi prisons. Earlier this month, lawyers for CACI argued [brief, PDF] that judges for the US District Court for the District of Columbia should grant CACI summary judgment in that case because the company agents acted under exclusive military control.

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DHS easing restrictions on HIV-positive visitors to US
Eric Firkel on October 3, 2008 7:16 AM ET

[JURIST] The US Department of Homeland Security (DHS) [official website] is preparing to implement a new regulation [text; fact sheet] that relaxes restrictions on issuing US visas to HIV-positive visitors. The regulation allows HIV-positive foreigners seeking to visit the US to receive temporary, non-immigrant visas without undergoing an individualized waiver process. In announcing the change [DHS press release], Homeland Security Secretary Michael Chertoff [official profile] said the regulation "significantly improves the opportunities for individuals seeking to visit the US who were previously inadmissible because of an HIV infection" while "while maintaining a high level of security at our borders." The regulation will allow some HIV-positive applicants to receive visas within one day, rather than waiting an average of 18 days for processing. The San Francisco Chronicle has more.

Thirteen nations ban the entry of most HIV-positive individuals, as the US has since 1987. In July, President Bush signed legislation [PDF text; White House fact sheet] reauthorizing the President's Emergency Plan for AIDS Relief (PEPFAR) [official website] and removing a statutory restriction on issuing visas to HIV-positive foreigners. A Department of Health and Human Services (HHS) regulation [PDF text] continues to classify HIV as a "communicable disease of public health significance" [USCIS backgrounder], making waivers necessary for HIV-positive visa applicants until this week's DHS action. The Gay Men's Health Crisis [advocacy website] and other groups have called on HHS [press release] to remove HIV from that classification.

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Canada watch group brings suit to challenge early election
Devin Montgomery on October 3, 2008 6:44 AM ET

[JURIST] Canadian government accountability group Democracy Watch [advocacy website] brought a lawsuit [argument, PDF; press release] on Thursday, seeking to postpone the country's parliamentary elections scheduled for October 14. The group argues that the elections, proposed by Prime Minister Stephen Harper [official profile], would violate a 2007 amendment [Bill C-16 materials] to the Canada Elections Act. Under the amendment, the next election would be held in October 2009. The group argues that only a vote of no-confidence by Parliament can legitimately bring an early election, and that allowing the prime minister to schedule elections goes against the intent of the amendment. The group also argues that giving the prime minister such control would allow the ruling party to schedule elections during periods of popular support, and to prepare for elections before they are announced. The Globe and Mail has more. The Ottowa Citizen has additional coverage.

In 2007, the Canadian Senate [official website] passed the bill [JURIST report] providing that elections be held on the third Monday of October every four years [Privy Council backgrounder], and it became law shortly thereafter. Former Minister for Democratic Reform Rob Nicholson [official profile] introduced the bill [JURIST report] in 2006 on behalf of Canada's new Conservative government to promote "greater fairness" in the Canadian electoral system, since pre-existing rules let the prime minister choose the date for the general election and tell the governor general to dissolve Parliament. One of the justifications of the bill at the time was that it would prevent unfair manipulation of election dates by ruling parties.

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

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