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Legal news from Saturday, May 2, 2009

Obama may continue military commission process: NYT
Caitlin Price on May 2, 2009 2:14 PM ET

[JURIST] The Obama administration may reinstitute controversial military commission [DOD materials; JURIST news archive] proceedings for Guantanamo Bay [JURIST news archive] military prison detainees in an announcement as early as next week, according to a New York Times report [text] Friday. On his first day in office in January, Obama directed [motion, PDF; JURIST report] military prosecutors to pursue a 120-day continuance in the military commission proceedings against five alleged 9/11 co-conspirators [DOD materials], and then ordered [JURIST report] Secretary of Defense Robert Gates to implement a halt to the proceedings [DOD press release] pending a comprehensive review of all Guantanamo detentions under the supervision of Attorney General Eric Holder. That suspension is set to expire May 20. According to the New York Times report, unidentified officials said that the Department of Justice (DOJ) [official website] remains concerned about the viability of trying terror suspects in federal court and in particular of meeting federal evidentiary standards. Sources said that some detainees may be tried in federal courts, and that the administration would heighten military commission defendants' due process protections to exclude more types of hearsay than under the Bush-era system. The report also said that the government may seek additional continuances in pending military commission proceedings, and that such pleadings may contain details of the administration's new system.

Rights groups have long criticized military commissions [JURIST report] for admitting some evidence that is barred from federal court, including hearsay or coerced confessions. In March 2008, the president of the American Bar Association expressed grave concern over the military commissions process [JURIST report], noting that hearsay testimony and coerced confessions were admitted even when obtained through now-illegal advanced interrogation techniques, such as waterboarding. As a presidential candidate, Obama declared that he would "reject the Military Commissions Act" [speech text], but since assuming the presidency has not definitively ruled out the system. During a Senate Committee on Appropriations hearing [video; JURIST report] last week, Defense Secretary Robert Gates said that military commissions are "still on the table."

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Fiji suspended from 16-nation bloc after failing to schedule elections
Caitlin Price on May 2, 2009 11:55 AM ET

[JURIST] The Pacific Islands Forum [official website] on Saturday suspended [press release] Fiji's membership in the 16-nation bloc after Fiji's current military government failed to meet a May 1 deadline to schedule elections. Niue Premier and Forum Chairman Toke Talagi [official profile] said that the suspension stemmed from Fiji's recent rejection of democratic governance and obligations under the Forum's Biketawa Declaration [text, PDF], adding that a "regime which displays such a total disregard for basic human rights, democracy and freedom has no place in the Pacific Islands Forum." The move suspends Fiji "until further notice" from participating in Forum events or receiving financial assistance for any purpose but the restoration of democracy. Talagi said the possibility of total expulsion had not yet been considered and remained hopeful for Fiji's reinstatement. Fijian Attorney General Aiyaz Sayed Khaiyum [official profile] denounced the suspension [AP report], calling Talagi's statements inaccurate and reiterating that Fiji will not rush to hold elections "at any cost." On Friday, newly reappointed [JURIST report] Fijian Prime Minister Commodore Josaia Voreqe "Frank" Bainimarama [BBC profile; JURIST news archive] insisted that elections cannot be held before September 2014 [China Post report] because the nation must first adopt a new constitution. Bainimarama said a five-year timetable for election and constitutional reform will be released later this month.

On April 10, Fijian President Ratu Josefa Iloilo [official profile] suspended the constitution[JURIST report] and revoked the appointment of all judicial officers after a ruling [JURIST report] from the Fiji Court of Appeal declaring the appointment of the military government following a 2006 coup d'etat [JURIST report] unconstitutional. The UN High Commissioner for Human Rights then urged Iloilo to reinstate the deposed judges [JURIST report], and concerns about the constitutional suspension have also been expressed [statement text] by UN Secretary-General Ban Ki-moon and US State Department [official website] spokesperson Richard Aker, who said that it was a step backwards [press release] for the country, and called on Fiji to continue to recognize rights outlined in the suspended constitution.

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Abu Ghraib guards to appeal convictions after release of interrogation memos
Amelia Mathias on May 2, 2009 10:52 AM ET

[JURIST] Lawyers for former Abu Ghraib [JURIST news archive] guards said the guards intend to appeal their convictions of torture and abuse in light of the recent release of four secret CIA interrogation memos [JURIST report], according to a Friday report [text] in the Washington Post. The lawyers said that the memos raise the possibility that the Abu Ghraib guards were punished as scapegoats, and that they were only following orders from their superiors, as opposed to being the few "bad apples" [Times report] they were portrayed as by military command. Yet while some of the abusive tactics used by the Abu Ghraib guards are detailed in the memos, others are not, leading to speculation that there was still creative abuse beyond the scope of their orders. Twelve guards were ultimately convicted of torture and abuse after pictures came to light in 2004 of prisoners at the Abu Ghraib prison in Afghanistan being abused and humiliated.

Earlier this week, chairman of the US Senate Judiciary Committee [official website] Patrick Leahy (D-VT) [official profile] invited [press release and letter; JURIST report] former head of the Office of Legal Counsel (OLC) [official website] and federal judge Jay Bybee [official profile], who signed off on one of the recently released memos, to testify before the committee. Last month, the Senate Select Committee on Intelligence [official website] released a report [text; JURIST report] by the DOJ indicating that former attorney general John Ashcroft and former secretary of state Condoleezza Rice in 2002 approved the use of waterboarding and other extreme interrogation techniques used by CIA agents against Guantanamo Bay [JURIST news archives] detainees. The report supports many of the conclusions of a Novemeber Senate Armed Services Committee (SASC) [official website] report [text, PDF; JURIST report] detailing the extent of top Bush administration officials' involvement in implementing the techniques, which was declassified [JURIST report] last month.

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Obama seeking independent-minded justice to replace Souter
Amelia Mathias on May 2, 2009 9:48 AM ET

[JURIST] US President Barack Obama interrupted a press briefing [text] Friday to speak about the retirement of Justice David Souter [JURIST report]. Speaking about the nearly two decades of service and dedication that Justice Souter had given to the court, Obama said that he had thanked him on behalf of the American people. Obama then spoke to the process of choosing a new candidate:

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives - whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.
Speculation has centered on the diversity aspects of potential candidates, focusing on women and Hispanics, as well as those without federal appeals court experience [NYT report]. The Obama administration plans to have a new justice in place by autumn [Washington Post report].

Rumors of Souter's retirement began to circulate late Thursday, and were confirmed by the end of the day Friday. Souter has submitted a letter of resignation [text, PDF], and the Supreme Court has issued a press release [text, DOC] confirming his resignation. Souter, 69, was nominated to the Supreme Court by then-president George H.W. Bush and was seated in October 1990. He previously served on the US Court of Appeals for the First Circuit and the New Hampshire Supreme Court. Souter was viewed as one of the more liberal justices, often siding with Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer.

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

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