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Legal news from Thursday, May 21, 2009

Myanmar authorities again close Suu Kyi trial
Andrew Morgan on May 21, 2009 3:46 PM ET

[JURIST] Authorities in Myanmar on Thursday closed the trial of pro-democracy advocate and Nobel Laureate Aung San Suu Kyi [BBC profile; JURIST news archive] after briefly opening it to 30 foreign diplomats [JURIST report] Wednesday. UN Secretary General Ban Ki Moon [official website] said Wednesday that he plans to visit Myanmar "as soon as possible" to urge the release of Suu Kyi and other political prisoners. In an interview with CNN [video], Ban said that he was "deeply concerned" about the detention of "an indispensable patron for reconsidering the dialogue in Myanmar." Suu Kyi went on trial [JURIST report] Monday for violating the terms of her house arrest after an American man swam across a lake [NYT report] to her home. Human Rights Watch (HRW) [advocacy website] has condemned Myanmar's actions, calling the charges "trumped up" [HRW report] and seeking international support for her release.

Suu Kyi, the leader of the National League for Democracy, has spent 12 of the past 18 years in prison or under house arrest for alleged violations of an anti-subversion law [text]. In 2007, the military government had implied that she might be released [JURIST report] after the country's new constitution was approved. In May 2008, the junta announced that Myanmar's draft constitution [JURIST news archive] had been overwhelmingly approved [JURIST report], but the ruling junta at the same time extended Suu Kyi's house arrest for another year [JURIST report].

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US embassy bombing suspect to be tried in federal court
Christian Ehret on May 21, 2009 2:58 PM ET

[JURIST] The US Department of Justice (DOJ) [official website] announced [press release] Thursday that accused bomber and Guantanamo Bay [JURIST news archive] detainee Ahmed Khalfan Ghailani [GlobalSecurity profile] will be prosecuted in a US federal court for his alleged role in the 1998 bombings of US embassies [PBS backgrounder] in Kenya and Tanzania. The announcement follows the ordered review of all Guantanamo detainees pursuant to plans to close the detention facility [JURIST news archive]. Ghailani was charged [charge sheet, PDF; JURIST report] with several terrorism-related counts in March, 2008 under the Military Commissions Act [text, PDF]. Attorney General Eric Holder [official profile] stressed the importance of prosecuting Ghailani, stating that doing so will:

ensure that he finally answers for his alleged role in the bombing of our embassies in Tanzania and Kenya. This administration is committed to keeping the American people safe and upholding the rule of law, and by closing Guantanamo and bringing terrorists housed there to justice we will make our nation stronger and safer.
President Barack Obama [official profile] said Thursday in a speech on national security [transcript; JURIST report] that preventing Ghailani from coming to the US would prevent his trial and conviction and that it is time to see that justice is served.

Ghailani was initially indicted in 1998 by a federal grand jury in the Southern District of New York and currently faces 286 different counts against him. He was captured in 2004 and transferred to Guantanamo Bay in September 2006. In January, the US Court of Appeals for the Second Circuit [official website] denied a request to rehear [JURIST report] a case against Wadih El-Hage [GlobalSecurity profiles], who was convicted for his involvement in the embassy bombings. In November, the Second Circuit upheld [JURIST report] the convictions of El Hage, Mohamed Sadeek Odeh, Mohamed Rashed Daoud Al-Owhali [GlobalSecurity profiles] for their involvement in the bombings, holding that the US government did not violate their constitutional rights.

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Obama defends Guantanamo closure plan, urges commitment to rule of law
Andrew Morgan on May 21, 2009 1:33 PM ET

[JURIST] US President Barack Obama [official profile] on Thursday reaffirmed [speech transcript] his commitment to closing the Guantanamo Bay detention facility while upholding the rule of law by trying some detainees in federal courts and others in modified military commissions [JURIST news archives]. In a speech focusing on national security issues at the National Archives [official website], Obama said that Guantanamo detainees who are charged with violating American criminal law should be tried in federal courts "whenever feasible." Citing the terrorism convictions of Ramzi Yousef [GlobalSecurity backgrounder], Zacarias Moussaoui, and Ali Saleh Kahlah al-Marri [JURIST news archives] in American courts, Obama said that "our courts and our juries, our citizens, are tough enough to convict terrorists." Detainees who are accused of violations of the laws of war would be better tried by military commissions, Obama said, after the commissions are brought "in line with the rule of law" by a series of bipartisan reforms [JURIST report]. Still other detainees would be transferred to other countries [JURIST report] for continued detention or released as ordered by US courts. Turning to what he called the "toughest single issue we will face," Obama proposed a detention system where those who cannot be tried, but nonetheless pose a "clear danger to the American people," could be detained without trial subject to judicial and congressional oversight:

Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture, like other prisoners of war, must prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can't be based simply on what I or the executive branch decide alone. And that's why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law.

We must have clear, defensible, and lawful standards for those who fall into this category. [There] must be fair procedures so that we don't make mistakes. We must have a thorough process of periodic review so that any prolonged detention is carefully evaluated and justified.
Rejecting criticism that incarcerating Guantanamo detainees in American prisons would pose a threat to the public [JURIST report], Obama pointed out that "[n]obody has ever escaped from one of our federal super-max prisons which hold hundreds of convicted terrorists" and called "the idea that we cannot find a place to securely house 250-plus detainees ... not rational." Obama also addressed his recent decision not to disclose photographs of detainee abuse, saying that it was consistent with his April decision to release CIA interrogation memos [JURIST reports]. Obama said that the information in the memos was widely available to the public, while the photographs would "inflame anti-American opinion and allow our enemies to paint U.S. troops with a broad, damning, and inaccurate brush, thereby endangering them in theaters of war." Saying that he "had to strike the right balance between transparency and national security," Obama clarified that he would not "protect information merely because it reveals the violation of a law or embarrassment to the government."

Obama's speech comes a day after the US Senate passed an amendment [JURIST report] eliminating $80 million intended to be used for the closure of Guantanamo until the president provides a "comprehensive, responsible plan" to do so. In a March interview [CBS interview transcript] with 60 Minutes, Obama reiterated [JURIST report] his position that US policies governing the detention and interrogation of Guantanamo detainees should comport with due process and international law requirements. In January, Obama issued an executive order [text; JURIST report] directing the military prison be closed "as soon as practicable and no later than one year from the date of this order."

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New Hampshire House rejects amended same-sex marriage bill
Christian Ehret on May 21, 2009 1:22 PM ET

[JURIST] The New Hampshire House of Representatives [official website] on Wednesday rejected a same-sex marriage bill [text] after it was amended [text] at the request [JURIST report] of Governor John Lynch [official website]. The bill was defeated by a 186-188 vote [roll call vote] after a religious liberty protection clause was added to gain Lynch's approval. The amended bill, which specified that religious groups will not be required to perform or recognize the unions, was approved by the Senate [docket text] by a 14-10 vote earlier Wednesday. Representative Steve Vaillancourt (R) [official profile], a supporter of same-sex marriage, voted against the religious liberty amendment on the principle that the House should not be "bullied" [Reuters report] by the governor. Lynch has previously opposed same-sex marriage in the state, saying that the New Hampshire civil union law [JURIST report] passed in 2007 provides the same legal protections for same-sex couples.

The previous version of the bill was approved by the House [JURIST report] by a 186-179 vote in March. Recently, the New York State Assembly [official website] passed a bill [JURIST report] that would allow same-sex marriages to be performed in the state. That bill will now go before the state senate. Earlier this month, Maine became the fifth state to allow same-sex marriage [JURIST report] when Governor John Baldacci [official website] signed a same-sex marriage bill into law. Last month, Vermont became the first state to legalize same-sex marriage through a vote of the legislature, joining Massachusetts, Connecticut, and Iowa [JURIST reports] as the other states that allow same-sex marriage.

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Italy CIA rendition trial to continue despite excluded evidence
Christian Ehret on May 21, 2009 11:52 AM ET

[JURIST] An Italian judge ruled Wednesday that the trial of 26 Americans and seven Italians [JURIST news archive] involving the 2003 abduction of Egyptian cleric Osama Moustafa Hassan Nasr by the CIA will proceed despite excluded evidence. Judge Oscar Magi of the Fourth Chamber of the Court of Milan [official website, in Italian] determined that the case will continue despite a ruling [Reuters report] by Italy's Constitutional Court [official website, in Italian] that excluded certain evidence on the grounds of national security [JURIST report]. The excluded evidence includes defense witnesses [AP report] Prime Minister Silvio Berlusconi [official profile, in Italian] and former prime minister Romano Prodi as well as prosecutorial evidence [Repubblica report, in Italian] stemming from the classified identities of members of Italy's Military Intelligence and Security Service [official website, in Italian] and their relation to the CIA. The exclusion of the evidence was described by defense lawyers as a fatal blow for the prosecution.

Nasr, also known as Abu Omar, was seized on the streets of Milan in 2003 by CIA agents with the help of Italian operatives, then allegedly transferred to Egypt and tortured by Egypt's State Security Intelligence before being released [JURIST reports] in February 2007. The trial has been delayed many times throughout its course. In December, Magi delayed the trial for three months [JURIST report] after the government said the testimony could compromise Italy’s national security.

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Obama signs financial fraud legislation to create investigatory commission
Christian Ehret on May 21, 2009 10:40 AM ET

[JURIST] US President Barack Obama [official profile] on Wednesday signed into law [press release] the Fraud Enforcement and Recovery Act [S 386 materials], which aims at expanding the federal government's authority to prosecute acts of financial fraud. Obama said [press release] that the legislation would "ensure that the problems that led us into this [economic] crisis never happen again." The bill, approved by the House of Representatives on Monday [JURIST report], seeks to improve the enforcement of fraud resulting from mortgages, securities and commodities, financial institutions, and federal assistance and relief programs and to recover funds lost to such fraudulent activities. The bill establishes a "financial crisis inquiry commission" made up of 10 people with subpoena power appointed by both the majority and minority leaders of the Senate and House. The commission will examine "the causes of the current financial and economic crisis in the United States," as well as "the causes of the collapse of each major financial institution that failed." The Act requires "any department, agency, bureau, board, commission, office, independent establishment, or instrumentality of the United States" to give the commission any information related to their inquiries, including confidential information. Obama also approved the Helping Families Save Their Homes Act [S 896 materials] on Wednesday, a legislative attempt at stabilizing and reforming US financial and housing markets.

In April, the House approved a bill [HR 1664 materials, JURIST report] which allows the Treasury Department to ban certain types of compensation at companies which receive federal bailout money from the Troubled Asset Relief Program (TARP). In March, the House passed a bill [HR 1586 materials, JURIST report] that would tax bonuses given to employees of companies that received money from government stimulus programs at 90 percent. The bill was drafted and voted on in reaction to large bonus payments made to employees of American International Group (AIG) [corporate website]. Attempts to gain control over the disrupted credit markets and possible widespread bank insolvencies have included the passage in September of a $700 billion financial rescue bill [JURIST report], creating the Troubled Assets Relief Program (TARP), which provided economic assistance to at-risk financial institutions.

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Slovakia Constitutional Court finds anti-corruption court unconstitutional
Andrew Morgan on May 21, 2009 10:02 AM ET

[JURIST] The Constitutional Court of Slovakia [official website] ruled [press release, PDF, in Slovak] Wednesday that the Special Court, established to try corruption and organized crime cases, violates the Slovak Constitution [text, PDF]. The Constitutional Court found that the ability of the National Security Authority (NBU) [official website] to revoke the security clearances of Special Court judges without clear rules rendered the Special Court insufficiently independent of the executive branch, violating the constitution's separation of powers principle. While effectively dissolving the Special Court, the Constitutional Court said that the tribunal's past rulings would remain in effect, including several high profile public corruption and organized crime convictions. The Constitutional Court also found that the compensation paid to Special Court justices was excessive, a major point of contention among the 46 members of parliament who brought the suit. Justice Minister Stefan Harabin [official profile], who has opposed the court since its inception, welcomed [Slovak Spectator report] Wednesday's decision. Prime Minister Robert Fico [official profile, in Slovak] said in a press conference [SITA report, in Slovak] that the decision was "unpleasant for us because we will have a lot of work to [do]," but emphasized that he will respect the decision of the Constitutional Court.

Public corruption and organized crime have been a consistent concern in European Union (EU) member and candidate countries Eastern Europe. In January, European Commission (EC) [official website] President Jose Manuel Barroso [official profile] said that Romania needed to show more results [JURIST report] in its fight against corruption. The EC has express similar concerns [EC report] about Bulgaria, who ascended to the EU at the same time as Romania. Albania's accession to the EU has been hindered by concerns over corruption and the influence of organized crime, such as the February shooting [JURIST report] of an Albanian Supreme Court [official website] judge outside of his home.

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Obama issues preemption directive limiting Bush regulatory overrides of states
Christian Ehret on May 21, 2009 8:43 AM ET

[JURIST] US President Barack Obama [official profile] on Wednesday directed [memorandum] heads of executive departments and agencies that a sufficient legal basis is required to preempt state laws and that any legitimate state prerogatives should be fully considered, marking a departure from Bush administration policy. The memo directs against the inclusion of preemption provisions in federal regulations except where they would be justified under legal principles of federalism such as those listed in Executive Order 13132 [text, PDF]. The memo also directs heads of executive departments and agencies to review regulations issued in the past 10 years that attempt to preempt state law to determine if such preemption is justified and, if it is not, to take remedial actions which may include amending the regulations. The policy is a change from the Bush administration's use of federal regulations to undercut state protections [AP report] of health, safety, and the environment. Obama maintained that while the federal government's role in regulation is critical, state and local governments have frequently protected general welfare and individual liberties more aggressively and that:

Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values.
The American Association for Justice [advocacy group] applauded the memo [press release], stating that the policy allows the rule of law to "once again prevail over the rule of politics."

Preemption of state law occurs when federal law conflicts or is inconsistent with existing state law. The Supremacy Clause of the US Constitution [Article VI, text; LII backgrounder] states that federal law "shall be the supreme Law of the Land." In March, the Supreme Court ruled [opinion, PDF; JURIST report] that drug labeling requirements under the federal Food, Drug and Cosmetic Act (FDCA) [text] did not preempt state products liability laws. In December, the Court ruled [opinion, PDF; JURIST report] that the Federal Cigarette Labeling and Advertising Act [text] did not preempt state law claims based on allegedly deceptive cigarette advertising.

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Canadian held in US pleads guilty to supporting al Qaeda
Andrew Morgan on May 21, 2009 8:34 AM ET

[JURIST] A Canadian man pleaded guilty [press release] Wednesday to one count of conspiring to provide material support to al Qaeda [JURIST news archive] before a federal court. Mohammed Abdullah Warsame, a Canadian citizen of Somali descent, was charged with one count of conspiracy to provide material support [18 USC § 2339B] to al Qaeda, one count of providing material support to al Qaeda, and three counts of making false statements to the FBI. As part of a plea agreement, the government agreed to drop the remaining charges in exchange for Warsame's admission of guilt, which carries a statutory minimum sentence of 15 years. The charges stem from his attendance of an al Qaeda training camp in Afghanistan in 2000, and his continued involvement with al Qaeda operatives through 2003 after his relocation to Canada and Minneapolis. Warsame has been held in solitary confinement since his arrest and indictment [JURIST report] in 2004.

Warsame is the latest terrorism suspect to plead guilty in US federal courts. Earlier this month, al Qaeda operative Ali Saleh Kahlah al-Marri [NYT profile; JURIST news archive] pleaded guilty [JURIST report] to an identical conspiracy charge. Al-Marri was charged [JURIST report] in February, after President Barack Obama issued an executive order [press release; JURIST report] directing a review of his case. Also in February, US citizen Christopher Paul was sentenced [JURIST report] to 20 years in prison for conspiring with other al Qaeda members to use a weapon of mass destruction to bomb European tourist sites and US military and government facilities oversea. Two other men connected to Paul, Iyman Faris [Global Security profile] and Nuradin Abdi, pleaded guilty to terrorism-related conspiracy charges in 2003 and 2007 [JURIST reports], respectively.

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FBI director says releasing Guantanamo detainees into US could harm national security
Devin Montgomery on May 21, 2009 8:06 AM ET

[JURIST] FBI Director Robert Mueller [official profile; JURIST news archive] told the US House Judiciary Committee [hearing schedule] Wednesday that the transfer of Guantanamo Bay [JURIST news archives] detainees to the US could pose a threat to national security, even if they remain in maximum security facilities. He said that they could either participate in terrorist activities [AP report] directly or finance or organize others to do so, even from prison. Mueller also testified that changes the agency has made since 2001 have made it better prepared to address national security [opening statement, PDF] and other concerns. He said that the agency's top three priorities are counterterrorism, counterintelligence, and cyber security, but that they are also focused on financial and other domestic and international crimes. Mueller said that to address these issues, the agency has changed the way it collects and shares intelligence, has employed new technologies, and has improved the way in which it uses agents:

the Federal Bureau of Investigation (FBI) [has] undergone unprecedented transformation in recent years, from developing the intelligence capabilities necessary to address emerging terrorist and criminal threats, to creating the administrative and technological structure necessary to meet our new mission as a national security service.

Today, the FBI is a stronger organization, combining greater intelligence capabilities with a longstanding commitment to protecting the American people from criminal threats. We are also mindful that our mission is not just to safeguard American lives, but also to safeguard American liberties.
The two areas in which the FBI has drawn the most attention recently are in its counterterrorism and financial fraud prevention efforts. Earlier this month, a Department of Justice report [text, PDF] concluded that the FBI was failing to maintain [JURIST report] an accurate terrorist watchlist. In September 2008, the agency defended broader investigation guidelines, which had been criticized [JURIST reports] as allowing ethnic profiling and the violation of civil liberties. In March, Mueller admitted that an increase in financial fraud investigations had drawn resources away [JURIST report] from other investigations, after FBI Deputy Director John Pistole [official profile] said in February that the financial fraud investigations were taking an increasingly important role [JURIST report] at the agency.

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House passes Senate version of credit card holders' 'bill of rights'
Brian Jackson on May 21, 2009 7:07 AM ET

[JURIST] The US House of Representatives [official website] on Wednesday voted 361-64 [roll call] to pass the Senate version of the Credit Card Holders' Bill of Rights [text, PDF]. Speaker of the House Nancy Pelosi (D-CA) [official website] called the bill historic, and a stern rebuke to credit card companies that, "have unfairly profited at the expense of responsible, hardworking Americans who pay their bills on time, and manage their household finances sensibly. The bill passed the Senate 90-5 [JURIST report] on Tuesday. American Bankers Association [official website] President Edward Yingling called the Senate version of the bill a device that may shrink the availability of credit for consumers [press release]. It is believed that President Obama will sign the bill before Memorial Day.

The House also passed a controversial amendment [roll call] to the bill introduced by Senator Tom Coburn (R-OK) [official website] that would allow visitors to National Parks to carry firearms [press release]. While the NRA applauded the amendment's bi-partisan passage [press release], Speaker Pelosi condemned the Senate for wasting time, offering, "unrelated amendments that undermine our nation’s gun safety laws."

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UN rights investigator to continue Gaza Strip mission despite Israel objections
Devin Montgomery on May 21, 2009 6:03 AM ET

[JURIST] UN rights investigator Richard Goldman [appointment release; JURIST report] said Wednesday that his fact-finding mission into possible human rights violations during the recent Gaza Strip conflict [JURIST news archive] will continue despite objections by Israel. Goldman said that he plans to travel to the region in June and will hold public hearings to collect testimony about the alleged abuses. He also said that he hopes to visit both Israel and the Palestinian Territory during the trip, but that Israel has not responded to a request to enter the country. Israeli Foreign Ministry spokesman Yigal Palmor said Wednesday that the country objects to the mission [AP report] because it was originally commissioned only to investigate those abuses allegedly committed against Palestinians during the conflict. Goldman has since broadened the scope to cover potential abuses on both sides, and UN Secretary General Ban Ki-Moon [official website] said Wednesday that he hopes both sides cooperate [UN News Centre report] with the investigation. Goldman is due to deliver a report on his findings to the UN Human Rights Council [official website] by August 4.

Israel originally said in April it would not comply with the investigation after criticizing its mandate [JURIST reports] earlier that month. The probe was a result of a report [text, PDF; JURIST report] authored by UN Special Rapporteur Richard Falk [appointment release] that criticized Israel for failing to take adequate precautions to distinguish between civilians and combatants in their offensives in the region. Both Israel and the US condemned [JURIST report] the report as biased.

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

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