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Legal news from Monday, July 13, 2009

Sotomayor highlights 'fidelity to the law' in confirmation hearing
Andrew Morgan on July 13, 2009 2:48 PM ET

[JURIST] US Supreme Court [official website] nominee Sonia Sotomayor [WH profile; JURIST news archive] on Monday told the Senate Judiciary Committee [official website] during confirmation hearings [materials; video] that she would bring to the Court a judicial philosophy rooted in "fidelity to the law." During her opening statement, Sotomayor emphasized the "different perspectives" she gained on the law as a prosecutor, a corporate attorney, and a judge, saying that her experience has allowed her to "witness[] the human consequences of my decisions." Addressing criticism that her speeches and decisions show a record of racial bias and "judicial activism," Sotomayor said that her "decisions have been made not to serve the interests of any one litigant":

The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our justice system. My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.

Sotomayor's confirmation hearing began Monday, with the Senators on the committee making opening statements [JURIST report] of their own. Committee chairman Senator Patrick Leahy (D-VT) [official website] said [text] that Sotomayor "is a careful and restrained judge with a deep respect for judicial precedent and for the powers of the other branches of the government, including the law-making role of Congress." Senator Jon Kyl (R-AZ) [official website] likewise recognized Sotomayor's experience in his own remarks [text], but said that "she appears to believe that her role is not constrained to objectively decide who wins based on the weight of the law, but who, in her opinion, should win."

Last week, the American Bar Association Standing Committee on the Federal Judiciary [official website] gave Sotomayor a unanimous "well-qualified" rating [letter, PDF; JURIST report]. In May, Obama praised [JURIST report] Sotomayor's experience and wisdom, rebuking Republicans who would oppose her confirmation. Obama warned against partisanship in the confirmation process, saying that he hoped Congress would "avoid the political posturing and ideological brinksmanship" that marked past confirmation hearings. Obama nominated Sotomayor in May to replace retiring [JURIST reports] Justice David Souter [official profile, PDF; JURIST news archive].

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Myanmar to release political prisoners to participate in 2010 elections
Christian Ehret on July 13, 2009 1:55 PM ET

[JURIST] Myanmar is processing grants of amnesty [press release; recorded video, RealPlayer] to prisoners to allow them to participate in the 2010 general elections, ambassador U Than Swe told the UN Security Council [official website] on Monday. Additionally, Swe maintained that the country intended to implement other recommendations proposed by UN Secretary-General Ban Ki-Moon [official profile; JURIST news archive]. The Security Council meeting followed Ban's visit to Myanmar earlier this month to address "several serious and long-standing concerns." During his visit, Ban met with head of state Senior General Than Shwe and Prime Minister General Thein Sein to discuss issues that could undermine the country's political process and to make recommendations including the release of political prisoners such as Aung San Suu Kyi [BBC profile; JURIST news archive], resumption of talks between government and opposition officials and creating conditions for legitimate elections next year. The Secretary-General discussed his visit to the country and the need for fair elections:

My visit offered the clearest signal of the United Nations’ commitment to work with the Government and people of Myanmar to address issues that are of fundamental importance for the prospects of durable peace, democracy and development. ... I have made clear my expectation and that of the international community that the Government needs to deliver on the promise to make the 2010 elections inclusive, free and fair, and to take necessary steps on my specific proposals in the very near future.
Swe told the Council that Ban's visit was successful and that the government would cooperate with the UN's requests. Although the government did not arrange a requested meeting between Ban and Aung San Suu Kyi, Swe explained that Senior General Than Shwe was willing to allow such a meeting but that the court had independent jurisdiction over the matter.

Myanmar's political tension is exemplified by the recent trial of Nobel Laureate Aung San Suu Kyi. The pro-democracy advocate faces charges of violating the terms of her house arrest for allowing an American to stay with her after he swam across a lake to visit. Her arrest was controversial and highly criticized [JURIST report] by the international community. She has spent 12 of the past 18 years in prison or under house arrest for alleged violations of an anti-subversion law [text, PDF]. After many delays, Suu Kyi's trial resumed last week [JURIST report] with new witness testimony. It is unclear whether Suu Kyi will be among the prisoners released to participate in the elections. Last month, a Myanmar court sentenced two members of the National League of Democracy [party website] to 18 months in prison after convicting them of insulting religion by leading prayers for Suu Kyi's release.

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Senators split on Sotomayor judicial record as confirmaton hearings begin
Devin Montgomery on July 13, 2009 1:19 PM ET

[JURIST] The US Senate Judiciary Committee [official website] began confirmation hearings [materials; video] Monday for Supreme Court [official website] Associate Justice nominee Sonia Sotomayor [WH profile], with Democratic and Republican senators offered contrasting interpretations of Sotomayor's judicial record and philosophy. In his opening remarks [text], committee chairman Senator Patrick Leahy (D-VT) cast Sotomayor as having extensive judicial experience and a moderate legal philosophy:

My review of her judicial record leads me to conclude that she is a careful and restrained judge with a deep respect for judicial precedent and for the powers of the other branches of the government, including the law-making role of Congress. That conclusion is supported by a number of independent studies that have been made of her record, and shines through in a comprehensive review of her tough and fair record on criminal cases. She has a deep understanding of the real lives of Americans, the duty of law enforcement to help keep Americans safe, and the responsibilities of all to respect the freedoms that define America.

Unfortunately, some have sought to twist her words and her record and to engage in partisan political attacks. Ideological pressure groups have attacked her before the President had even made his selection. They then stepped up their attacks by threatening Republican Senators who do not oppose her.

In truth, we do not have to speculate about what kind of a Justice she will be because we have seen the kind of judge she has been. She is a judge in which all Americans can have confidence. She has been a judge for all Americans and will be a Justice for all Americans.
Senator Jon Kyl (R-AZ) likewise recognized Sotomayor's experience in his own remarks [text], but expressed concern about statements that Sotomayor has made about the importance of her background and international legal approaches to her legal reasoning:
With a background that creates a prima facie case for confirmation, the primary question I believe Judge Sotomayor must address in this hearing is her understanding of the role of an appellate judge. From what she has said, she appears to believe that her role is not constrained to objectively decide who wins based on the weight of the law, but who, in her opinion, should win. The factors that will influence her decisions apparently include her 'gender and Latina heritage' and foreign legal concepts that get her 'creative juices going.'

...What is the traditional basis for judging in America? For 220 years, presidents and the Senate have focused on appointing and confirming judges and justices who are committed to putting aside their biases and prejudices and applying law to fairly and impartially resolve disputes between parties.
A vote on Sotomayor's confirmation is scheduled [JURIST report] for August 6.

Last week, the American Bar Association Standing Committee on the Federal Judiciary [official website] gave Sotomayor a unanimous "well-qualified" rating [letter, PDF; JURIST report]. Sotomayor detailed her prior judgments, financial status, potential conflicts of interest and various other details of her past in a questionnaire she filed with the Judiciary Committee [JURIST report] in June . President Barack Obama has praised [JURIST report] Sotomayor's experience and wisdom, rebuking Republicans who would oppose her confirmation and warning against partisanship in the confirmation process, saying that he hoped Congress would "avoid the political posturing and ideological brinksmanship" that marked past confirmation hearings. Following Obama's May nomination of Sotomayor, Senator Jeff Sessions, the committee's top Republican, said that he did not anticipate a filibuster [JURIST reports] against the nominee.

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Uganda to arrest al-Bashir under ICC warrant if he enters country
Christian Ehret on July 13, 2009 12:30 PM ET

[JURIST] Ugandan officials announced Monday that they plan to arrest Sudanese president Omar al-Bashir [BBC profile; JURIST news archive] on war crimes charges if he enters the country, pursuant to an International Criminal Court (ICC) [official website] warrant [JURIST news archive]. The announcement followed a meeting [AP report] between Ugandan minister for international affairs Henry Oryem Okello and ICC chief prosecutor Luis Moreno Ocampo. The decision reflects a recommendation made by an African Union [official website] panel last week that AU countries cooperate with the warrant, contrary to a prior vote by the full AU to oppose the warrant [JURIST reports]. Although AU leaders claim that the warrant poses a threat [JURIST report] to Sudan's peace process, Ocampo maintains that Bashir's arrest is a legal obligation for the 30 AU countries that are parties to the Rome Statute [text].

Al-Bashir is accused of leading the systematic harassment and murder of members of the Fur, Masalit, and Zaghawa ethnic groups under the pretext of counter-insurgency since 2003. Prosecutors at the ICC announced last month that they would pursue genocide charges against Bashir, appealing the ICC's March decision to charge al-Bashir [JURIST reports] with war crimes and crimes against humanity but not genocide. Ocampo had long sought the warrant and, in July 2008, filed preliminary charges stemming from crimes allegedly committed in the Darfur region in violation of Articles 6, 7 and 9 of the Rome Statute.

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Accused Nigeria rebel leader given amnesty in treason case
Andrew Morgan on July 13, 2009 12:25 PM ET

[JURIST] Accused Nigerian rebel leader Henry Okah was released on Monday after the government dropped treason and gun trafficking charges against him. The government alleges that Okah is the leader of the rebel group Movement for the Emancipation of Niger Delta (MEND) [BBC backgrounder], which has been conducting armed attacks against oil production facilities in the delta. Nigerian President Umaru Yar'Adua [BBC profile] agreed to grant unconditional pardon to MEND members that laid down their arms as part of a June amnesty agreement [Daily Independent report] intended to lead to a cessation of hostilities. Also on Monday, MEND claimed responsibility [VOA report] for an attack on an oil transfer dock in Lagos, its first attack outside of the Niger Delta region and a sign that some MEND members do not plan to accept amnesty [BBC report].

In April 2008, Okah was formally charged [JURIST report] with treason in a closed court hearing after a secret February extradition. He was arrested in Angola in September 2007 after attempting to buy weapons and explosives. MEND has attacked [BBC backgrounder] pipelines, refineries and oil workers in an attempt to force changes in the distribution of wealth generated by Nigeria's petroleum industry.

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Liberia ex-president Taylor begins defense against war crimes charges
Christian Ehret on July 13, 2009 11:22 AM ET

[JURIST] Former Liberian president Charles Taylor [JURIST news archive] began his defense [case materials] Monday against war crimes charges [indictment, PDF] that include 11 counts of crimes against humanity, violations of the Geneva Conventions, and other violations of international humanitarian law. Taylor's trial continues in the Special Court for Sierra Leone (SCSL) [official website] after the court denied his motion for acquittal [JURIST report] in May. Prosecutors told the court last week that the trial could take up to four additional years [JURIST report] due to the number of defense witnesses. Taylor's counsel defended the list of 256 witnesses by pointing out that the prosecution originally named more than 200 witnesses without intending to call all of them. The prosecution rested their case in February 2009 after presenting testimony from 91 witnesses.

The Taylor prosecution has been led by Stephen Rapp [official profile], who was nominated [JURIST report] last week as Ambassador at Large for War Crimes Issues by US President Barack Obama [official profile]. Rapp told the media in February that the court was considering releasing Taylor [JURIST report] due to a lack of funds, echoing his previous concerns about the case that prompted Human Rights Watch [advocacy website] to urge donors to contribute to the court [JURIST report] for the purposes of finishing the trial. Following complaints of prejudice in 2007, the SCSL increased [JURIST reports] Taylor's defense funding to $100,000 a month. Although Taylor claims to be indigent, a five-member UN investigatory panel found in June 2007 that he retains control over millions of dollars [JURIST report] hidden in African banks. The trial is being held in The Hague, Netherlands, due to security concerns in Sierra Leone.

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ICJ rules Costa Rica has right to commercial navigation of San Juan River
Andrew Morgan on July 13, 2009 11:12 AM ET

[JURIST] The International Court of Justice (ICJ) [official website] ruled [judgment, PDF] Monday that Nicaragua has interfered with Costa Rica's right of free navigation on the San Juan river, which separates the two Central American nations. Costa Rica filed a complaint [case materials] in the ICJ in 2005, arguing that although Nicaragua has sovereignty over the river, that country was impeding free navigation in violation of Article VI of the 1858 Treaty of Limits by requiring visas for passengers aboard Costa Rican ships, requiring that ships stop at Nicaraguan posts, and preventing Costa Rican police from using the river to re-supply river posts. The ICJ found that the treaty did establish Costa Rica's right to free navigation for "commercial purposes," and that "commerce" meant both cargo and transportation. Accordingly, said the court, visa requirements would give Nicaragua undue control over a Costa Rican right, and could not be exercised consistent with the treaty. Similarly, the court rejected Costa Rica's argument that its free navigation of the river gave its ships the freedom to dock at the Nicaragua bank without coming under Nicaraguan control. Recognizing Nicaragua's sovereignty over the river, the court found that passport and identification requirements were not an impediment to Costa Rica's use of the river. Further, the court found that official Costa Rican vehicles, including police boats, are not covered under "commercial purposes," though should be allowed when performing services necessary to the river region's inhabitants.

The ICJ heard oral arguments [press release] in the case in March. The court is also currently considering a maritime boundary dispute between Peru and Chile [ICJ materials; JURIST report] and recently decided a maritime case between Malaysia and Singapore [ICJ materials; JURIST report].

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Germany prosecutors file charges against alleged Nazi guard
Christian Ehret on July 13, 2009 9:57 AM ET

[JURIST] German prosecutors on Monday filed charges [press release, in German] against alleged Nazi war criminal John Demjanjuk [NNDB profile; JURIST news archive] for being an accessory to murder during World War II. Demjanjuk faces 27,900 accessory counts stemming from his alleged involvement as a guard at the Sobibor [Death Camps backgrounder] concentration camp where more than 260,000 people were executed in gas chambers. The official charges follow a recent determination by German prison medical experts that the elderly Demjanjuk is fit to stand trial. The former Ohio resident was deported in May by the US after exhausting his appeals for a stay and having his objections to extradition rejected [JURIST reports] by a German court. It has been alleged that Demjanjuk volunteered to work at Sobibor [Abendzeitung report, in German] after being captured by German forces while serving a member of the Soviet army.

Demjanjuk's deportation marked the end of a lengthy legal battle [AP timeline] centered around whether his age and health would permit him to stand trial. Prior to his deportation, German prosecutors filed charges [JURIST report] against him in March, alleging 29,000 accessory counts. In 2008, the US Supreme Court [official website] denied certiorari in Demjanjuk v. Mukasey [order, PDF; JURIST report], ending the appeals process for a prior deportation order. Demjanjuk was appealing a 2005 ruling [JURIST report] by then-US Chief Immigration Judge Michael Creppy which ordered his deportation. Demjanjuk had previously lost his appeal to the BIA. In 1988, Demjanjuk was convicted and sentenced to death by an Israeli court, though the sentence was vacated by the Israeli Supreme Court in 1993.

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Iraq antiquities law central to preventing more damage to Babylon: UNESCO
Andrew Morgan on July 13, 2009 9:15 AM ET

[JURIST] The United Nations Educational, Scientific and Cultural Organization (UNESCO) [official website] has urged adherence to Iraqi antiquities law in a report on damage to the ancient city of Babylon before and since the US-led invasion of Iraq in 2003. A committee composed of Iraqi and international archaeologists said in a report [text, PDF] issued Thursday that adherence to the law regarding the excavation, transportation, and sale of Iraqi artifacts is necessary to preventing further damage to the site, use of which as a coalition military base had caused direct and indirect damage. Although UNESCO called the military use a "grave encroachment" on the site, Mohamed Djelid, director of UNESCO’s Office for Iraq [official website] said that the committee's goal was to catalog the damage, not to assign blame [press release]. The report also noted damage done to the site prior to the invasion, including the construction of palaces and restaurants by Saddam Hussein [JURIST news archive], looting of the site after Multi-National Force-Iraq [official website] turned the site over to Iraqi control, and the moving of significant artifacts to European museums by early archaeologists.

Control and use of the site and its artifacts has been controversial. The Iraqi central antiquities office's focus on preserving and excavating ancient Babylon has been at odds [AP report] with the local provincial government's desire to bolster tourism. Many of the city's most recognizable artifacts have long been removed, including the stone tablets on which Hammurabi's Code [museum website, in French] is inscribed, and the Ishtar Gate [backgrounder] of King Nebuchadnezzar II, installed in European museums since the early twentieth century.

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US immigration authorities announce changes to local enforcement policies
Christian Ehret on July 13, 2009 8:28 AM ET

[JURIST] The US Department of Homeland Security (DHS) [official website] on Friday announced changes to immigration enforcement policies [press release] for state and local agencies. Created by the US Immigration and Customs Enforcement (ICE) [official website] agency, the changes affect agreements made between DHS Secretary Janet Napolitano [official profile] and state and local law enforcement agencies, allowing those agencies to perform immigration enforcement tasks with criminal aliens. Such partnerships are allowed under § 287(g) of the Immigration and Nationality Act [text]. The new polices create uniform standards for agencies that will require them to pursue all criminal charges leading to an immigrant's arrest and prioritizes cases of immigrants accused of major drug offenses or violent crimes. The changes address concerns that police may arrest immigrants for minor offenses "as a guise to initiate removal proceedings." Napolitano said that the new agreement "supports local efforts to protect public safety by giving law enforcement the tools to identify and remove dangerous criminal aliens." ICE official John Morton [official profile] called the partnership program "essential," maintaining that it allows the ICE "to better utilize the resources and capabilities" of agencies across the nation. Government investigators found that old partnership agreements were unclear [AP report] and exemplified misguided Bush administration policy.

Friday's announcement is the latest in a series of Obama administration immigration reforms. Earlier this month, ICE issued inspection notices [JURIST report] to 652 businesses as part of an increased effort to target employers using illegal immigrants. Last month, Attorney General Eric Holder [official profile] vacated [order, PDF; JURIST report] an order [text, PDF] by former attorney general Michael Mukasey [JURIST news archive] that denied potential deportees the right to challenge immigration decisions based on ineffective assistance of counsel claims. In March, Napolitano and other officials proposed an overhaul [press release] of US immigration policy. In February, Napolitano called for a review [JURIST report] of workplace raids conducted by ICE agents. ICE has arrested [JURIST report] many non-criminal illegal immigrants in the past year, many of whom were imprisoned [JURIST report].

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

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