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Legal news from Monday, July 27, 2009




SEC makes rule banning 'naked' short selling permanent
Devin Montgomery on July 27, 2009 3:55 PM ET

[JURIST] The US Securities and Exchange Commission (SEC) [official website] on Monday made permanent [rule, PDF; press release] a temporary ban on the so-called 'naked' short selling of stocks. In a normal short sale, a trader borrows and sells a stock, promising to buy it back at a certain price in the future, but in a "naked" short sale, the trader doesn't actually borrow the stock before selling it. In its release announcing the retention of the rule, the SEC said that allowing the practice often left traders in a position where they could not deliver the stock, which would artificially drive down its value. It said that these so-called "failures to deliver" were down over 75 percent since the implementation of the temporary rule [SEC backgrounder]. The SEC also said that it would seek to increase transparency concerning the legitimate short selling of stocks in an effort to bolster investor confidence.

The announcement comes as the US considers a number of new measures to stabilize markets in light of the recent downturn. Last week, the Obama administration sent Congress draft legislation [materials; JURIST report] that would put the Federal Reserve [official website] in charge of regulating the largest financial firms [text, PDF], having proposed similar changes [JURIST report] in June. In March, US Treasury Secretary Timothy Geithner [official profile] indicated that the Department of the Treasury would propose stronger rules [JURIST report] in response to the current economic crisis. Geithner suggested that the Reserve and Treasury be given broader powers. In February, Geithner emphasized increasing restrictions on financial institutions [JURIST report] receiving government assistance.






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Yemen officials urge stronger gun-control, security laws
Christian Ehret on July 27, 2009 2:42 PM ET

[JURIST] Yemeni officials called on their parliament [official website, in Arabic] Monday to strengthen security and gun-control laws in an effort to end unrest and kidnappings and to improve the country's economy. Citing concerns with national unity, tourism and economic strains, Deputy Prime Minister Rshad al-Alimi urged the parliament [Reuters report] to criminalize unlicensed weapons and the public bearing of arms as well as limit the number of bodyguards allowed and increase penalties for kidnappers and armed attackers. The Yemeni House of Representatives on Monday considered these laws [press release, in Arabic] and others in an effort to improve economic and social development. The discussion of the new laws was prompted by a recent increase in al Qaeda attacks, rebellion by northern Shi'ite Muslims, and kidnappings of Western tourists and workers for government ransom.

Northern rebels have been the cause of much Yemeni unrest. In June, Yemen sentenced [JURIST report] 14 accused Zayidi Shi'ite rebels, among them outspoken Yemeni journalist Abdel Karim al-Khaywani [advocacy profile], for their roles in an ongoing Shi'ite uprising. All but one of those arrested received prison sentences of up to ten years, with the last rebel receiving the death sentence for plotting attacks on Yemeni military bases. Last year, Human Rights Watch (HRW) [advocacy website] alleged that Yemeni security forces had unlawfully detained hundreds of individuals [JURIST report] since 2004 as part of its campaign against the rebels, finding that government forces arrested innocent individuals in order to pressure families to surrender and to silence journalists.






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Senator Sessions opposes Sotomayor confirmation
Christian Ehret on July 27, 2009 1:08 PM ET

[JURIST] Ranking Republican on the US Senate Judiciary Committee [official website] Jeff Sessions (R-AL) [official website] opposed the confirmation of Supreme Court nominee Sonia Sotomayor [WH profile] on Monday, maintaining that she lacks "deep-rooted convictions" [USA Today editorial] needed to resist judicial activism. Although Sessions conceded that Sotomayor will likely be confirmed, he wrote that liberals "might find it a Pyrrhic victory." Referring to statements made by the nominee before the committee, Sessions claimed that she dismissed her prior statements about the role that personal experience plays in judicial decision-making in an attempt to "rebrand" her previously stated approach. Sessions questioned her testimony, saying:


Why not defend the philosophy she had articulated so carefully over the years? Because the American people overwhelmingly reject the notion that unelected judges should set policy or allow their social, moral, or political views to influence the outcome of cases. Rather, the public wants and expects restrained courts, tethered to the Constitution, and judges who impartially apply the law to the facts. In the end, her testimony served as a repudiation of judicial activism.

Sessions criticized Sotomayor's stance on employment discrimination, eminent domain, and the incorporation of the Second Amendment, saying that her decisions on these issues were "contrary to the Constitution," and "short on analysis."

Sotomayor's confirmation hearing took place earlier this month. Last week, the committee delayed a vote to send her nomination for consideration by the full Senate, rescheduling for July 28. Earlier this month, the American Bar Association Standing Committee on the Federal Judiciary [association website] gave Sotomayor a unanimous "well-qualified" rating [letter, PDF; JURIST report]. In May, Sessions said that he did not anticipate a filibuster [JURIST report] against Sotomayor's nomination. Obama nominated Sotomayor in May to replace retiring [JURIST reports] Justice David Souter [official profile, PDF; JURIST news archive].





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Suu Kyi prosecution delivers closing arguments in Myanmar trial
Christian Ehret on July 27, 2009 11:32 AM ET

[JURIST] Myanmar prosecutors on Monday delivered final arguments in the trial against opposition pro-democracy advocate Aung San Suu Kyi [BBC profile; JURIST news archive], after being granted additional time to prepare. The Nobel Laureate and National League of Democracy (NLD) [party website] leader faces charges of violating her house arrest for allowing an American to stay after he swam across a lake to visit her. Suu Kyi's lawyer U Nyan Win plans to respond [NYT report] to the prosecution's arguments on Tuesday. No date has been set for the verdict. Also on Monday, Amnesty International [advocacy website] announced Suu Kyi as the 2009 recipient [press release] of their "Ambassador of Conscience" award, marking the 20-year anniversary of her arrest for alleged violations of an anti-subversion law [text]. The award recognizes "exceptional leadership and witness" in the protection and promotion of human rights.

Suu Kyi's trial has elicited condemnation and criticism [JURIST report] from the international community. Following a delay in the proceedings, the trial resumed earlier this month with the testimony of an NLD party member who claimed that the charges were politically motivated. Myanmar officials say they plans to release political prisoners [JURIST report] to allow them to participate in the 2010 general elections although it remains unclear whether Suu Kyi will be among those released.

7/28/09: The verdict is scheduled to be delivered Friday.






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India court convicts three in 2003 Mumbai bombing
Devin Montgomery on July 27, 2009 10:52 AM ET

[JURIST] A special Indian terrorism court on Monday found Ashrat Ansari, Hanif Sayed Anees, and Fehmida Sayed guilty of planning and carrying out a 2003 bomb attack in Mumbai [BBC backgrounder] that killed 52 people. They were convicted [PTI report] of conspiracy, murder, and attempt to murder under the country's 2002 Prevention of Terrorism Act [text] and other laws, and are suspected of belonging to the Lashkar-e-Taiba (LeT) [CFR backgrounder] terrorist group. Sentencing for the three is scheduled for August 4, and prosecutors have said they plan to seek the the death penalty.

Mumbai has suffered a number of terrorist attacks allegedly linked to the LeT in recent years, leading the government to consider controversial terrorism laws and institute special courts [JURIST reports] to try suspects. Earlier this month, India announced that it would continue the trial [JURIST report] of a man suspected in a 2008 Mumbai hotels attack [BBC backgrounder; JURIST news archive] that killed more than 100 people despite his earlier admission of guilt [JURIST report]. Also this month, Pakistan began the trial [JURIST report] of five other men with possible ties to the 2008 attack. In 2006, authorities charged 30 people [JURIST report] for their connections to Mumbai train bombings [JURIST news archive] that occurred that year, after a lengthy investigation and the arrest of hundreds [JURIST reports].






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Russia authorities release alleged mob leader wanted by US
Devin Montgomery on July 27, 2009 9:44 AM ET

[JURIST] Russian police on Monday released suspected organized crime leader Semyon Mogilevich [FBI profile] after a court found that prosecutors lacked sufficient evidence to continue holding him. Mogilevich and another man, Vladimir Nekrasov, were arrested [JURIST report] in January 2008. The court ordered their release [RIA Novosti report], citing the length of time that they had already been detained and the relatively minor charges against them. Mogilevich is also wanted in the US [FBI profile] on unrelated charges for allegedly manipulating the stock of YBM Magnex International, and is suspected of involvement in more serious crimes including arms dealing and drug trafficking. The court subjected Mogilevich to a travel ban, and prosecutors have said they plan to re-file charges against him [Reuters report] later in the week.

Mogilevich and two others were indicted [press release, PDF] on US federal charges in 2003. They face 45 counts of racketeering, securities fraud, wire fraud, mail fraud and money laundering charges. It is unlikely that Mogilevich will ever stand trial on the US charges, as the US and Russia do not have an extradition treaty.






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Microsoft offers 'browser ballot' to resolve European antitrust allegations
Abigail Salisbury on July 27, 2009 8:46 AM ET

[JURIST] Microsoft announced [materials] on Friday that it will offer European consumers an option to select from a list of several Web browsers "in an effort to address competition law issues related to Internet Explorer and interoperability." The European Commission (EC) welcomed [press release] Microsoft's "ballot screen" [Reuters report] proposal, adding that it "will now investigate its practical effectiveness in terms of ensuring genuine consumer choice." Last month, the EC had expressed concern [press release] that merely offering Internet Explorer separately from Windows would not resolve all of the alleged antitrust violations.

Microsoft has faced many legal challenges based on antitrust and unfair competition allegations. In June, a South Korean court ruled [JURIST report] that the corporation violated antitrust laws by packaging software with the Windows operating system, but dismissed requests for damages from two Korean software firms on the grounds that the damages were not sufficiently linked to Microsoft's conduct. In February, Google [corporate website] sought to join the EC's suit against Microsoft, alleging that the bundling of software violated an EC Treaty provision [Article 82 text] that prohibits the abuse of a dominant market position. In 2004, an EC action [materials; JURIST report] required the company to unbundle its media player and to share technical information with competitors and lower its prices, but Microsoft failed to comply with the judgment and the EC assessed a record fine [JURIST report] of €899 million ($1.3 billion). In May 2008, Microsoft filed an appeal [JURIST report] with the European Court of First Instance [official website], seeking to annul the fine.






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Rights groups hold Iran election protests in more than 100 cities worldwide
Ximena Marinero on July 27, 2009 8:37 AM ET

[JURIST] Protesters in more than 100 cities [list] gathered Saturday to show opposition to the alleged Iranian human and civil rights violations which followed the nation's controversial presidential election [JURIST news archive]. The Global Day of Action [official website] was organized by United for Iran, a coalition made up of Amnesty International, Human Rights Watch, and Nobel Women's Initiative [advocacy websites] and sought:


1. That the international community uphold the Iranian people’s human rights as a matter of international concern, and that the UN Secretary General should immediately appoint a delegation to travel to Iran to investigate the fate of prisoners as well as disappeared persons;
2. The immediate and unconditional release of all political prisoners and prisoners of conscience, including journalists, students, and civil society activists;
3. An end to state-sponsored violence, and accountability for crimes committed; and
4. Freedom of assembly, freedom of expression, and freedom of press as guaranteed by the Iranian constitution and Iran’s obligations under international covenants that it has signed.

Iran has been experiencing political unrest since President Mahmoud Ahmadinejad [BBC profile; JURIST news archive] declared his victory in June. Amnesty International estimates [detainee list] that hundreds and possibly thousands of peaceful protesters have been arrested by Iranian authorities. Earlier this month, Human Rights Watch reported [text; JURIST report] that some arrested protesters were beaten, deprived of sleep and threatened with torture in an effort to force false confessions. The number of deaths during post-election protests in Tehran exceeds government reports [press release; JURIST news report], according to the International Campaign for Human Rights in Iran (ICHRI) [advocacy website].





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Returning US soldiers' alleged crimes due to combat stress: report
Christian Ehret on July 27, 2009 8:24 AM ET

[JURIST] Crimes committed by US soldiers after returning from Iraq were caused by a lack of discipline combined with combat stress and substance abuse, according to a Colorado Springs Gazette report [text] released Friday. Ten infantry soldiers from a Fort Carson, Colorado military unit have been accused of murder, attempted murder, or manslaughter in the US since returning home from combat. These homicide charges and other crimes committed by Fort Carson soldiers have resulted in a sharp increase in military bookings at the El Paso County jail. The report alleges that, after being deployed to dangerous areas of Iraq, soldiers abandoned their training and were not properly disciplined for their actions. Some soldiers from the unit have reported the use of stun guns during raids, which is considered a war crime and is prohibited by the Geneva Conventions [materials], as well as the arbitrary killings of Iraqi civilians in what one called a "free-for-all." According to the report, emotional problems arising out of combat stress were ignored after some of the accused soldiers returned home. Although the Fort Carson soldiers were screened for post-traumatic stress disorder upon returning, many soldiers claimed that they lied about their experiences to "get it over with."

The news report follows the recent release of an Army report [text, PDF] on the Fort Carson homicides. The report found that stress, mental health issues, and substance abuse of returned soldiers were not properly addressed. The official report states that the accused soldiers were at risk for violent behavior due to several risk factors including a large number of deaths in their unit and extensive exposure to combat. However, the report concluded that the presence of such risk factors alone "[does] not entirely explain the clustering of crime" in the unit. In May, a UN report [text, PDF; JURIST report] found that the US failed to adequately prevent and prosecute war crimes and other disciplinary problems during its operations in Iraq and Afghanistan. The report pointed to "chronic and deplorable accountability failures" that resulted in alleged unlawful killings by US forces. The UN also found that senior officers were not held responsible for the actions of lower-ranking soldiers under the doctrine of command responsibility.






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