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Legal news from Tuesday, July 28, 2009

US immigration detention centers violate rights: advocacy group
Devin Montgomery on July 28, 2009 3:15 PM ET

[JURIST] US detention centers for illegal immigrants have failed to meet basic standards [press release] for the treatment of those held at the facilities, according to a report [text, PDF] released Tuesday by the National Immigration Law Center [advocacy website] and two other groups. The groups said that immigrants being held in the US are often denied adequate visitation, telephone, recreation, legal information access, and grievance rights. It also said that the institutions failed to follow standards for detainee transfer, holding, and discipline procedures. The groups said that by denying immigrants these rights, the Immigration and Customs Enforcement (ICE) [official website] agency has failed to observe rules set out in its Detention Management Control Program Manual [text]:

There is no question that the nation's immigrant detention system is broken to its core. The findings in this report, as well as those recently documented by various government and independent agencies, reveal pervasive and extreme violations of the government's own detention standards as well as fundamental violations of basic human rights and notions of dignity. Simply by making detention standards enforceable and putting resources into enforcing them, both Congress and the administration could take concrete steps to ensure that no immigrant in the custody of the federal government is held in a facility that cannot or refuses to comply with these minimum requirements. More fundamentally, given the documented abuses in the nation's immigrant detention system, the federal government should halt the system's further expansion and make increased use of humane alternatives to detention.

The group called on the government to institute standards for the treatment of immigrants that have the force of law, to apply these standards to not only facilities operated by ICE but also those under the control of other agencies, and to increase mechanisms for internal reviews and transparency.

Since its creation in 2003, ICE has been criticized for many of the methods it uses to capture and detain illegal immigrants. Earlier this month, the Immigration Justice Clinic [academic website] at the Cardozo School of Law released a report [text, PDF; JURIST report] saying that immigration agents have committed numerous constitutional violations during raids on immigrants' homes. In February, the clinic reported that ICE documents [text, PDF] obtained under the Freedom of Information Act (FOIA) [5 USC § 552 text; JURIST news archive] show that Bush administration immigration enforcement tactics were both overly-aggressive and ineffective [JURIST report]. Earlier this month, the US Department of Homeland Security [official website] announced changes to immigration policies [press release; JURIST report] for state and local agencies. The new policies create uniform standards for local agencies that will require them to pursue all criminal charges leading to an immigrant's arrest prior to initiating removal proceedings.

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Rights group urges revision of Nicaragua absolute abortion ban
Devin Montgomery on July 28, 2009 2:11 PM ET

[JURIST] Amnesty International [advocacy website] on Monday called on Nicaragua to end its total ban on abortions [report, PDF; press release], saying that the lack of an exception for the mother's health has caused numerous deaths. AI also called for the country to eliminate severe criminal punishments for those who seek or perform abortions, saying that the penalties would often prevent women from receiving even non-abortion medical care. It also called for an exception allowing abortions in the cases of rape or incest. The group said that ban forces obstetricians to choose between medically necessary procedures and the law, and that it violates the UN Convention Against Torture, International Covenant on Civil and Political Rights [texts] and other treaties signed by the country:

Amnesty International considers the complete ban on abortion to be a serious breach of Nicaragua’s obligations to protect, respect and fulfil the human rights of women and girls both under its own Constitution and international treaties to which it is a party. The revision of the penal code is a retrogressive measure under international law and places Nicaragua at odds with proven public health policy.

Laws which have serious implications for the right to health and life of women and girls should be based on medical evidence and public health experience. It is clear that these laws are not. Women human rights defenders have been subjected to legal harassment and accused of the public defence of a crime (apología del delito) for campaigning for therapeutic abortion. This legal harassment has caused some fear on the part of others, such as doctors and nurses, and discouraged them from becoming too actively involved in campaigning on the issue. This has further stifled informed public debate and discussion around the implications of the law.

The absolute ban on abortions ban was first passed in 2006, when it was signed into law after being passed [JURIST reports] by the country's parliament. Abortion has long been illegal in Nicaragua, but the law eliminated a longstanding exception for the health of the mother.

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Senate committee recommends Sotomayor for Supreme Court
Devin Montgomery on July 28, 2009 1:02 PM ET

[JURIST] The US Senate Judiciary Committee [official website] on Tuesday voted 13-6 to recommend the confirmation [hearing materials] of Sonia Sotomayor [WH profile; JURIST news archive] for the Supreme Court [official website]. All 12 Democrats on the committee and one Republican voted in favor of the recommendation. In a statement [text] praising Sotomayor, committee chairman Patrick Leahy (D-VT) [official website] applauded her experience and dismissed allegations of prejudice:

Judge Sotomayor is well qualified; one need look no further than her experience, ability, temperament and judgment. The President nominated a person with more Federal judicial experience than any nominee in the last 100 years. He nominated someone with Federal trial judge experience and someone who was a prosecutor.

As her record and her testimony before the Committee reinforced, she is a restrained, fair and impartial judge who applies the law to the facts to decide cases. Ironically, the few decisions for which she has been criticized are cases in which she did not reach out to change the law or defy judicial precedent – in other words, cases in which she refused to "make law" from the bench.
In his statement [text], Senator Orrin Hatch (R-UT) [official website] explained his vote against Sotomayor, saying he still thought she brought bias and a judicial philosophy he opposed to the court:
Let me emphasize that I like Judge Sotomayor and believe she is a good person. I would like to be able to support her nomination. I believe, however, that a nominee’s approach to judging is more important than her resume, especially on the Supreme Court where Justices operate with the fewest constraints. Each nominee comes to the Senate with her own record, and it is that record that we must examine for clues about her judicial philosophy. Judge Sotomayor’s speeches and articles outline a troubling judicial philosophy which her appeals court cases, hearing testimony, and answers to post-hearing written questions do not neutralize.
The full Senate is scheduled to debate Sotomayor's nomination next week.

Support for Sotomayor in the Senate has approximated party lines with Jeff Sessions (R-AL) [official website] saying he would vote against her [JURIST report] on Monday. Last week, the committee delayed the vote [JURIST report] to send her nomination for consideration by the full Senate. 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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Hollywood companies file suit against Pirate Bay file-sharing site
Christian Ehret on July 28, 2009 11:32 AM ET

[JURIST] Several Hollywood production companies filed suit Monday in Sweden against the operators of the file-sharing site The Pirate Bay [website], seeking an injunction. The US companies, including Disney, Universal, and Columbia Pictures, filed a writ to sue [The Local report] in the Stockholm District Court, requesting that the court order the owners to cease and desist the operation of their BitTorrent [backgrounder] website. In April, the website operators were sentenced to one year in prison for abetting copyright infringement [judgment, PDF, in Swedish; JURIST report]. Moniique Wadsted, who is representing the film companies, characterized the defendant's disregard for their April conviction as "unusual" and stated that the companies are not currently seeking any fines. Global Gaming Factory (GGF) [corporate website] is in the process of purchasing the website to operate it in a way that conforms with the law, which, according to Wadsted, is welcomed by the film companies. The Pirate Bay posts complaints and their responses on the website and maintains that no torrent files will ever be removed [materials]. Dutch anti-piracy group Bescherming Rechten Entertainment Industrie Nederland (BREIN) also recently filed suit against the website on behalf of copyright owners although The Pirate Bay responded with a defamation lawsuit [press release] against BREIN for criminal accusations made during a press conference.

Last week, the French National Assembly [official website] voted to delay a vote [JURIST report] on a new version of a controversial Internet piracy law. The French law originally subjected copyright violators to suspension of Internet access at the discretion of an administrative authority but the provision was rejected [JURIST report] by the country's Constitutional Council. In April, the Swedish Intellectual Property Rights Enforcement Directive (IPRED) went into effect, which resulted in a 33 percent decrease [BBC report] in Internet traffic. The law was based on similar legislation [text, PDF] passed by the EU and allows copyright holders to force internet service providers into providing information about users. Before the Swedish law was passed, copyright holders had no recourse [Wired report] in the country aside from reporting the alleged infringement to the police who were often reluctant to pursue the complaints.

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Rights group suing UK over rendition of suspected terrorist
Devin Montgomery on July 28, 2009 11:14 AM ET

[JURIST] Human rights group Reprieve [advocacy website] announced Tuesday that it is suing the British government [filing letter, PDF; press release] over the rendition of Mohammed Saad Iqbal Madni [advocacy profile] from Indonesia to Egypt, where it says he was tortured. The group alleges that the UK allowed the US rendition flight of Madni to stop on the British island territory of Diego Garcia [GlobalSecurity backgrounder], despite government claims that the island was not part of the US's rendition program [JURIST news archive]. Reprieve seeks disclosure from both the UK and Diego Garcia governments of all information on Madni's treatment and Deigo Garcia's involvement in US renditions of terrorism suspects. It said the information was necessary for Madni to seek monetary damages from the government for what Reprieve said was the UK's complicity in his abuse.

After being held in Egypt, Madni was transferred to Guantanamo Bay [JURIST news archive] and held there until September 2008 when he was released back to his home country of Pakistan. Shortly after his release, Pakistani Ambassador to the US Husain Haqqani [official profile] sought the release [JURIST report] of all Pakistani detainees held at the base, so that the country's courts could handle the detainees. Later that month, a Pakistani delegation was denied access [JURIST report] to detainees held at Guantanamo. Madni does not face any charges in the US or Pakistan.

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Sexual violence being used as weapon in conflict-torn nations: UN SG
Christian Ehret on July 28, 2009 10:22 AM ET

[JURIST] UN Secretary-General Ban Ki-moon [official website] on Monday called for African, Asian and European countries to strengthen prevention and protection measures [UN News Centre report] against the use of sexual violence in armed conflicts. Ban's position was outlined in a report [text, PDF] released earlier this month, which stated that such violence has been systematically used in modern conflicts and is a "direct violation of international humanitarian, human rights and criminal law." The violence, which is primarily against women, is allegedly being used in furtherance of military, political, social, and economic objectives. Ban referred to instances of this problem occurring in the Democratic Republic of the Congo, the Sudan, Chad, Nepal, and other conflict-torn regions. The report claims that case law from international criminal tribunals for Rwanda (ICTR), the former Yugoslavia (ICTY), and Sierra Leone (SCSR) [official websites] allows sexual violence to be considered a crime against humanity if it is part of a widespread or systematic attack against a civilian population. The ICTR has recognized sexual violence as a form of genocide since it is a "step in the process of group destruction." Ban proposed that nations experiencing conflict should adopt measures that ensure punishment for offenders, eliminate amnesties and immunities for perpetrators of such crimes, and address inequalities and discrimination against women.

Earlier this month, the ICTR sentenced former Rwandan Armed Forces Colonel Tharcisse Renzaho [case materials] to life imprisonment [JURIST report] for genocide and crimes against humanity, finding that he encouraged the sexual abuse of women and other crimes during the 1994 Rwandan genocide [BBC backgrounder]. In June, Human Rights Watch (HRW) [advocacy website] reported that Kenyan troops tortured, raped, and committed other human rights violations [JURIST report] during an operation in the country's northeastern Mandera Triangle region.

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Iran releases 140 detained in post-election violence
Devin Montgomery on July 28, 2009 10:03 AM ET

[JURIST] An Iranian official announced Tuesday the release of approximately 140 people detained during violent protests following the controversial reelection [JURIST news archive] of President Mahmoud Ahmadinejad [BBC profile; JURIST news archive]. Human Rights Watch [advocacy website] has reported that some arrested protesters were beaten, deprived of sleep, and threatened with torture in an effort to force false confessions [report text; JURIST report]. An official for the country's judiciary has also said that it plans to decide soon whether to release or try approximately 500 detainees that remain in prison after being arrested during the protests. On Monday, Iran's Supreme Leader Ayatollah Ali Khamenei [official website] ordered the closure of the country's Kahrizak prison, in the wake of reported abuses and deaths at the prison.

Earlier this month, opposition leaders called for the release [JURIST report] of those detained for their alleged involvement in the protests. Also this month, the International Campaign for Human Rights in Iran (ICHRI) [advocacy website] reported that the number of deaths that occurred at the protests exceeded government reports [press release; JURIST report]. Human rights groups have viewed the arrests as political repression [JURIST report], saying that Iranian forces are using the protests to "engage in what appears to be a major purge of reform-oriented individuals." Despite the controversy, the country's Guardian Council of the Constitution [official website, in Persian] recently certified the contested results [JURIST report], officially sanctioning the re-election of Ahmadinejad.

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Pfizer finalizes settlement with Nigeria state in drug testing lawsuit
Devin Montgomery on July 28, 2009 9:25 AM ET

[JURIST] Drug maker Pfizer [corporate website] finalized a settlement Monday with the Nigerian state of Kano in a lawsuit over allegedly illegal clinical trials the company conducted in Nigeria in 1996. The Kano government had filed a lawsuit [BBC backgrounder] against Pfizer in 2007, accusing the company of administering meningitis medication to 200 Nigerian children, including 100 with the then-experimental antibiotic Trovan [FDA backgrounder], without the authorization of the government or the consent of the patients' guardians. They also alleged that the testing killed 11 children and incapacitated 181 others, demanding a total of $2.75 billion in damages. Pfizer has consistently denied the allegations [statement of defense, PDF], and has said that the company's actions were both ethical and beneficial [press release]. The drug maker is expected to pay a total of $75 million to settle the claim, and the two sides plan to sign the settlement on Thursday.

Kano and Pfizer reached a tentative agreement in the case in April, after Pfizer expressed hope in October that a settlement could be reached after ongoing negotiations [JURIST reports] in the case. In 2007, a Nigerian court rejected a request by Pfizer [JURIST report] to dismiss the Nigerian government's lawsuit on technical grounds. Also last year, criminal court proceedings against Pfizer were suspended [JURIST report] at the request of prosecutors, who asked for more time to prepare for trial.

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Senate committee to hold hearings on 'Don't Ask, Don't Tell'
Jay Carmella on July 28, 2009 8:40 AM ET

[JURIST] The US Senate Armed Services Committee [official website] announced [press release] Monday that it will hold hearings this fall to review the US military's "Don't Ask, Don't Tell" policy [10 USC § 654 text; HRC backgrounder]. Under the policy, openly gay servicemen and women are subject to discharge from the US military. Committee member Senator Kirsten Gillibrand (D-NY) [official website] commented:

This policy is wrong for our national security and wrong for the moral foundation upon which our country was founded. I thank Chairman Levin for agreeing to hold this important hearing. Numerous military leaders are telling us that the times have changed. "Don't Ask, Don't Tell" is an unfair, outdated measure that violates the civil rights of some of our bravest, most heroic men and women. By repealing this policy, we will increase America's strength - both militarily and morally.

It is estimated that nearly 13,000 servicemen and women have been discharged since the policy's initiation in 1993. Gillibrand estimated [CBS News report] that the US military has spent more than $95 million replacing these individuals.

Last month, the US Supreme Court [official website] denied certiorari [JURIST report] to review the "Don't Ask, Don't Tell" policy. In November 2008, more than 100 retired admirals and generals of the US military called for a repeal [JURIST report] of the "Don't Ask, Don't Tell" policy. In June 2008, he US Court of Appeals for the First Circuit upheld [JURIST report] "Don't Ask, Don't Tell." The First Circuit's decision stands in stark contrast to a May 2008 ruling by the US Court of Appeals for the Ninth Circuit, which held [JURIST report] that a soldier could not be dismissed on the basis of sexual orientation alone.

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Eleventh Circuit denies FedEx employees class certification
Jay Carmella on July 28, 2009 7:41 AM ET

[JURIST] The US Court of Appeals for the Eleventh Circuit [official website] on Monday denied [opinion, PDF] FedEx Corporation [official website] employees suing over compensation the ability to gain class classification. The court's decision affirmed a decision by the US District Court for the Southern District of Florida [official website] that the claims rested too heavily on factual information that was unique to individual members of the suit. The court wrote:

The district court concluded that certification was improper primarily because individualized factual inquiries into whether and how long each employee worked without compensation would swamp any issues that were common to the class. The sole question before this Court is whether the district court abused its discretion in declining to certify the class. We hold that the district court acted within the bounds of its discretion and affirm its decision.

The employees' suit brought claims of breach of contract and unjust enrichment. The employees alleged that FedEx had failed to pay certain non-exempt employees for all work hours worked.

Various FedEx divisions have faced a considerable number of lawsuits from employees in recent years. In 2008, the US Supreme Court [official website] ruled [JURIST report] that a group of former and current employees met the requirements for filing an age discrimination lawsuit against the company under the Age Discrimination in Employment Act (ADEA) [text]. The unique employment status of the drivers of the Ground and Home Delivery divisions of the company has created considerable backlash. Through various lawsuits [advocacy website] across the country, individuals have attempted to have the courts force FedEx to categorize these individuals as employees rather than independent contractors.

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

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