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Legal news from Friday, August 14, 2009




Israel Gaza operation violated international law, Palestinian rights: UN report
Matt Glenn on August 14, 2009 10:18 PM ET

[JURIST] Israel's treatment of Palestinians during December and January's Operation Cast Lead [GlobalSecurity backgrounder], in Gaza [JURIST news archive] grossly violated international law according to a report [text, PDF] released Friday by the office of UN High Commissioner for Human Rights Navi Pillay [official profile]. The report, prepared by the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories, noted estimates of Israel causing 1,2000-1,400 civilian deaths during the conflict, citing incidents in which the Israel Defense Forces (IDF) [official website] are alleged to have killed civilians who had surrendered [JURIST report], and described Israel's use of white phosphorous [GlobalSecurity backgrounder] in densely populated areas. Among the report's recommendations were that Israel end the Gaza blockade, that independent investigators look into Israel's actions during the conflict as well as other alleged human rights violations, and that Israel cease to expand its settlements. The UN requested the study in a January resolution [JURIST report] condemning the offensive.

Last month, the IDF announced [JURIST report] that it was conducting criminal investigations into alleged intentional misconduct by Israeli soldiers during December and January's fighting in the Gaza strip. The IDF said it was investigating [report, PDF] 13 allegations against IDF personnel, including the use of civilians as human shields. Israel and the US condemned [DOS briefing] a February report [text, PDF; JURIST report] that criticized Israel for failing to take adequate precautions to distinguish between civilians and combatants. In April, an internal Israeli military investigation found that war crimes had not been committed [JURIST report] in the offensive.






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Canada court affirms order mandating Khadr repatriation efforts
Ingrid Burke on August 14, 2009 3:18 PM ET

[JURIST] The Canadian Federal Court of Appeal [official website] upheld [judgment, PDF] Friday a lower court's ruling [judgment, PDF; JURIST report] ordering the Canadian government to advocate for the repatriation of Canadian Guantanamo detainee Omar Khadr [DOD materials; JURIST news archive]. The government appealed the April ruling asserting that the lower court erred in holding that Canadian officials violated Khadr's rights to "life, liberty, and security" under Section 7 of the Canadian Charter of Rights and Freedoms (Charter) [text]. At issue was the conduct of the Canadian Security Intelligence Service (CSIS) and the Department of Foreign Affairs and International Trade (DFAIT) [official websites] in interviewing [JURIST report] Khadr in 2003 while he was in custody at Guantanamo Bay, and in providing the US Government with recordings of those interviews afterward. The appeals court held that the Canadian officials failed to protect Khadr's rights by assisting the US Government despite their knowledge that Khadr had been subjected to treatment repugnant to Section 7 of the Charter as well as a number of other domestic and international human rights laws and conventions:


the principles of fundamental justice do not permit the questioning of a prisoner to obtain information after he has been subjected to cruel and abusive treatment to induce him to talk. That must be so whether the abuse was inflicted by the questioner, or by some other person with the questioner’s knowledge. Canada cannot avoid responsibility for its participation in the process at the Guantánamo Bay prison by relying on the fact that Mr. Khadr was mistreated by officials of the United States, because Canadian officials knew of the abuse when they conducted the interviews, and sought to take advantage of it.

A spokesperson for the Foreign Ministry said they will review [BBC report] the court's decision. An appeal to the Supreme Court [official website] is still possible.

The Security Intelligence Review Committee (SIRC) [official website] criticized the conduct of CSIS last month for failing to consider Khadr's age and human rights issues regarding alleged mistreatment by US authorities during the 2003 Guantanamo interviews. Also last month, Khadr reaffirmed his previous request [JURIST report] to have his US military lawyers dismissed from his case [AP report] for arguing and disagreeing among themselves. Khadr told the judge that he did not trust the military lawyers or their office. Khadr has allegedly admitted to throwing a hand grenade that killed a US soldier in Afghanistan, and was charged [JURIST reports] in April 2007 with murder, attempted murder, conspiracy, providing material support for terrorism, and spying.





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Lockerbie bomber seeks to drop second appeal
Andrew Morgan on August 14, 2009 3:13 PM ET

[JURIST] Convicted Pan Am Flight 103 [BBC backgrounder] bomber Abdelbaset Ali Mohmed Al Megrahi [BBC backgrounder] on Friday asked the Scottish High Court of the Judiciary [official website] to allow him to withdraw the second appeal [Reuters report] of his 2001 conviction. Megrahi, recently diagnosed with terminal prostate cancer, is seeking a transfer [BBC report] to his native Libya, a process that cannot be completed while legal actions are pending. Libya had petitioned the Scottish government to transfer Megrahi in May, as part of a prisoner transfer agreement with the UK. Speculation that Justice Secretary Kenny MacAskill [official profile] would honor an August request that Megrahi be released on "compassionate grounds" to serve the remainder of his minimum 27 year sentence in Libya prompted criticism [transcript] from US Secretary of State Hillary Rodham Clinton [official website], Syracuse University [press release] and families of the victims [Independent report]. The Scottish Government urged restraint [Times report], saying that MacAskill had not yet made a decision on the matter.

In November, the High Court denied [JURIST report] Megrahi's request to be released on bail during the appeals process. Lawyers for al-Megrahi, a former Libyan intelligence officer, were denied access in March 2008 to a "missing document," that they had sought [JURIST reports] in appealing his conviction. The Scottish Criminal Cases Review Commission (SCCRC) [official website] granted an appeal [JURIST report] in al-Megrahi's case in June 2007 and referred it the High Court after the commission identified six grounds [press release, PDF] for a possible "miscarriage of justice" in his trial and conviction. In 2003, Libya made its final compensation payment [JURIST report] to a US fund for victims' families in November 2008 after agreeing to accept responsibility [US DOS press release] for the 1988 airline bombing that killed all 259 on board [victims website], including 180 Americans.






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ICC orders conditional release of Congo rebel leader Bemba
Jaclyn Belczyk on August 14, 2009 2:58 PM ET

[JURIST] The International Criminal Court (ICC) [official website] on Friday ordered the conditional release [text, PDF; press release] of former Democratic Republic of Congo (DCR) [BBC backgrounder] rebel leader Jean Pierre Bemba [ICC materials; JURIST news archive], a decision which Chief Prosecutor Luis Moreno-Ocampo [official profile] announced he would appeal [press release]. The court found no evidence to suggest that Bemba would pose a danger, interfere with court proceedings, or fail to appear for trial. Bemba's defense counsel welcomed [recorded video] the court's ruling, but his release will be delayed indefinitely, as states that have been identified as potential hosts for Bemba have expressed concern about his presence. The prosecution is set to present arguments against his release on August 24.

Last month, the ICC ordered Bemba to stand trial [JURIST report] for the alleged commission of violent war crimes. The prosecution contends that Bemba's actions in the Central African Republic (CAR) [BBC backgrounder] as military leader of the Congo Liberation Movement (MLC) [party website, in French] from October 2002 to May 2003 amount to war crimes and crimes against humanity. Bemba was arrested [JURIST report] in Belgium after the ICC issued a warrant for his arrest in May 2008 for his actions in the CAR. He was indicted on charges of war crimes and crimes against humanity and transferred [JURIST report] to the ICC in July 2008. The proceedings against Bemba were initially postponed, but the pre-trial hearing [JURIST reports] to determine what charges the rebel leader is to face commenced in January. Bemba was elected to the Congolese Senate after losing a run-off presidential election [JURIST report] to Joseph Kabila [BBC profile], who, in December 2006, became the first freely-elected president of the DRC since 1960. After the election, Bemba's private militia force led a violent campaign against government troops until the DRC Supreme Court rejected his election challenge [JURIST report].






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Australia court allows quadriplegic patient to refuse feeding tube in 'right to die' case
Andrew Morgan on August 14, 2009 2:05 PM ET

[JURIST] The Supreme Court of Western Australia [official website] on Friday ruled [judgment, PDF] that the right to refuse medical treatment includes the informed refusal of nutrition and hydration services, in a landmark decision. Christian Rossiter, a quadriplegic, had repeatedly asked [ABC report] his caregivers, Brightwater Care Group [corporate website], to discontinue providing nutrition and water through a gastric feeding tube so that he would starve to death. Brightwater feared that discontinuing treatment would be a breach of their duty to care for Rossiter, and would expose them to criminal liability regardless of his instructions. Under existing Australian law, patients had a right to refuse lifesaving medical treatment, but helping someone to commit suicide could result in criminal penalties. Emphasizing that the case was "not about euthanasia," "the right to life or even the right to death," Chief Justice Wayne Martin said that statutory and common law supported allowing a mentally competent patient to refuse treatment after being informed of the consequences.


[It] seems to me to be absolutely clear that, after he has been provided with full information with respect to the consequences of any decision he might make, Mr. Rossiter has the right to determine and direct the extent of the continuing treatment he receives, in the sense that treatment cannot and should not be administered against his wishes. If, after the provision of full advice, he repeats his direction to Brightwater that they discontinue the provision of nutrition and hydration to him, Brightwater is under a legal obligation to comply with that direction.

Phillip Nitschke, director of voluntary euthanasia advocacy group Exit International [advocacy website], with which Rossiter is affiliated, called the decision [press release] a "victory for common sense."

The right to die has been a highly contentious issue around the world. Last month, the UK Law Lords [official website] asked the Director of Public Prosecutions to clarify [JURIST report] the UK's laws regarding those who aid patients seeking assisted suicide. Many Britons have reportedly gone to the Dignitas clinic [website, in German] in Switzerland to obtain assisted suicides. The House of Lords in July rejected a bill that would would have barred prosecuting those who go abroad to help others commit assisted suicide. Last year, UK Prime Minister Gordon Brown [official website] spoke out against laws allowing assisted suicide [BBC report], saying that he would not create laws that "put pressure on people to end their lives." Also last year, Luxembourg came close to passing a bill [JURIST report] to legalize assisted suicide but the measure was not approved by monarch Grand Duke Henri. Henri's veto prompted the Luxembourg Chamber of Deputies to amend the constitution [JURIST report] to eliminate the requirement that the Grand Duke approve of all legislation. In 2006, the House of Lords set aside a bill to legalize assisted suicide following opposition by physician groups [JURIST reports]. Euthanasia was legalized in the Netherlands [BBC report] in 2001, and Belgium followed suit [JURIST report] in 2002.





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Amended Afghanistan personal status law still restricts women's rights: HRW
Jaclyn Belczyk on August 14, 2009 1:56 PM ET

[JURIST] Afghanistan's amended Shi'ite personal status law [Reuters backgrounder], which entered into force July 27, still violates [press release] women's rights, Human Rights Watch (HRW) [advocacy website] said Thursday. The Afghan government announced last month that the law had been revised [JURIST report] to remove a provision requiring a wife to submit to sex with her husband after intense international criticism. HRW reports, however, that many of the law's provisions still restrict women's rights:


many regressive articles remain, which strip away women's rights that are enshrined in Afghanistan's constitution. The law gives a husband the right to withdraw basic maintenance from his wife, including food, if she refuses to obey his sexual demands. It grants guardianship of children exclusively to their fathers and grandfathers. It requires women to get permission from their husbands to work. It also effectively allows a rapist to avoid prosecution by paying "blood money" to a girl who was injured when he raped her.

HRW urged the Afghan parliament to overturn the law immediately.

The Afghan law, which only applies to the country's Shi'a population, elicited strong reactions from outside and within the country. In April, Afghan President Hamid Karzai [BBC profile] pledged to amend the original law [JURIST report] to align it with international human rights standards, reportedly claiming to have not realized its effects [Reuters report] due to the law's length and theological language. Karzai submitted the law to the Ministry of Justice [JURIST report] for review after suspending it and promising revisions. Key Shi’ite cleric Mohammad Asif Mohsseni defended the law [JURIST report], chastising Western critics for interfering with Afghan democracy. Following Mohsseni's endorsement and prior to Karzai's promise to revise the law, Afghan women protesters were attacked [JURIST report] by conservative Muslims while staging demonstrations and had to be rescued by police forces. US President Barack Obama [official profile] called the law "abhorrent," saying that respect for women and their freedom is an important principle [transcript text] that all nations should uphold. Karzai's decision to sign the law [JURIST report] was one of several actions that Karzai has been criticized for since his appointment as Afghanistan's interim president in 2002.





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UN rights experts urge Iran court to reject confessions obtained through torture
Jaclyn Belczyk on August 14, 2009 11:52 AM ET

[JURIST] Three UN human rights experts on Thursday called on Iran's Revolutionary Court to reject confessions obtained through torture [press release] of protesters of the country's disputed presidential election [JURIST news archive]. A joint statement from Special Rapporteur on torture Manfred Nowak, Vice-Chairperson of the Working Group on arbitrary detention El Hadji Malick Sow, and Special Rapporteur on the situation of human rights defenders Margaret Sekaggya [official websites] said that the UN continues to receive reports of torture and people dying in custody in the wake of the contested re-election of President Mahmoud Ahmadinejad [BBC profile; JURIST news archive]. Nowak said, "[n]o judicial system can consider as valid a confession obtained as a result of harsh interrogations or under torture." Sow added, "[t]hese confessions for alleged crimes such as threats against national security and treason must not, under any circumstances, be admitted as evidence by the Revolutionary Court."

Last week, Iran's Prosecutor General Ghorban Ali Dorri Najafabadi acknowledged [JURIST report] that some protesters arrested after the election were tortured. Earlier this month, more than 100 protesters were put on trial [JURIST report] in proceedings closed to the media. In early July, Human Rights Watch (HRW) [advocacy website] reported that some arrested protesters were beaten, deprived of sleep, and threatened with torture in an effort to force false confessions [JURIST report]. The same week, opposition leaders called for the release of those detained for their alleged involvement in the protests. The request was brought jointly by opposition candidates Mir Hossein Mousavi [IranTracker profile; JURIST news archive] and Mehdi Karroubi along with former president Mohammad Khatami, who also called for an immediate stop to the allegedly baseless arrests of dissidents. Human rights groups have called arrests 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."






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Burundi urged to punish perpetrators of human rights violations during civil war
Jaclyn Belczyk on August 14, 2009 11:04 AM ET

[JURIST] Human Rights Watch (HRW) [advocacy website] on Thursday urged the government of Burundi [JURIST news archive] to hold accountable those responsible for human rights violations [press release] during the country's 16-year armed conflict. HRW released the statement on the fifth anniversary of the Gatumba Massacre [HRW backgrounder], in which more than 150 Congolese refugees were killed by members of the rebel National Liberation Forces (FNL) [GlobalSecurity backgrounder]. HRW said:


The conflict, which ended in 2009, was characterized by widespread and systematic violations of international humanitarian and human rights law by all warring factions, including murder, rape, and torture. The government has failed to carry out any meaningful investigations or prosecutions for these serious crimes, and has stalled on commitments to establish a truth and reconciliation commission and a special tribunal to prosecute crimes committed during the conflict.

HRW called upon the Burundian government to take immediate action to bring the perpetrators from all sides of the conflict to justice.

Burundi is still recovering from the 16-year civil war [GlobalSecurity backgrounder] between the Hutu majority and the dominant Tutsi minority, which began in 1993 and claimed more than 300,000 victims. Current Burundian President Pierre Nkurunziza [BBC profile], an ex-Hutu rebel leader, born-again Christian, and member of the National Council for the Defense of Democracy-Forces for the Defense of Democracy (NCDD-FDD) [GlobalSecurity backgrounder], was elected in 2005 after the implementation of a UN-created peace plan, but his presidency has been marred by accusations of assassinations and torture [JURIST report]. In November, the Burundian parliament voted in favor of laws abolishing the death penalty and criminalizing homosexuality [JURIST report] in the country. The elimination of the death penalty in Burundi was a requirement for establishing a UN-led truth and reconciliation committee and tribunal in the country, but rights groups have strongly condemned [JURIST reports] the criminalization of homosexuality. In October, a Burundi military court sentenced a colonel to death [JURIST report] for his role in the killings of 31 civilians in the country's Muyinga province in 2006.





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EU imposes sanctions on Myanmar judges involved in Suu Kyi verdict
Jaclyn Belczyk on August 14, 2009 9:43 AM ET

[JURIST] The Council of the European Union [official website] on Thursday announced sanctions [press release, PDF] against members of the Myanmar judiciary responsible for the verdict [JURIST report] against opposition pro-democracy advocate Aung San Suu Kyi [BBC profile; JURIST news archive]. The latest sanctions are in addition to a number of sanctions already in place against Myanmar. According to the press release from the 27 member states:


Under the new restrictive measures, members of the judiciary responsible for the verdict are added to the existing list of persons and entities subject to a travel ban and to an assets freeze. Moreover, the list of persons and entities subject to the restrictive measures is extended to cover the assets freeze to enterprises that are owned and controlled by members of the regime in Burma/Myanmar or by persons or entities associated with them.

An EU spokesperson said that state-owned media [NYT report] and 58 other enterprises would also be subject to sanctions. Also Thursday, the UN Security Council [official website] voiced "serious concern" [UN News Centre report] over the verdict and sentence.

Earlier this week, Suu Kyi and American John Yettaw were convicted of violating state security laws after Suu Kyi, who was under house arrest, allowed Yettaw to stay in her home after he swam across a lake to visit her. Suu Kyi was sentenced to 18 more months of house arrest, and Yettaw was sentenced to seven years in prison, with four years of hard labor. Lawyers for both parties have indicated that they plan to appeal [JURIST report]. The verdict has been widely criticized by world leaders and human rights groups, with many calling for her immediate release. Suu Kyi, a prominent human rights activist, has spent 12 of the past 18 years in prison or under house arrest for alleged violations of an anti-subversion law [text, PDF].





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EXTRA ~ Ex-president Clinton discusses health care, gay rights at Netroots
Abigail Salisbury on August 14, 2009 9:22 AM ET

[JURIST] Former US president William Jefferson Clinton [official profile] addressed a capacity crowd late Thursday night at a progressive convention held by Netroots Nation [advocacy group] in Pittsburgh, Pennsylvania. Since leaving office, Clinton has become known for his charitable and humanitarian work [foundation website], and on Thursday he discussed the evolution of "communitarian solutions" to world problems, devoting a large portion of his speech to healthcare reform legislation, which he said affects 16 percent of the nation's economy. He asserted that Hillary Clinton's healthcare proposal [Economist report], submitted to Congress during his administration, has been unfairly maligned over the past decade as a massive unworkable document "breaking the backs of federal statutes," when it actually "reduced the number of pages of federal law devoted to healthcare." He accused the insurance companies of "rewrit[ing] history" to alter the public's view of the legislation.

Taking a jab at the vehement disruptions in the recent series of town hall meetings [Oakland Tribune report] focused on President Barack Obama's healthcare plan [official materials], Clinton smiled as he emphasized that providing assistance with the preparation of a living will is "not the same as inviting people to die." More somber when discussing the legislation's meaning for his party, he stressed that it is "politically imperative for the Democrats to pass a health care bill" and stated that the bill's opponents would be silenced when all went well with the program a year after its implementation.

Early in Clinton's speech, a blogger jumped up and interrupted [Huffington Post report] the proceedings by yelling at the former president and criticizing him for the "Don't Ask Don't Tell" [TIME backgrounder] policy for gay military personnel, which was implemented during his administration. Clinton responded by sternly reprimanding the man, charging that "you couldn't deliver me [the] support in Congress" necessary to permit gays and lesbians to serve openly. He expressed his distaste for the policy, saying that the party imbalance in Congress forced his hand in the matter, and added that he hopes the policy will be replaced [CNN report] now that the numbers are more favorable. Another comment from the audience prompted Clinton to briefly discuss the Defense of Marriage Act (DOMA) [text], also passed during his administration. DOMA defined the term "marriage" as being "only a legal union between one man and one woman as husband and wife," and declared:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."
He stated that DOMA was "an attempt to head off a Constitutional Amendment to ban gay marriage," adding, "I didn't like signing DOMA ... and I think we're going forward in the right direction." Near the end of his speech, Clinton's tone was more cheerful and he mentioned the issue again, commenting, "I liked it that that fella challenged me on Don't Ask Don't Tell. I didn't like it either!"

Clinton spent the end of his talk on climate change, touching briefly on the importance of meeting the greenhouse gas emissions objectives of the Kyoto Protocol [UNFCC materials]. The US is a non-binding symbolic signatory of the agreement, and Clinton stressed that the US must have meaningful legislation in the area. He alluded to the upcoming Climate Change Conference [official website] to be held in December, stating, "we will never get China and India ... to end the Copenhagen process unless we get a bill." Clinton expressed his excitement and satisfaction at the popularity of the "Cash for Clunkers" (CARS) [official website] program, which provides a monetary incentive for consumers to trade in their older, less gas-efficient vehicles and purchase new models. He stated:
Cash for Clunkers has worked great. We ought to put that on steroids when we can sell electric cars!
Clinton concluded his speech by saying that he often reads blogs, but told the bloggers in the room not to assume that their readers' level of knowledge on these issues is as high as their own. He said that he hopes to see more blog posts with concrete instructions and recommendations for lawmakers and the general public, so that they can be moved to action more readily. The former president did not take any questions at the end of his speech.





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Rights group accuses Israel soldiers of killing unarmed civilians in Gaza conflict
Benjamin Hackman on August 14, 2009 8:42 AM ET

[JURIST] Israeli soldiers killed 11 white flag-waving Palestinian civilians in Gaza during Operation Cast Lead [GlobalSecurity backgrounder], which left more than 1,000 civilians and combatants dead in December 2008 and January 2009, according to a Human Rights Watch (HRW) [advocacy website] report [text, PDF; press release] released Thursday. According to the report, the unarmed victims were waving white flags to indicate they were not combatants and should not have been attacked under the laws of war. The report also suggests that Israeli soldiers may have failed to distinguish between civilians and combatants. The Israel Defense Forces (IDF) [official website] said HRW’s report was based on unreliable witnesses [press release]. HRW called on Israel’s military to investigate the attacks.

Last month, IDF announced [JURIST report] they were conducting criminal investigations into alleged intentional misconduct by Israeli soldiers during December and January's fighting in the Gaza strip. IDF said it was investigating [report, PDF] 13 allegations against IDF personnel, including the use of civilians as human shields. Israel and the US condemned [DOS briefing] a February report [text, PDF; JURIST report] that criticized Israel for failing to take adequate precautions to distinguish between civilians and combatants. In April, an internal Israeli military investigation found that war crimes had not been committed [JURIST report] in the offensive.






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US officials tour Michigan prison that could house Guantanamo detainees
Matt Glenn on August 14, 2009 7:56 AM ET

[JURIST] Federal and state officials toured a prison in rural Michigan Thursday in anticipation that it could eventually hold inmates [JURIST report] currently detained at Guantanamo Bay [JURIST news archive]. Officials have not yet decided [Detroit Free Press report] whether the Standish Maximum Correctional Facility (SMF) [official website] will one day house some of the 229 Guantanamo detainees. Michigan officials are also considering using the SMF to hold out-of-state inmates with overcrowded prisons when SMF closes on October 1. Many local residents prefer [Detroit News report] the latter option, not wanting to have Guantanamo detainees nearby. The US Penitentiary in Leavensworth, Kansas [official website] appears to be the other leading candidate [Miami Herald Report] to house the detainees when the government closes Guantanamo Bay. Also this week, federal officials said that terrorism trials for some inmates could be held at a new high-security courthouse in Newport News, VA [Washington Post report] if the Obama administration sends cases to federal courts [JURIST report].

The Obama administration faces sharp opposition from members of Congress over plans to transfer Guantanamo detainees to US soil. In late July, US Defense Department General Counsel Jeh Charles Johnson and Assistant Attorney General for National Security David Kris [official profile], both members of task force appointed by Obama to oversee the closing of Guantanamo, testified [JURIST report] in front of the House Armed Services Committee [official website] that the Obama administration is considering transferring more Guantanamo Bay detainees to the US as they urged Congress to pass proposed reforms to the Military Commissions Act of 2006 [text, PDF; JURIST news archive] and detainee policy. In May, the US House of Representatives passed a spending bill [HR 2847 materials] that denied [JURIST report] the Obama administration's request for $60 million to close the Guantanamo Bay detention center and placed limits on the government's ability to transfer detainees to the US and release detainees to foreign countries. Also in May, the Senate passed an amendment [JURIST report] to a piece of legislation that eliminates $80 million intended to be used for the closure of Guantanamo until the president provides a "comprehensive, responsible plan" detailing how it will be done.






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