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Legal news from Friday, August 21, 2009

China bans petitioners traveling to capital to file legal complaints
Jaclyn Belczyk on August 21, 2009 4:04 PM ET

[JURIST] The Chinese government has banned people from traveling to the capital of Beijing to file legal complaints. The ban [BBC report], issued Tuesday, prevents the common practice in which petitioners travel to the capital to seek redress for a variety of legal problems. Under the new regulations, Chinese authorities will send representatives [China Daily report] to provinces that produce many petitioners, and petitioners will also be able to file complaints online. Chinese authorities said that anyone using the appeals process to make financial gain, damage social order, or incite mass incidents would be punished [Xinhua report]. Tuesday's ban comes as Chinese officials called this week for judicial reforms to improve the country's legal system and speed up delays [CCTV reports] in the court system.

Many human rights activists fear that a ban on traveling to Beijing to file petitions is the latest in a series of moves designed to quash dissidence as the 60th anniversary of Communist rule approaches this October. Earlier this week, prominent Chinese human rights lawyer Xu Zhiyong was charged with tax evasion after officials shut down [JURIST reports] the legal research center of his Gongmeng human rights group. Last month, the Chinese government suspended the licenses of 53 lawyers [press release, in Chinese] in Beijing, including prominent human rights lawyer Jiang Tianyong, for failing to pass an assessment or failing to register. In June, Chinese authorities charged prominent rights activist Liu Xiaobo [JURIST report] with "inciting subversion of state power" [PRC Criminal Law article 105, PDF]. Liu, who spent two years in prison following the Tiananmen Square [BBC backgrounder] uprising, has long challenged China's one-party rule, and co-authored Charter 08 [text], a petition calling for political reforms in the country.

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US officials criticize Lockerbie bomber release
Jaclyn Belczyk on August 21, 2009 2:38 PM ET

[JURIST] US officials on Thursday sharply criticized Scotland's decision to release [JURIST report] convicted Pan Am Flight 103 [BBC backgrounder] bomber Abdelbaset Ali Mohmed Al Megrahi [BBC profile]. Megrahi was recently diagnosed with terminal prostate cancer was released Thursday to his native Libya on compassionate grounds by Scottish Justice Secretary Kenny MacAskill [official profile]. US Attorney General Eric Holder [official profile] said [press release] that he is "extremely disappointed" with the decision, adding that "[t]he interests of justice have not been served. FBI Director Robert Mueller [official profile] also expressed [press release] deep disappointment. Secretary of State Hillary Clinton [official profile] said [press release]:

The United States is deeply disappointed by the decision of the Scottish Executive to release Abdel Basset Mohamed al-Megrahi who was convicted and sentenced to life in prison for his part in the bombing of Pan Am Flight 103, which took the lives of 270 persons, including 189 Americans. We have continued to communicate our long-standing position to UK government officials and Scottish authorities that Megrahi should serve out the entirety of his sentence in Scotland. Today, we remember those whose lives were lost on December 21, 1988 and we extend our deepest sympathies to the families who live each day with the loss of their loved ones due to this heinous crime.

US officials had strongly opposed Megrahi's release. On Monday, seven US Senators, including Ted Kennedy (D-MA), John Kerry (D-MA) and Charles Schumer (D-NY) [official websites], sent a letter [text, PDF] to MacAskill urging him not to agree to Megrahi's release or transfer, joining last week's criticism [transcript] from Clinton. In November, the High Court denied [JURIST report] Megrahi's request to be released on bail during the appeals process. Lawyers for 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 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.

8/22/09: Mueller sent a letter [text] to MacAskill Friday calling Megrahi's release "a mockery of the rule of law."

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Federal judge partially upholds South Dakota abortion informed consent law
Amelia Mathias on August 21, 2009 1:59 PM ET

[JURIST] A judge in the US District Court for the District of South Dakota [official website] issued a ruling [opinion, PDF] Thursday clarifying what doctors in South Dakota are required to tell women seeking an abortion before performing the procedure, partially upholding a state law. Judge Karen Schreier upheld a provision of a South Dakota abortion law [text] that requires doctors to tell women that an abortion terminates a real, unique human life, but not that abortion increases the risks of suicide and depression. Schreier also struck down a provision that required doctors to say that the woman has an existing relationship with the human life. The ruling years after the informed consent law was passed [JURIST report] in 2005. Schreier originally struck down [JURIST report] the law, but was overruled by the US Court of Appeals for the Eight Circuit. Both Planned Parenthood [advocacy website], which represented the plaintiffs, and the state are claiming to have won the case, and neither has decided to appeal yet.

Controversy on abortion laws has also continued in other states. Also this week, an Oklahoma state court judge ruled [JURIST report] that a state law [SB 1878, DOC] requiring women seeking an abortion to have an ultrasound within an hour of the procedure violates the Oklahoma Constitution [text]. Earlier this month, the Illinois Department of Finance and Professional Regulation (DFPR) [official website] granted doctors a 90-day grace period [JURIST report] for enforcement of the state's parental notification requirement for minors obtaining abortions, a law which one scholar has called "unnecessary" and "dangerous" [JURIST op-ed]. That announcement followed a decision [JURIST report] last month by the US Court of Appeals for the Seventh Circuit that reversed a district court injunction [JURIST report] barring the law's enforcement. In June 2007, the governor of New Hampshire signed a repeal of the state's parental notification law [JURIST report], which never took effect. In 2006, voters in Oregon and California rejected statutes that would have required notification [JURIST report], although those measures allowed minors to request a judge to bypass the requirement.

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Michigan town residents oppose Guantanamo detainees in local prison
Amelia Mathias on August 21, 2009 12:58 PM ET

[JURIST] Residents of Standish, Michigan, held a town meeting Thursday to protest the possible transfer of Guantanamo Bay [JURIST news archive] detainees to the state prison in the town. The town meeting was organized by local citizens and centered around a panel featuring speakers [AP report], including the sister of a pilot who was killed on 9/11 [JURIST news archive]. While a few citizens expressed fear of detainees escaping, most are frightened of the reputation their town would gain as the home of such prisoners and the possibility that Standish would become a target for terrorist attacks. The town hall meeting took place a week after governmental officials visited the Standish state prison [JURIST report], which is scheduled to be closed [Lansing State Journal report], to determine whether it would be suitable for holding the several hundred Guantanamo detainees who are unable to be freed after the closing of the prison in 2010.

Earlier this week, the Obama administration announced its intent to transfer six detainees [JURIST report] overseas. The administration is also exploring other options in addition to the Michigan prison for detainees who cannot be sent overseas, including a detention facility in Kansas [JURIST report]. Last 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].

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NY appeals court rules governor lacks authority to appoint lieutenant governor
Jaclyn Belczyk on August 21, 2009 12:33 PM ET

[JURIST] A New York state appeals court ruled [opinion text] Thursday that Governor David Paterson [official website] acted beyond the scope of his constitutional authority when he appointed Richard Ravitch lieutenant governor. The Second Judicial Department Appellate Division affirmed a lower court ruling that blocked Ravitch's appointment. The court found:

In our view, therefore, Public Officers Law § 43 cannot be constitutionally applied with respect to a vacancy in the office of lieutenant-governor because it does not authorize the Governor to fill the vacancy and it would permit an appointee of the Governor to do what the Constitution mandates be done by the temporary president of the Senate. Inasmuch as the statute as applied to the office of lieutenant-governor cannot be reconciled with the Constitution, it must yield. Thus, the Governor's purported appointment of Mr. Ravitch was unlawful because no provision of the Constitution or of any statute provides for the filling of a vacancy in the office of lieutenant-governor other than by election, and only the temporary president of the Senate is authorized to perform the duties of that office during the period of the vacancy.

Thursday's decision clears the way for the case to go before the Court of Appeals. A spokesperson for the governor said that he had not decided whether to seek a stay [NYT report] to allow Ravitch to serve while the appeal is pending.

Paterson appointed Ravitch [Bloomberg report] on July 8 while the state Senate was embroiled in a power struggle between Democrats and Republicans. Paterson pointed to a provision of the New York Constitution that allows the governor to appoint people to fill vacant elected positions but it silent on whether the governor may appoint a lieutenant governor. New York has not had a lieutenant governor since former governor Eliot Spitzer resigned [NYT report] amid a prostitution scandal and Paterson became governor. The lieutenant governor serves as Senate president and casts tie-breaking votes.

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Ninth Circuit strikes down California law allowing 'Armenian genocide' victims to sue
Jaclyn Belczyk on August 21, 2009 10:52 AM ET

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Thursday that a California state law that allows descendants of victims of the Armenian Genocide [ANI backgrounder] to sue in state courts for unpaid insurance benefits is unconstitutional. The court found that California Civil Procedure Code § 354.4 [text] "interferes with the national government's conduct of foreign relations" because the federal government has declined to describe the World War I-era killings of over one million Armenians by Turkish soldiers as genocide. The court concluded:

California Code of Civil Procedure § 354.4 is preempted because it directly conflicts with the Executive Branch's foreign policy refusing to provide official recognition to the "Armenian Genocide." Far from concerning an area of traditional state interest, § 354.4 impinges upon the National Government's ability to conduct foreign affairs.

The lawsuit was brought by a California citizen of Armenian descent who initiated a class action suit against insurance companies, alleging they had failed to pay benefits. The plaintiff's lawyer said he plans to appeal [San Francisco Chronicle report] the ruling.

In October 2007, the US House of Representatives delayed action [JURIST report] on a resolution [H Res 106 materials] that would have labeled the 1915-1918 killings as genocide, a decision that was welcomed [JURIST report] by Turkish Prime Minister Recep Tayyip Erdogan [BBC profile]. The proposed legislation was approved by the House Foreign Relations Committee and had been expected to reach the floor [JURIST reports] before Congress recessed for the year. Then-Secretary of State Condoleezza Rice had told Congress that the resolution could "severely harm" US-Turkish relations [JURIST report]. Turkey has long objected [JURIST comment] to any attempts to classify the 1915 Armenian killings as genocide. Several other countries - including France, Canada and Argentina - have nonetheless passed laws or resolutions [BBC backgrounder] to that effect. The Obama administration's position on the matter has not been made clear.

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Federal judge dismisses challenge to overseas wiretapping law
Jaclyn Belczyk on August 21, 2009 10:06 AM ET

[JURIST] A judge in the US District Court for the Southern District of New York [official website] on Thursday dismissed [opinion, PDF] a lawsuit [complaint, PDF] challenging amendments to the Foreign Intelligence Surveillance Act (FISA) [text; JURIST news archive] that expand government power to eavesdrop on overseas conversations. The suit was filed [JURIST report] in July 2008 by the American Civil Liberties Union (ACLU) [advocacy website] on behalf of various rights groups, shortly after then-president George W. Bush signed the FISA Amendments Act (FAA) [HR 6304 text, PDF] into law. Dismissing the lawsuit, Judge John Koeltl ruled that the plaintiffs lacked standing to assert a claim. Director of the ACLU National Security Project Jameel Jaffer said [press release:

We are disappointed by today's ruling, which will allow the mass acquisition of Americans' international e-mails and telephone calls to continue unchecked. To say, as the court says, that plaintiffs can't challenge this statute unless they can show that their own communications have been collected under it is to say that this statute may not be subject to judicial review at all. The vast majority of people whose communications are intercepted under this statute will never know about it – in fact it's possible that no one will ever be able to make the showing that the court says is required.

The court's decision effectively means that Americans' privacy rights will be left to the mercy of the political branches. This is deeply troubling, because the courts have a crucial role to play in ensuring that individual rights are not needlessly infringed upon by statutes enacted in the name of national security.
Plaintiffs are reportedly considering an appeal of Thursday's ruling.

In June, a federal judge upheld [JURIST report] provisions of the FAA giving immunity to telecom companies from liability associated with assisting the National Security Agency (NSA) with warrantless eavesdropping, dismissing 46 lawsuits against the telecom industry. In January, the Foreign Intelligence Surveillance Court of Review made public [JURIST report] a ruling from August 2008 that upheld the Protect America Act [text], a previous 2007 amendment to FISA that allowed warrantless wiretaps of international phone and e-mail communications. After the amendment, warrants were still required to monitor purely domestic communications. The 2008 FISA amendment law granted the FISA court authority to review a wider range of wiretapping orders, prohibited the executive branch from overriding the court's authority, and ordered the DOJ and other agencies to issue this latest report on the country's use of wiretapping orders.

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Swiss banker, lawyer charged with conspiring to defraud US
Jaclyn Belczyk on August 21, 2009 9:23 AM ET

[JURIST] A Swiss banking executive and a Swiss lawyer were indicted [text, PDF] Thursday on charges of conspiring to defraud the US, the Department of Justice (DOJ) and Internal Revenue Service (IRS) [official websites] announced [press release]. According to the indictment, filed in the US District Court for the Southern District of Florida [official website], Hansruedi Schumacher, executive manager at Neue Zuercher Bank (NZB) [corporate website], and lawyer Matthias Rickenbach helped US clients to illegally conceal assets by setting up sham investment accounts. Schumacher and Rickenbach allegedly falsified documents and discouraged their clients from complying with US tax laws. IRS Commissioner Doug Shulman said:

This is another step in our ongoing effort to pursue hidden offshore assets - no matter where they are located. We're in the early stages of our work to crack down on offshore tax evasion. Through our efforts, we are gaining access to more and more information on institutions and individuals involved in offshore tax evasion, and you can expect us to use all of our enforcement tools to stop this abuse. For people with hidden offshore assets, they have an opportunity to get right with the government. Time is quickly running out, and people should take advantage of our voluntary disclosure process before special provisions expire September 23.

A spokesperson for NZB said Friday that Schumacher had been fired [NYT report] from the bank but declined to make further comments.

Earlier this week, the US government reached an agreement [JURIST report] with Switzerland that would grant the IRS access to information on thousands of Swiss bank accounts. As part of the agreement [text, PDF], the Swiss government will instruct banking giant UBS [corporate website] to begin to turn over information regarding certain anonymous bank accounts. In return, the US will cease unilateral efforts to seek account holder information, including withdrawing motions to enforce "John Doe" summons. In early May, the Obama administration announced revisions to the tax code [JURIST report] designed to curb overseas tax havens. One week earlier, the Swiss government filed an amicus curiae brief in the US District Court for the Southern District of Florida, alleging that the attempt to obtain account holder information by the US violated Swiss national sovereignty [JURIST report]. Earlier this year, the Swiss announced their intention to adopt a more stringent definition [JURIST report] of tax evasion and to work with other countries to investigate such claims.

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Cambodia genocide tribunal expects early 2010 verdict for ex-Khmer Rouge official
Benjamin Hackman on August 21, 2009 8:06 AM ET

[JURIST] A verdict is expected by early 2010 in the trial of former Khmer Rouge [BBC backgrounder] official Kaing Guek Eav [TrialWatch backgrounder, JURIST news archive], a spokesperson for the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] confirmed to JURIST Thursday. Kaing, also known as "Duch," is the first senior official of the Khmer Rouge, the communist regime responsible for the deaths of an estimated 1.7 million Cambodians from 1975 to 1979, to face justice. Also Thursday, ECCC head judge Nil Nonn said that the court would deliver a fair and just verdict [AFP report], warning witnesses not to use the proceedings to take revenge against Kaing.

In March, Kaing accepted responsibility and apologized [JURIST report] for the torture and murder of some 12,000 Cambodians at the Tuol Sleng detention center, where he was secretary. Kaing faces charges [press release, PDF] of homicide, torture, crimes against humanity, and breaches of the Geneva Conventions [materials]. He is the first of eight ex-Khmer Rouge officials expected to be tried before the ECCC, which last week announced the establishment of an independent counselor to oversee anti-corruption efforts [JURIST reports]. The ECCC has been plagued by accusations of corruption, and, last month, Human Rights Watch (HRW) [advocacy website] asked the ECCC to determine the scope of its prosecutions [JURIST report] "to thwart growing perceptions that court decisions are directed by the government." In February, HRW warned that ECCC trials were in danger of being tainted for their failure to follow fair trial standards, and in January a Cambodian court agreed to hear a corruption case [JURIST reports] involving two ECCC judges.

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US indicts Mexican cartel leaders on drug trafficking charges
Matt Glenn on August 21, 2009 7:13 AM ET

[JURIST] Ten accused Mexican drug cartel leaders and 33 others have been indicted [press release; indictment materials] in New York and Chicago, the US Department of Justice (DOJ), Drug Enforcement Agency (DEA), and Immigration and Customs Enforcement (ICE) [official websites] announced Thursday. According the indictments, four of which were filed in the US District Court for the Eastern District of New York and eight of which were filed in the US District Court for the Northern District of Illinois [official websites], the cartels combined to smuggle over 200 metric tons of cocaine in the US between 1990 and 2008. In the investigations that led to the indictments, government officials seized over 32,500 kilograms of cocaine, 64 kilograms of heroin, and $22.6 million in cash. So far, the investigation has led to the indictment of 58 individuals. Many of those charged remain at large, and it is not clear how many of them are currently in the US. At a press conference, Attorney General Eric Holder [official profile] stated [text]:

Our friends and partners in Mexico are waging an historic and heroic battle with the cartels as we speak. This is not a fight that we in the United States can afford to watch from the sidelines. The stakes are too high and the consequences too real for us. We will continue to investigate, charge, and arrest the cartel leaders and their subordinates, and we will continue systematically to dismantle and disrupt their far-reaching and dangerous operations.

Of the 58 people indicted, all but one could be sentenced to life in prison.

In May, Mexican security forces arrested [JURIST report] 27 Mexican public officials on drug-related corruption charges. In April, the Mexican Senate passed an amendment [JURIST report] to the country's constitution that would permit the government to seize property from suspected drug traffickers and other criminals prior to conviction. In October, reports indicated that both the Assistant Attorney General’s Office Specializing in Organized Crime (SIEDO) and the US Embassy in Mexico had been infiltrated [JURIST report] by a branch of the Sinaloa drug cartel, which paid officials to turn over confidential information. The chief of Mexico's Federal Preventative Police resigned [JURIST report] in connection to the investigation.

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

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