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Legal news from Wednesday, October 28, 2009

Hawaii Supreme Court dismisses final claim in native land case
Hillary Stemple on October 28, 2009 1:13 PM ET

[JURIST] The Hawaii Supreme Court [official website] on Tuesday dismissed the last claim seeking a permanent ban on the sale of lands ceded by the former monarchy. Claims were originally filed by four members of the Native Hawaiians [advocacy website] and the Office of Hawaiian Affairs (OHA) [official website] in order to prevent the sale of 1.2 million acres of land. Three of the four Native Hawaiian defendants and OHA reached a compromise [Honolulu Advertiser report] with the state that would require approval by two-thirds of both houses of the state legislature before any of the ceded lands could be sold. The agreement was part of Hawaii State Senate Bill 1677. The fourth defendant, University of Hawaii professor Jonathan Osorio, rejected the compromise and continued with his lawsuit, but the court dismissed his suit Tuesday. Hawaii Attorney General Mark Bennett [official website] said [press release, PDF] he was "pleased" with the court's decision.

OHA originally won an injunction from the Hawaii Supreme Court preventing the sale of the land, but the US Supreme Court reversed [JURIST report] the lower court ruling in March. The Supreme Court's ruling held that the state court had erred in interpreting the 1993 Apology Resolution [text] as Congress's attempt to take away the right of the citizens of Hawaii to resolve an issue of such importance to the state.

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House committee approves new investment rating regulations
David Manes on October 28, 2009 1:11 PM ET

[JURIST] The US House Financial Services Committee [official website] voted 49-14 Wednesday to approve new regulations governing investment rating agencies. The Accountability and Transparency in Rating Agencies Act [HR 3890 text], sponsored by Paul Kanjorski (D-PA) [official website], modifies the Securities Exchange Act of 1934 [text, PDF], giving the Securities and Exchange Commission (SEC) [official website] the authority to monitor and punish ratings agencies. Kanjorski sees the need for increased regulation, saying [press release]:

The Accountability and Transparency in Rating Agencies Act aims to curb the inappropriate and irresponsible actions of credit rating agencies which greatly contributed to our current economic problems. This legislation builds on the Administration’s proposal and takes strong steps to reduce conflicts of interest, stem market reliance on credit rating agencies, and impose a liability standard on the agencies. As gatekeepers to our markets, credit rating agencies must be held to higher standards. We need to incentivize them to do their jobs correctly and effectively, and there must be repercussions if they fall short. This bill will take such steps. I look forward to moving it through the legislative process.”

With the bill out of committee, a vote on the floor of the House could be scheduled as early as next month.

Since the subprime mortgage crisis, lawmakers have discussed extensive reforms to US financial regulations [JURIST news archive]. Although some reforms have already been enacted, President Barack Obama called for even stronger regulations [JURIST report] for certain aspects of the financial industry when he gave a speech marking the one-year anniversary of the collapse of Lehman Brothers Holdings. Lawmakers have charged investment rating agencies for misleading investors by promoting high-risk securities secured by subprime mortgages. In September, 2008, the SEC charged two former brokers [JURIST report] with fraud for misrepresenting subprime-backed securities.

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Kuwait constitutional court rules women lawmakers not required to wear headscarf
Megan McKee on October 28, 2009 1:02 PM ET

[JURIST] The Kuwaiti Constitutional Court [official website, in Arabic] ruled Wednesday that female lawmakers are not required to wear the hijab [JURIST news archive], or traditional Muslim headscarf. The ruling was in response to a petition brought by four voters seeking to invalidate the election of two of the four women who became the first female members [BBC report] of the Kuwaiti National Assembly in June because they refuse to wear the hijab. The petitioners claimed [AFP report] that women who choose not to wear hijab should be excluded from the legislature because they are in violation of a clause in the 2005 electoral law [JURIST report], which gave women the full right to vote and run for parliament, but stipulates that women voters and candidates must comply with Islamic Sharia law. The court held [AP report] that the clause was vague and failed to specify to what regulations women must adhere. It also stressed the primacy of the 1962 Constitution [text] and the guarantees of personal freedoms it includes.

In another landmark ruling on women's rights, the Constitutional Court overturned [JURIST report] an article of the Personal Status Law that required a woman to obtain approval from her husband, parents, or guardian to apply for a passport. The court found that the law was also in conflict with the guarantees of personal freedom and gender equality inherent in the constitution.

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Italy court upholds former Berlusconi lawyer bribery conviction
Steve Dotterer on October 28, 2009 12:28 PM ET

[JURIST] An Italian appeals court on Tuesday upheld the bribery conviction of David Mills [JURIST news archive], a British barrister and former lawyer to Italian Prime Minister Silvio Berlusconi [official profile, in Italian; BBC profile]. Mills was sentenced [JURIST report] in February to a four-and-a-half years in prison for allegedly accepting USD $600,000 in bribes for offering false testimony at two trials in 1997 and 1998 involving Berlusconi broadcasting company Mediaset [corporate website]. A lawyer for Mills said he plans to appeal [AKI report] to Italy's high court, the Court of Cassation [official website, in Italian].

Mills's testimonies at issue were given during trials accusing Berlusconi of giving kickbacks to the late Socialist premier Bettino Craxi [JURIST report]. Berlusconi was acquitted of all those charges. The bribery and corruption trial against Berlusconi and Mills began in 2007, but Berlusconi was removed as a defendant after a new law granted top Italian lawmakers immunity from prosecution [JURIST reports] while in office. Earlier this month, the Italian Constitutional Court struck down [JURIST report] that law, which means that the case could now be reopened.

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Federal judge dismisses stem cell research funding challenge
Dwyer Arce on October 28, 2009 12:18 PM ET

[JURIST] A judge in the US District Court for the District of Columbia [official website] on Tuesday dismissed [opinion, PDF] a lawsuit challenging the Obama administration's decision [JURIST report] to ease restrictions on stem cell research [JURIST news archive]. Nightlight Christian Adoptions [advocacy website] claimed that the removal of restrictions on stem cell research would lower the number of embryos available for adoption. Judge Royce Lamberth ruled that this claim was speculative and that for Nightlight to have standing to sue they would need to show that donors were choosing to donate embryos for research instead of adoption:

[T]he Court finds that Nightlight lacks standing because its alleged injury is "mere 'unadorned speculation' as to the existence of a relationship between the [guidelines] and the third-party conduct." Indeed, if Nightlight suffers any injury at all, it will be because of the choices of third parties not before this court, and not because of the guidelines.

Executive director of Nightlight Rod Stoddart expressed his disappointment [NYT report] in the court's decision, stating that it had taken the "easy way out" and that his organization would consider filing an appeal.

The lawsuit was filed in August in response to the proposed guidelines [text; JURIST report] for funding human embryonic stem cell research released by the National Institute of Health (NIH) [official website] in April, which limited funding to embryos that were created to be used in fertility clinics but were no longer needed and would have been discarded. Additionally, the donor must have consented to giving the embryos for research purposes. The NIH guidelines reversed previous rules that limited government funding to only stem cell lines that were in existence as of August 2001.

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Chechnya president files criminal libel suit against Memorial rights activist: reports
Amelia Mathias on October 28, 2009 9:59 AM ET

[JURIST] A lawyer for Chechen President Ramzan Kadyrov [JURIST news archive] said Tuesday that a criminal libel suit has been filed against the leader of human rights group Memorial [advocacy website, in Russian], according to media reports. Oleg Orlov, who accused Kadyrov of responsibility for the July death of Memorial journalist Natalia Estemirova [JURIST report], could face a maximum sentence of three years in prison. Orlov already lost a civil suit filed by Kadyrov, and must pay USD $2,300 in fines and remove his accusation [AP report] from Memorial's website. The charges come less than a week after Orlov won the prestigious Sakharov Award from the European Union for his work with Memorial.

Less than a month after Estemirova's death, Chechen human rights activist Zarema Sadulayeva and her husband Alik Dzhabrailov were found dead [JURIST report] in the trunk of their car. Saulayeva and Dzhabrailov were taken [Moscow Times report] from the office of her organization, Let's Save the Generation, which works to aid children affected by violence in Chechnya. The recent violence has reportedly caused Russian human rights activists to leave the region [JURIST report], with Memorial closing its Chechen offices after Estemirova's death.

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UN rights investigator warns US drone attacks may violate international law
Amelia Mathias on October 28, 2009 9:02 AM ET

[JURIST] UN Special Rapporteur on extrajudicial, summary or arbitrary executions Philip Alston [official website] said Tuesday that the use of unmanned warplanes by the US to carry out attacks in Pakistan and Afghanistan may be illegal. Alston criticized the US policy in a report to the UN General Assembly's human rights committee and then elaborated at a press conference [press release; recorded video]:

My concern is that these drones, these predators, are being operated in a framework which may well violate international humanitarian law and international human rights law. The onus is really on the government of the United States to reveal more about the ways in which it makes sure that arbitrary executions, extrajudicial executions, are not in fact being carried out through the use of these weapons. The response of the US is simply untenable, and that is that the Human Rights Council and the General Assembly by definition have no role in relation to killings that take place in relations to an armed conflict. that would remove the great majority of issues that come before these bodies right now.

Alston's report was presented as part of a larger demand that no state be free from accountability.

Alston previously raised the issue of US drone attacks in June. The US government responded that its position is that such attacks are carried out in a war zone where the UN has no role. The controversial attacks have killed about 600 people in northwestern Pakistan since August 2008, including around 400 militants. US Senator John Kerry said this week that the attacks would continue [RTTNews report], claiming that they have been successful in combatting al Qaeda and have resulted in minimal collateral damage. Also this week, a Pakistani court upheld the dismissal of a petition [The Nation report] against US drone attacks that sought to declare the US an enemy state.

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Ninth Circuit to reconsider state secrets claim in CIA rendition lawsuit
Matt Glenn on October 28, 2009 8:29 AM ET

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] agreed Tuesday to an en banc rehearing [order, PDF] of a Department of Justice (DOJ) [official website] request to dismiss a suit against a company that allegedly provided logistical support for CIA rendition [JURIST news archive] flights. At issue is whether the state secrets privilege [JURIST news archive] can prevent the suit from going forward. A three-judge panel for the Ninth Circuit previously ruled [opinion, PDF; JURIST report] that the state secrets privilege does not bar a lawsuit against the company. In June, the DOJ requested [DOJ brief, PDF; JURIST report] that the full court reconsider the ruling. The suit was brought by plaintiffs Binyam Mohamed [Reprieve profile; JURIST news archive], Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher al-Rawi, who alleged that Boeing subsidiary Jeppesen Dataplan [corporate website] knowingly supported direct flights to secret CIA prisons, facilitating the torture and mistreatment of US detainees. In 2007, the DOJ intervened before the defendant filed an answer, maintaining that the lawsuit posed a risk to national security. The appellate court overturned the lower court's dismissal of the case, ruling that the state secret privilege must be based on actual evidence in the case, not on what evidence might be involved. A staff attorney for the American Civil Liberties Union (ACLU) [advocacy website], which represents the plaintiffs decried [press release] Tuesday's order for a rehearing:

We are disappointed by the court's decision to re-hear this case, but we hope and expect that the court's historic decision to allow the lawsuit to go forward will stand. The CIA's rendition and torture program simply is not a "state secret." In fact, since the court's decision in April, the government's sweeping secrecy claims have only gotten weaker, with the declassification of additional documents describing the CIA's detention and interrogation practices. The Obama administration's embrace of overbroad secrecy claims has denied torture victims their day in court and shielded perpetrators from liability or accountability. We hope that the court will reaffirm the principle that victims of torture deserve a remedy, and that no one is above the law.
The state secrets privilege, which allows the exclusion of evidence based on a government affidavit that such evidence may endanger national security, has been highly criticized by rights groups and others. Julian Sanchez [Cato profile] of the Cato Institute [advocacy website] argued [JURIST comment] this month that Congress should implement state secrets reforms, rather than relying on the DOJ to increase oversight. Last month Attorney General Eric Holder [official profile] announced [JURIST report] a number of new state secrets policies seeking to increase government accountability and oversight. Also last month, OpenTheGovernment.org [advocacy website] released a report [text, PDF] examining the privilege and other transparency issues, concluding that the current administration has improved transparency [JURIST report], but more should be done.

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ICTY resumes Karadzic war crimes trial in absentia
Andrea Bottorff on October 28, 2009 8:04 AM ET

[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Tuesday resumed proceedings [court schedule] against former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive], one day after adjourning [JURIST report] because Karadzic failed to appear for the opening of his war crimes trial. Presiding judge O-gon Kwon [official profile] urged Karadzic to attend the trial, but later announced that the ICTY would try Karadzic in absentia if he failed to appear for the second day. Karadzic's legal adviser had previously said that Karadzic would not attend [AP report] the trial on Tuesday.

Karadzic announced last week that he planned to boycott [JURIST report] his trial because he had not been given adequate time to prepare a defense [text, PDF]. Earlier this month, Karadzic asked the UN Security Council to grant him immunity from trial after the ICTY appeals chamber rejected his argument [JURIST reports] that he was promised immunity by former US ambassador to the UN Richard Holbrooke in exchange for his resignation. Karadzic faces 11 charges [amended indictment, PDF], including genocide and murder, for war crimes committed during the 1992-1995 Bosnian genocide [PPU backgrounder]. In June, the ICTY said that Karadzic's trial was expected to conclude in early 2012 [JURIST report]. His trial is planned to be the tribunal's last.

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France court convicts high-profile defendants in Angola arms trade case
Matt Glenn on October 28, 2009 7:19 AM ET

[JURIST] A French court convicted several high-profile defendants Tuesday for their roles in illegal arms sales to Angola during the 1990s, known as Angolagate [Global Witness report, PDF]. Among those convicted were former interior minister and current senator Charles Pasqua [official profile, in French], who was found guilty [Le Monde report, in French] of illegal lobbying, and Jean-Christophe Mitterrand, son of former French president Francois Mitterrand, who was found guilty [Times report] of accepting bribes. Pasqua was sentenced to a year in prison and a two-year suspended sentence and assessed a 100,000 euro fine while Mitterrand received a two-year suspended sentence and was fined 375,000 euros. The court's harshest punishment went to French businessman Pierre Falcone and Russian-Israeli businessman Arcadi Gaydamak [BBC profile], who were each sentenced to six years in prison [AFP report] for arms trafficking and other offenses. Gaydamak was sentenced in absentia and has eluded French authorities. Only six of the 42 defendants were acquitted, but most of those convicted, including Mitterrand, Pasqua, and Falcone, said they plan to appeal.

The complicated trial began [JURIST report] last year. The Angolagate affair involved large-scale arms sales to the Angolan government during the civil war between government forces led by President Jose Eduardo dos Santos [BBC profile] and the UNITA [official website, in Portuguese] anti-communist movement, led by the late Jonas Savimbi. The Angolan civil war was largely a proxy war between Cuban communist-supported dos Santos government and the US-backed UNITA rebels. The Angolan government was supplied with arms, including rifles, land mines, grenades, and tanks.

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Czech court delays judgment on EU Lisbon Treaty
Jonathan Cohen on October 28, 2009 7:03 AM ET

[JURIST] The Constitutional Court of the Czech Republic [official website, in Czech] delayed [press release, in Czech] judgment Tuesday on a challenge to the country's signing of the European Union (EU) reform treaty, known as the Treaty of Lisbon [EU materials; JURIST news archive]. The complaint was brought by a group of senators who claim that the treaty infringes [Ceske report] upon Czech sovereignty. In addition to surviving the legal challenge, the treaty must also be signed by Czech President Vaclav Klaus [official website, in Czech] before it takes effect, but Klaus has said he will wait to do so until after the court has made its decision. The postponement has been criticized [Ceske report] by various Czech politicians, and there has been speculation that Klaus will be pressured to make a decision on the treaty before a European Council meeting [materials] scheduled to begin on Thursday. The court expects to deliver an opinion by next week.

The Czech Republic is the only EU member state that has not yet ratified the treaty. In a statement [text, in Czech; JURIST report] last week, Klaus said he was satisfied with the the treaty, given the inclusion of an opt-out clause that would shield the country from property claims by ethnic Germans expelled from Czechoslovakia during World War II. The Czech Republic's Chamber of Deputies [official website] approved [JURIST report] the treaty in February, and the Senate of the Parliament of the Czech Republic [official website] voted to approve [JURIST report] the treaty in March. Efforts to ratify the treaty [JURIST news archive] in all 27 EU member states, as required for approval, have faced some opposition. Members Poland and Ireland [JURIST reports] approved the treaty earlier in the month, but only after certain guarantees were made by the EU. Germany signed [JURIST report] the treaty in September.

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

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