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Legal news from Thursday, April 8, 2010

Turkish court sentences Kurdish rights activist to 3 years in prison
Zach Zagger on April 8, 2010 3:25 PM ET

[JURIST] Turkish politician and Kurdish rights activist Leyla Zana [NNDB profile] was sentenced Thursday to three years in prison for spreading terrorist propaganda. Zana was convicted [Zaman report, in Turkish] by a court in the city of Diyarbakir for two speeches delivered at the Kurdish political congress and protest in 2008. Zana has previously been convicted for spreading propaganda under Turkey's anti-terrorism laws, most recently facing a 10-year sentence [JURIST report] in 2008 for supporting the Kurdistan Worker's Party (PKK) [BBC profile; FAS backgrounder], a militant Kurdish nationalist group. She remains free [Reuters report] pending appeal. Turkey has been accused of using its anti-terrorism laws to suppress Kurdish nationalists. The Kurdish Human Rights Project (KHRP) [advocacy website] criticized Turkey's anti-terrorism laws [KHRP briefing paper] saying that though they were passed due to heightened security concerns, they have hindered freedom of expression, association, and have been used to suppress certain groups like the Kurds.

Zana was the first women elected to Turkey's parliament in 1991, and shortly thereafter there were calls for her arrest when she read the Parliamentary Oath in Kurdish. She was sentenced to 15 years in prison, along with other members of her Democracy Party, when the party was banned in 1994. She served 10 years in prison until her conviction was overturned and she was freed from prison [JURIST reports] in 2004. In calling for a peaceful settlement to issues of Kurdish rights, she had been nominated for the Nobel Peace Prize in 1995 and 1998, and was awarded the Sakharov Prize [official website] in 1995.

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Spain agrees to accept 4 additional Guantanamo detainees
Sarah Miley on April 8, 2010 2:25 PM ET

[JURIST] US Attorney General Eric Holder [official website] announced Thursday that Spain has agreed to resettle four detainees [press release] from the Guantanamo Bay [JURIST news archive] detention facility. The four detainees are in addition to a Palestinian detainee transferred to Spain [JURIST report] earlier this year. The governments have yet to decide which detainees will be transferred. Holder met with Spanish Prime Minister Jose Luis Rodriguez Zapatero [official profile] during his visit to Spain to discuss issues of counter-terrorism and combating international organized crime. Holder also signed a Memorandum of Understanding with Prosecutor General Conde-Pumpido to strengthen the ability of law enforcement officials to work cooperatively within each others' countries.

In February, Spanish Foreign Minister Miguel Angel Moratinos [official profile] initially agreed to accept five detainees after the government had previously agreed to accept only two detainees [JURIST reports], one Yemeni and one Palestinian, in response to a June request [AFP report] by the Obama administration. Moratinos indicated [El Pais report, in Spanish] that Spain was willing to increase the number of detainees accepted in order to help remedy what it sees as an unacceptable situation at the detention facility. Spain joins a growing list of countries that have recently accepted transfers, including Latvia, Switzerland, Slovakia, Algeria, Afghanistan, Palau , Bermuda, Albania, and Somaliland [JURIST reports].

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Former Guantanamo detainee sues US government for torture
Matt Glenn on April 8, 2010 1:58 PM ET

[JURIST] Former Guantanamo Bay [JURIST news archive] detainee Adel Hassan Hamad [advocacy website] filed suit [complaint, PDF] in the US District Court for the Western District of Washington [official website] Wednesday against the US government and more than a dozen government officials. Hamad, a Sudanese aid worker captured in Pakistan in 2002, claims he was tortured during his time at Guantanamo Bay. A lawyer for Hamad claimed in 2007 that he was not guilty of any crimes [JURIST op-ed] and that the government had obstructed lawyers' attempts to clear his name. It is unclear how much compensation Hamad is seeking.

Hamad was among a group of former detainees who announced in Sudan [JURIST report] in 2008 that they planned to sue the US government in US courts. The US government released Hamad [JURIST report] in 2007. Earlier that year, Hamad's lawyers filed an affidavit signed by an unnamed Army officer accusing the government of bias [JURIST report] in its treatment of detainees.

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North Carolina group challenges constitutionality of Voting Rights Act
Jonathan Cohen on April 8, 2010 1:20 PM ET

[JURIST] A group of citizens from Kinston, North Carolina, on Wednesday filed suit [complaint, PDF] in the US District Court for the District of Columbia [official website] claiming that Section 5 [DOJ backgrounder] of the federal Voting Rights Act (VRA) [text] unconstitutionally discriminates on the basis of race. Section 5 requires certain voting districts to seek federal approval before making any changes to voting procedure, in order for the government to ensure that the changes do not adversely affect minority voting rights. Kinston had sought to institute a non-partisan voting system, but was denied approval [DOJ letter, PDF] to do so by the Department of Justice (DOJ) [official website]. The DOJ found that even though the system was not intended to harm minority interests, it would have the effect of reducing minority political representation. The group filing the complaint [advocacy backgrounder] argues that Section 5 is unconstitutional because it does not provide the same protection for non-minority groups and because its original rationale has now expired.

In June, the US Supreme Court [official website] upheld [opinion, PDF; JURIST report] Section 5 without reaching its constitutional validity. The court ruled 8-1 in Northwest Austin Municipal Utility District Number One v. Holder [Cornell LII backgrounder] that the VRA permits covered municipalities to "bail out" from the preclearance requirement of Section 5 if they can establish a history of compliance with the VRA, but declined to rule on the constitutionality of Congress's 25-year extension of the section in 2006. The city of Kinston did not seek the bail out option.

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Philippines supreme court certifies gay rights party for election
Daniel Makosky on April 8, 2010 12:02 PM ET

[JURIST] The Supreme Court of the Philippines [official website] ruled [judgment text] Thursday that a prominent gay rights organization may field candidates in the upcoming national elections as an accredited political party. The decision invalidates an order [text, PDF] issued by the Commission on Elections (Comelec) [official website] in November that rejected a bid for party recognition by Ang Ladlad [party website]. In denying Ang Ladlad's original petition, Comelec cited the group's "[tolerance of] immorality which offends religious beliefs." The court, however, determined that the policy violated Article III, Section 5 of the Philippines Constitution [text], which has previously been interpreted to mandate "government neutrality in religious matters." The decision stated:

[W]e hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlad's registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public interest. Respondent's blanket justifications give rise to the inevitable conclusion that the Comelec targets homosexuals themselves as a class, not because of any particular morally reprehensible act.

Having met all legal requirements for certification as a party, the court ordered that Ang Ladlad be permitted to fully participate in the May elections.

The court issued a temporary restraining order [Manila Bulletin report] against Comelec in January, requiring the body to include Ang Ladlad on the list of official parties until a decision on the case's merits could be reached. In December, Comelec again rejected [GMA report] Ang Ladlad's request for accreditation. Officials voting against the group reiterated their moral concerns, and stated that their interests are sufficiently represented legislatively.

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Pakistan assembly approves bill to curb presidential powers
Haley Wojdowski on April 8, 2010 11:38 AM ET

[JURIST] Pakistan's National Assembly [official website] on Thursday unanimously passed a constitutional amendment [text, PDF] that would curtail the powers of the president. The 18th Amendment Bill would reverse the expansion of presidential powers under former military leader Pervez Musharraf [BBC profile, JURIST news archive] by transferring presidential powers to the office of the prime minister [official website], effectively reserving the presidency as a figurehead. Among other changes, the president would no longer have the power to dissolve parliament, dismiss the prime minister, or appoint the chief of the armed forces. The bill must be approved by a two-thirds majority of the Senate and be signed by President Asif Ali Zardari [official website] before becoming law.

The introduction of the bill comes amid controversy over reopening corruption investigations against Zardari. Last week, Pakistan's Attorney General Anwar Mansoor announced his resignation over controversy surrounding a Supreme Court order to investigate corruption allegations [JURIST reports] against Zardari. Earlier that week, Swiss authorities denied a request [JURIST report] from Pakistan's National Accountability Bureau [official website], refusing to reopen a corruption investigation against Zardari. Aides to Zardari believe that presidential immunity protects him from prosecution, even after the Supreme Court overturned an amnesty law [JURIST report] implemented by Musharraf. The amnesty was signed [JURIST report] by Musharraf as part of a power-sharing accord allowing former Pakistani prime minister Benazir Bhutto [BBC profile] to return to the country despite corruption charges [JURIST report] she had faced.

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Kyrgyzstan opposition declares interim government
Andrea Bottorff on April 8, 2010 10:29 AM ET

[JURIST] Former Kyrgyz foreign minister Roza Otunbayeva [Telegraph profile] announced Thursday that she will lead an interim government in Kyrgyzstan after violent protests [JURIST report] Wednesday apparently ousted president Kurmanbek Bakiyev [BBC profile] and his administration. Otunbayeva, leader of the Social Democratic Party of Kyrgyzstan [party website, in Russian], urged Bakiyev to resign and said that her temporary government will rule for six months [Guardian report] until the country holds democratic elections. Bakiyev, who fled the capital city Wednesday, said in a statement Thursday that he will not resign [AP report]. Also Thursday, UN Secretary-General Ban Ki-moon [official website] announced that he will send an envoy to Kyrgyzstan and encouraged calm [UN News Centre report] in the unstable country. Ban said in a statement [text] that "while freedom of assembly is an essential element of any democratic society, the rule of law must be respected." Rights groups have also urged leaders to respect human rights [HRW press release].

The violent protests, which appear prompted [NYT report] in part by a drastic increase in utility costs, began late Tuesday night in the city Talas then spread throughout the country Wednesday. Reports vary as to the number of citizens killed during the protests, with Kyrgyz opposition officials reporting more than 60 deaths and more than 400 injuries. Interior Minister Moldomus Kongantiyev was killed [AFP report] during an attack by protesters, while former prime minister and presidential candidate Almazbek Atambayev and former parliament speaker Omurbek Tekebayev were among the many opposition leaders arrested [AFP report]. The protesters also took control [Reuters report] of the country's television station, and approximately a thousand people surrounded the prosecutor-general's office and set it on fire. The protests came a week after Ban called on Kyrgyzstan to protect all forms of human rights [JURIST report]. The statements follow recent events [RIA Novosti report] in the country that include the shutdown of an opposition newspaper, a police raid on a local television station that resulted in the station being taken off the air, and the confiscation of computers from a video web portal based on allegations of pirated software use.

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Texas AG: 5 more states to join health care lawsuit
Erin Bock on April 8, 2010 9:51 AM ET

[JURIST] Texas Attorney General Greg Abbott [official website] announced Wednesday that five additional states will join [press release] in a lawsuit [complaint, PDF] challenging the constitutionality of the recently enacted Patient Protection and Affordable Care Act [HR 3590 materials]. The five states - Indiana, North Dakota, Mississippi, Nevada, and Arizona - will join 13 other states [JURIST report] in a legal battle that began last month 23 when the complaint seeking an injunction and declaratory relief was filed in a Florida federal court. Abbott commented on the impact of the inclusion of additional states and voiced his concern over the potential effects the health care legislation will have on Texas and the US:

No public policy goal - no matter how important or well-intended - can be allowed to trample the protections and rights guaranteed by the U.S. Constitution. The federal health care legislation violates our Constitution, imposes an unprecedented mandate on individual Texans, and will require the Texas taxpayers to spend billions of additional dollars on health care programs. The addition of five new states to our bipartisan legal challenge reflects broad, nationwide concern about the constitutionality of this sweeping and unprecedented federal legislation.

The other states involved in the suit are Florida, South Carolina, Nebraska, Pennsylvania, Louisiana, Washington, Colorado, Michigan, Utah, Alabama, South Dakota, and Idaho.

Among the allegations in the suit are violations of Article I and the Tenth Amendment of the Constitution, committed by levying a tax without regard to census data, property, or profession, and for invading the the sovereignty of the states. The plaintiffs also assert that the law should not be upheld under the commerce clause. Last month, Idaho Governor CL Otter signed a bill [JURIST report] barring the federal mandate to purchase health insurance. Virginia Governor Bob McDonald has indicated that he will sign a similar bill [JURIST report] recently passed by the Virginia legislature. President Barack Obama signed the Health Care and Education Reconciliation Act [JURIST report] into law last week, which addressed concerns raised by the original bill, including provisions to help uninsured Americans pay for coverage, concerns over the effects to Medicare, and lowering the penalty for not buying insurance.

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US, Russia presidents sign nuclear arms reduction treaty
Bhargav Katikaneni on April 8, 2010 8:25 AM ET

[JURIST] US President Barack Obama and Russian President Dmitry Medvedev [official profiles] on Thursday signed the so-called New START treaty [text, PDF; BBC backgrounder], pledging to reduce their countries' nuclear warheads by about 30 percent. Under the terms of the treaty and its protocol [text, PDF], both countries would only be allowed to deploy 1,550 strategic warheads, a decrease from the 2,200 currently permitted. The treaty would also re-establish mechanisms to allow each party to inspect the other's nuclear arsenal. Speaking at a joint press conference after signing the treaty, Obama said [transcript] that "[w]hile the New START treaty is an important first step forward, it is just one step on a longer journey," reiterating his vision of a world without nuclear arms. Medvedev praised the treaty [transcript, in Russian; video, in Russian] as "a very important step to build trust and understanding between our two countries." The treaty must be ratified by both countries before entering into force.

The treaty agreement, reached [JURIST report] in February, is the first nuclear agreement between the two nations in nearly 20 years. The US State Department began negotiating [JURIST report] the treaty with Russia in 2009. Nuclear disarmament between the US and Russia, whose nuclear arsenals comprise 95 percent of the world's nuclear weapons, languished during the Bush administration. The treaty is considered a key part of easing tensions between the two countries, which reached a high point after the 2008 Georgia conflict [BBC backgrounder].

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Kenya foreign ministry seeking release of Guantanamo detainee
Matt Glenn on April 8, 2010 6:52 AM ET

[JURIST] The Kenyan Ministry of Foreign Affairs [official website] declared Wednesday that Kenya's government is attempting to secure the release of Kenyan native Mohammed Abdumalik, who is currently detained at Guantanamo Bay [JURIST news archive]. The news was revealed in a letter [AP report] to Abdulmalik's family, informing them that the government will ask the United States to release the detainee. Abdulmalik's family filed a $30 million lawsuit [JURIST report] against the Kenyan government last year, claiming that Abdulmalik was illegally detained, tortured, and rendered to US authorities.

Abdulmalik was originally arrested by the Kenyan Anti-terrorism Police Unit in Mombasa in 2007 in connection with the 2002 bombing of a resort hotel [NYT report] and a failed attempt [BBC report] to shoot down an Israeli charter plane. He was then taken into US custody and eventually transferred to Guantanamo [DOD press release] where he allegedly confessed [HRW report] to the crimes, although his Combatant Status Review Tribunal [official website] report is still classified. British human rights group Reprieve [advocacy website], which has helped Abdulmalik's family, stated [Standard report] that the case points out the illegal means by which detainees have ended up in Guantanamo. Kenyan authorities deny [GlobalSecurity report] arresting Abdulmalik, whom they claim is not a Kenyan citizen, and handing him over to the US military.

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

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