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Legal news from Wednesday, April 28, 2010




Oklahoma governor vetoes firearm legislation
Tara Tighe on April 28, 2010 4:51 PM ET

Photo source or description
[JURIST] Oklahoma Governor Brad Henry [official profile] on Tuesday vetoed [press release] legislation [SB 1685 text, RTF] that would have exempted buyers of Oklahoma-made guns from several regulatory precautions including federal criminal background checks. Henry believes that the proposed legislation would "endanger citizens and law enforcement officers" by abolishing "common sense regulations" like background checks and giving criminals easy access to a wide array of weapons. Henry also cited constitutional concerns. Because there is no way to ensure that Oklahoma-manufactured weapons will remain in the state, Henry said that the proposed legislation would likely be seen as violating the Commerce Clause [Cornell LII backgrounder] and would therefore be declared unconstitutional if it were challenged in court. State Senator Randy Brogdon, an advocate for the bill, said that he was disappointed [press release] to learn that Henry had vetoed the legislation. Brogdon challenged Henry's assertions that the law would give criminals easy access to firearms and went on to claim that the legislation would actually have "stopped further federal attempts to erode our Constitutional right to protect ourselves and our families." It remains to be seen whether supporters of the bill in the state senate will garner the necessary support to override the veto.

The rights of states and municipalities to regulate firearms under the Second Amendment [text] of the US Constitution have become controversial. Last month, a federal judge ruled that firearms regulations [text] in Washington, DC, including a ban on assault weapons and a prohibition on large capacity ammunition feeding devices [ATF backgrounder], do not violate the Second Amendment [JURIST report]. In upholding the regulations, the judge cited the 2008 Supreme Court ruling in District of Columbia v. Heller [JURIST report], which struck down an outright ban on handgun ownership in Washington, DC. The Supreme Court recently heard arguments [JURIST report] in McDonald v. City of Chicago [oral arguments transcript, PDF] to determine whether the Second Amendment right to keep and bear arms applies to the states, and not just the District of Columbia.




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Russia court bans neo-Nazi group for extremist ideology
Jaclyn Belczyk on April 28, 2010 4:45 PM ET

Photo source or description
[JURIST] The Moscow City Court ruled Tuesday that the Slavic Union (SS) violates Russia's extremism laws, banning the organization. The SS, whose initials are the same as the Nazi paramilitary, was one of Russia's largest neo-Nazi [JURIST news archive] organizations. City prosecutors initiated the action [Moscow Times report], accusing the group of promoting nationalistic supremacy similar to the ideology of Nazi Germany. SS leader Dmitry Dyomushkin says he plans to appeal the ban [ITAR-TASS report]. He warned that the ban will anger radical ultranationalists into retaliation [AP report].

Earlier this month, a Moscow City Court judge known for presiding over cases involving neo-Nazi groups was killed [JURIST report] while leaving his apartment. Russia is currently struggling to limit hate crimes, which decreased in 2009 [JURIST report] according to the SOVA Center [advocacy website]. Last month, the Russian Prosecutor General's Office [official website, in Russian] banned Adolf Hitler's book Mein Kampf [Britannica backgrounder], finding it in violation of laws against extremism. In December, the Russian Supreme Court [official website, in Russian] upheld [JURIST report] a lower court decision to shut down the Taganrog Jehovah's Witness congregation and ban the distribution of 34 Jehovah's Witness publications, finding both the Jehovah's Witness congregation and the publications to be extremist. In 2007, the Russian parliament approved legislative amendments to change the prevailing definition of extremist crime [JURIST report] in Russian law to include activities taken for "political or ideological hatred."




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Russia makes public 1940 Katyn massacre documents
Jaclyn Belczyk on April 28, 2010 4:12 PM ET

[JURIST] The Russian government on Wednesday made public [press release] documents [materials, in Russian] relating to the 1940 Katyn Massacre [Britannica backgrounder; JURIST news archive] in which 20,000 Poles were killed by the USSR. While the documents were previously available to historians, political officials, and victims' families, this is the first time that copies of the original documents have been made available to the general public. Russian President Dmitry Medvedev [official website, in Russian] chose to make the documents public as relations between Russian and Poland have apparently improved following the April 10 plane crash [JURIST report] that killed Poland's president. Among the documents is a 1940 note signed by Joseph Stalin ordering the execution of Polish "nationalists and counter-revolutionaries."

The 1940 killings have long been a point of tension between the two governments, with Russia originally blaming the Nazis and only acknowledging responsibility in 1990. In February, the Polish government joined a class-action lawsuit [JURIST report] against Russia filed in the European Court of Human Rights (ECHR) [official website] by 13 Polish citizens who are relatives of the victims. In January 2009, victims' relatives were denied an appeal [JURIST report] to the Russian Supreme Court [official website, in Russian] to reopen investigations into the killings. The court reasoned that the Soviet-era criminal code to be applied to the killings places a 10-year statute of limitations on the proceedings.






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House subcommittee examines legality of unmanned drone strikes
Jaclyn Belczyk on April 28, 2010 3:55 PM ET

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[JURIST] A US subcommittee heard testimony Wednesday on the use of unmanned predator drone strikes [JURIST news archive]. The National Security and Foreign Affairs Subcommittee of the House Committee on Oversight and Government Reform [official websites] held a hearing [materials] on the legality of unmanned targeting. In his opening remarks [text, PDF], subcommittee chair John Tierney (D-MA) [official website] said:
The use of unmanned weapons to target individuals - and, for that matter, the targeting of individuals in general - raises many complex legal questions. We must examine who can be a legitimate target, where that person can be legally targeted, and when the risk of collateral damage is too high. We must ask whether it makes a difference if the military carries out an attack, or whether other government entities such as the Central Intelligence Agency may legally conduct such attacks. We must ensure that the Administration's understanding of the authorities granted to it by Congress do not exceed what Congress intended.
The American Civil Liberties Union (ACLU) [advocacy website], which has consistently opposed the use of unmanned targeting, sent a letter [text, PDF] to President Barack Obama Wednesday, urging an end to the program.

Last month, State Department Legal Adviser [official website] Harold Koh [academic profile] defended the legality [JURIST report] of the use of unmanned drones. Earlier in March, the ACLU filed suit [JURIST report] seeking information related to the US government's use of unmanned drones. The ACLU alleges that the drones have been used by the military and CIA for unlawful killings in Afghanistan, Iraq, and Pakistan. The ACLU also cites troubling reports indicating that US citizens may be targeted and killed by unmanned drones. In October, UN Special Rapporteur on extrajudicial, summary or arbitrary executions Philip Alston [official website] noted that the use of unmanned drones by the US to carry out attacks in Pakistan and Afghanistan may be illegal [JURIST report]. Alston said, "[t]he 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." Alston criticized the US policy in a report to the UN General Assembly's human rights committee that was presented as part of a larger demand that no state be free from accountability.




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House subcommittee examines legality of unmanned drone strikes
Jaclyn Belczyk on April 28, 2010 3:27 PM ET

[JURIST] A US subcommittee heard testimony Wednesday on the use of unmanned predator drone strikes [JURIST news archive]. The National Security and Foreign Affairs Subcommittee of the House Committee on Oversight and Government Reform [official websites] held a hearing [materials] on the legality of unmanned targeting. In his opening remarks [text, PDF], subcommittee chair John Tierney (D-MA) [official website] said:


The use of unmanned weapons to target individuals - and, for that matter, the targeting of individuals in general - raises many complex legal questions. We must examine who can be a legitimate target, where that person can be legally targeted, and when the risk of collateral damage is too high. We must ask whether it makes a difference if the military carries out an attack, or whether other government entities such as the Central Intelligence Agency may legally conduct such attacks. We must ensure that the Administration's understanding of the authorities granted to it by Congress do not exceed what Congress intended.

The American Civil Liberties Union (ACLU) [advocacy website], which has consistently opposed the use of unmanned targeting, sent a letter [text, PDF] to President Barack Obama Wednesday, urging an end to the program.

Last month, State Department Legal Adviser [official website] Harold Koh [academic profile] defended the legality [JURIST report] of the use of unmanned drones. Earlier in March, the ACLU filed suit [JURIST report] seeking information related to the US government's use of unmanned drones. The ACLU alleges that the drones have been used by the military and CIA for unlawful killings in Afghanistan, Iraq, and Pakistan. The ACLU also cites troubling reports indicating that US citizens may be targeted and killed by unmanned drones. In October, UN Special Rapporteur on extrajudicial, summary or arbitrary executions Philip Alston [official website] noted that the use of unmanned drones by the US to carry out attacks in Pakistan and Afghanistan may be illegal [JURIST report]. Alston said, "[t]he 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." Alston criticized the US policy in a report to the UN General Assembly's human rights committee that was presented as part of a larger demand that no state be free from accountability.





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Supreme Court considers release of names on same-sex marriage petition
Jaclyn Belczyk on April 28, 2010 3:14 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in Doe #1 v. Reed [oral arguments transcript, PDF; JURIST report] on whether the First Amendment allows a state to compel the release of identity information about petition signers. The case arose over an order to publish the names of those who signed a Washington state petition to overturn a state law [JURIST report] giving same-sex partners the same rights as married partners. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that the names should be released, but the Supreme Court issued a temporary stay [JURIST report] in October. Counsel for the petitioners argued that, "[n]o person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations." Counsel for the state of Washington argued that the names can be made public. The court appeared skeptical of petitioners' arguments, with Justice Antonin Scalia saying "[d]emocracy requires a certain amount of civic courage."



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Oklahoma governor vetoes firearm legislation
Tara Tighe on April 28, 2010 2:45 PM ET

[JURIST] Oklahoma Governor Brad Henry [official profile] on Tuesday vetoed [press release] legislation [SB 1685 text, RTF] that would have exempted buyers of Oklahoma-made guns from several regulatory precautions including federal criminal background checks. Henry believes that the proposed legislation would "endanger citizens and law enforcement officers" by abolishing "common sense regulations" like background checks and giving criminals easy access to a wide array of weapons. Henry also cited constitutional concerns. Because there is no way to ensure that Oklahoma-manufactured weapons will remain in the state, Henry said that the proposed legislation would likely be seen as violating the Commerce Clause [Cornell LII backgrounder] and would therefore be declared unconstitutional if it were challenged in court. State Senator Randy Brogdon, an advocate for the bill, said that he was disappointed [press release] to learn that Henry had vetoed the legislation. Brogdon challenged Henry's assertions that the law would give criminals easy access to firearms and went on to claim that the legislation would actually have "stopped further federal attempts to erode our Constitutional right to protect ourselves and our families." It remains to be seen whether supporters of the bill in the state senate will garner the necessary support to override the veto.

The rights of states and municipalities to regulate firearms under the Second Amendment [text] of the US Constitution have become controversial. Last month, a federal judge ruled that firearms regulations [text] in Washington, DC, including a ban on assault weapons and a prohibition on large capacity ammunition feeding devices [ATF backgrounder], do not violate the Second Amendment [JURIST report]. In upholding the regulations, the judge cited the 2008 Supreme Court ruling in District of Columbia v. Heller [JURIST report], which struck down an outright ban on handgun ownership in Washington, DC. The Supreme Court recently heard arguments [JURIST report] in McDonald v. City of Chicago [oral arguments transcript, PDF] to determine whether the Second Amendment right to keep and bear arms applies to the states, and not just the District of Columbia.






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Russia makes public 1940 Katyn massacre documents
Jaclyn Belczyk on April 28, 2010 2:42 PM ET

Photo source or description
[JURIST] The Russian government on Wednesday made public [press release] documents [materials, in Russian] relating to the 1940 Katyn Massacre [Britannica backgrounder; JURIST news archive] in which 20,000 Poles were killed by the USSR. While the documents were previously available to historians, political officials, and victims' families, this is the first time that copies of the original documents have been made available to the general public. Russian President Dmitry Medvedev [official website, in Russian] chose to make the documents public as relations between Russian and Poland have apparently improved following the April 10 plane crash [JURIST report] that killed Poland's president. Among the documents is a 1940 note signed by Joseph Stalin ordering the execution of Polish "nationalists and counter-revolutionaries."

The 1940 killings have long been a point of tension between the two governments, with Russia originally blaming the Nazis and only acknowledging responsibility in 1990. In February, the Polish government joined a class-action lawsuit [JURIST report] against Russia filed in the European Court of Human Rights (ECHR) [official website] by 13 Polish citizens who are relatives of the victims. In January 2009, victims' relatives were denied an appeal [JURIST report] to the Russian Supreme Court [official website, in Russian] to reopen investigations into the killings. The court reasoned that the Soviet-era criminal code to be applied to the killings places a 10-year statute of limitations on the proceedings.




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Supreme Court considers release of names on same-sex marriage petition
Jaclyn Belczyk on April 28, 2010 2:16 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in Doe #1 v. Reed [oral arguments transcript, PDF; JURIST report] on whether the First Amendment allows a state to compel the release of identity information about petition signers. The case arose over an order to publish the names of those who signed a Washington state petition to overturn a state law [JURIST report] giving same-sex partners the same rights as married partners. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that the names should be released, but the Supreme Court issued a temporary stay [JURIST report] in October. Counsel for the petitioners argued that, "[n]o person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations." Counsel for the state of Washington argued that the names can be made public. The court appeared skeptical of petitioners' arguments, with Justice Antonin Scalia saying "[d]emocracy requires a certain amount of civic courage."






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China lifts HIV/AIDS entry ban
Brian Jackson on April 28, 2010 1:33 PM ET

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[JURIST] The Chinese government announced Tuesday that it has lifted a ban on entry [Xinhua report] into that country for individuals with HIV/AIDS and other communicable diseases. The ban was originally implemented under the Frontier Health and Quarantine Law and the Law on Control of the Entry and Exit of Aliens [texts], both passed in 1987. The ban had temporarily been lifted for international events, such as the 2008 Summer Olympic Games, but the inconvenience that resulted, as well as the increased knowledge of how HIV/AIDS is spread, were reasons cited by the government as factors for changing the law. China's action drew praise [press release] from the Joint UN Programme on HIV/AIDS [official website], which urged the 51 countries and areas that still bar entry to individuals with HIV/AIDS to follow China's lead in overturning their bans. The lifting of the ban does not enjoy widespread support from Chinese civilians, however, with 84 percent supporting keeping the ban in place [China Daily report].

Until recently, the US was one of the nations with an entry ban for individuals with HIV/AIDS. That ban was lifted in January [JURIST report] when the Centers for Disease Control [official website] removed HIV/AIDS from its list of communicable diseases of public significance. It was first reported in late November that China was considering lifting the entry ban [JURIST report], ahead of the Shanghai Expo scheduled for May of this year. China had previously relaxed its restrictions on entry [JURIST report] in 2007, ahead of the 2008 Olympic Games.




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Russia court bans neo-Nazi group for extremist ideology
Jaclyn Belczyk on April 28, 2010 1:27 PM ET

[JURIST] The Moscow City Court ruled Tuesday that the Slavic Union (SS) violates Russia's extremism laws, banning the organization. The SS, whose initials are the same as the Nazi paramilitary, was one of Russia's largest neo-Nazi [JURIST news archive] organizations. City prosecutors initiated the action [Moscow Times report], accusing the group of promoting nationalistic supremacy similar to the ideology of Nazi Germany. SS leader Dmitry Dyomushkin says he plans to appeal the ban [ITAR-TASS report]. He warned that the ban will anger radical ultranationalists into retaliation [AP report].

Earlier this month, a Moscow City Court judge known for presiding over cases involving neo-Nazi groups was killed [JURIST report] while leaving his apartment. Russia is currently struggling to limit hate crimes, which decreased in 2009 [JURIST report] according to the SOVA Center [advocacy website]. Last month, the Russian Prosecutor General's Office [official website, in Russian] banned Adolf Hitler's book Mein Kampf [Britannica backgrounder], finding it in violation of laws against extremism. In December, the Russian Supreme Court [official website, in Russian] upheld [JURIST report] a lower court decision to shut down the Taganrog Jehovah's Witness congregation and ban the distribution of 34 Jehovah's Witness publications, finding both the Jehovah's Witness congregation and the publications to be extremist. In 2007, the Russian parliament approved legislative amendments to change the prevailing definition of extremist crime [JURIST report] in Russian law to include activities taken for "political or ideological hatred."






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Japan abolishes statute of limitations for murder
Zach Zagger on April 28, 2010 12:50 PM ET

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[JURIST] The Japanese Diet on Tuesday approved a bill abolishing the statute of limitations for murder. The new law abolishes the statute of limitations for serious capital crimes, which was previously 25 years, and extends [Daily Yomiuri report] the limitation period for sexual assault and other crimes resulting in death from 15 to 30 years. The law also doubles prison terms for other crimes resulting in death. Japanese Justice Minister Keiko Chiba utilized the new law [Kyodo News report] Tuesday to keep open an unsolved case from 1995 that was set to expire at midnight. While criminal procedure laws are normally not enacted for at least a week while they are reviewed by the emperor prior to publication, this law was enforced immediately to keep unsolved cases open.

Japan has recently taken steps to reform its criminal procedure system. Last year, Japan held its first jury trial [JURIST report] since the end of World War II, with the Tokyo District Court [official website, in Japanese] convicting Katsuyoshi Fujii of murder. In 2004, the National Diet enacted the Lay Assessor Act [materials, PDF; Ministry of Justice backgrounder], which impanels professional and lay judges to decide and sentence capital cases and cases involving an intentional death. Panels can be made up of three professional judges and six lay judges or one professional judge and four lay judges. For their verdicts to stand, lay judges need the concurrence [BBC report] of at least one professional judge.




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Iraq detainees tortured in secret prison: HRW
Zach Zagger on April 28, 2010 12:31 PM ET

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[JURIST] Iraqi detainees were repeatedly tortured [press release] in a secret prison in Baghdad, Human Rights Watch (HRW) said Tuesday. HRW says that detainees held at the Muthanna facility, run by Iraqi authorities, were hung upside-down, deprived of air, kicked, whipped, beaten, given electric shocks, and sodomized during torture sessions that detainees faced every three to four days. HRW interviewed 42 men who were among 300 transferred out after the Iraq Ministry of Human Rights gained access to the facility, which falls under the authority of the military office of Iraqi Prime Minister Nouri al-Maliki [official website, in Arabic; BBC profile]. The fact that many Sunnis were detained in the facility may reveal growing sectarian tensions within Iraq between the Maliki's Shiite government and Sunni Muslims. Maliki denied [CNN report] the reports of a secret prison, claiming the facility was publicly known and that the reports of abuse are exaggerated.

Earlier this month, it was revealed in a Los Angeles Times report [text] that hundreds of Sunni men were detained without warrant and subjected to torture [JURIST report] in the Muthanna facility. More than 400 men were initially detained in October during sweeps of Nineveh province, an area in which al Qaeda in Iraq (AQI) [GlobalSecurity backgrounder] was active, and transferred to a Baghdad prison due to concerns over corruption in the provincial capitol of Mosul. Maliki created a special committee [JURIST report] in June to investigate alleged abuse and torture in the country's prisons. Comprised of eight members, the committee includes representatives from human rights and judicial government agencies and security ministries. The decision to create the panel came shortly after charges were brought [JURIST report] against 43 Iraqi police officers for human rights abuses, warrantless arrests, and bribery allegations. The violations were discovered by an investigatory committee formed by Iraqi Interior Minister Jawad al-Bolani [JURIST news archive].




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UN Security Council urges international maritime piracy tribunal
Brian Jackson on April 28, 2010 12:26 PM ET

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[JURIST] The UN Security Council on Tuesday unanimously approved Resolution 1918 [press release], calling on member states to criminalize piracy under their domestic laws and urging Secretary-General Ban Ki-moon [official website] to consider an international tribunal for prosecuting piracy. In the resolution, the Security Council noted its previous resolutions regarding piracy, particularly piracy off the coast of Somalia [JURIST news archive], as well as the continuing security issues posed by piracy. The ineffectual nature of past resolutions, combined with the lack of action by the Somali government and the difficulties faced by Kenya, one of the few African nations to attempt to prosecute piracy, may have led to the inclusion of the request that the secretary-general investigate options for UN prosecution of piracy. Russia, a permanent member of the Security Council, had previously proposed [APA report] that the UN establish a special court for Somali pirates. The resolution asks that the Secretary General's report on prosecutorial options be completed within three months.

The Security Council resolution comes the same week the UN announced that a trust fund established to combat piracy will be funding five projects [UN News Centre report] aimed at piracy committed in the waters around Somalia. The same day, unsealed indicments revealed that the US had filed charges against 11 Somali pirates [JURIST report] in the US District Court for the Eastern District of Virginia. Earlier this month, Kenya announced that it would no longer accept referred piracy cases [JURIST report], which have overburdened its judicial system, an announcement that may have spurred the Security Council to act. In January, the International Chamber of Commerce released a report indicating that maritime piracy had reached its highest levels since 2003 [JURIST report].




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China lifts HIV/AIDS entry ban
Brian Jackson on April 28, 2010 12:21 PM ET

[JURIST] The Chinese government announced Tuesday that it has lifted a ban on entry [Xinhua report] into that country for individuals with HIV/AIDS and other communicable diseases. The ban was originally implemented under the Frontier Health and Quarantine Law and the Law on Control of the Entry and Exit of Aliens [texts], both passed in 1987. The ban had temporarily been lifted for international events, such as the 2008 Summer Olympic Games, but the inconvenience that resulted, as well as the increased knowledge of how HIV/AIDS is spread, were reasons cited by the government as factors for changing the law. China's action drew praise [press release] from the Joint UN Programme on HIV/AIDS [official website], which urged the 51 countries and areas that still bar entry to individuals with HIV/AIDS to follow China's lead in overturning their bans. The lifting of the ban does not enjoy widespread support from Chinese civilians, however, with 84 percent supporting keeping the ban in place [China Daily report].

Until recently, the US was one of the nations with an entry ban for individuals with HIV/AIDS. That ban was lifted in January [JURIST report] when the Centers for Disease Control [official website] removed HIV/AIDS from its list of communicable diseases of public significance. It was first reported in late November that China was considering lifting the entry ban [JURIST report], ahead of the Shanghai Expo scheduled for May of this year. China had previously relaxed its restrictions on entry [JURIST report] in 2007, ahead of the 2008 Olympic Games.






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Japan abolishes statute of limitations for murder
Zach Zagger on April 28, 2010 12:11 PM ET

[JURIST] The Japanese Diet on Tuesday approved a bill abolishing the statute of limitations for murder. The new law abolishes the statute of limitations for serious capital crimes, which was previously 25 years, and extends [Daily Yomiuri report] the limitation period for sexual assault and other crimes resulting in death from 15 to 30 years. The law also doubles prison terms for other crimes resulting in death. Japanese Justice Minister Keiko Chiba utilized the new law [Kyodo News report] Tuesday to keep open an unsolved case from 1995 that was set to expire at midnight. While criminal procedure laws are normally not enacted for at least a week while they are reviewed by the emperor prior to publication, this law was enforced immediately to keep unsolved cases open.

Japan has recently taken steps to reform its criminal procedure system. Last year, Japan held its first jury trial [JURIST report] since the end of World War II, with the Tokyo District Court [official website, in Japanese] convicting Katsuyoshi Fujii of murder. In 2004, the National Diet enacted the Lay Assessor Act [materials, PDF; Ministry of Justice backgrounder], which impanels professional and lay judges to decide and sentence capital cases and cases involving an intentional death. Panels can be made up of three professional judges and six lay judges or one professional judge and four lay judges. For their verdicts to stand, lay judges need the concurrence [BBC report] of at least one professional judge.






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Pentagon releases military commissions manual
Jaclyn Belczyk on April 28, 2010 11:56 AM ET

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[JURIST] The US Department of Defense (DOD) [official website] on Tuesday released a manual [text, PDF] for military commission [JURIST news archive] procedures under the Military Commissions Act of 2009 [text, PDF]. The manual establishes the rules of evidence and procedure for the commissions, allowing for the admission of certain hearsay evidence and defining "material support" for terrorism. The manual's release came one day before a hearing [JURIST report] in the case of Canadian Guantanamo Bay [JURIST news archive] detainee Omar Khadr [DOD materials; JURIST news archive] on whether his alleged confessions may be used as evidence. The hearing was postponed briefly Wednesday morning to allow Khadr's lawyers time to review the new manual and was set to resume Wednesday afternoon.

Khadr's military commission trial, set to begin in July, will be the first under the Obama administration, which suspended military commissions shortly after the January 2009 inauguration. In February, Khadr's lawyers filed an emergency motion [JURIST report] in the Federal Court of Canada [official website] challenging the decision of the Canadian government not to seek his repatriation from the US [JURIST report]. The Supreme Court of Canada ruled [JURIST report] in January that the government was not obligated to seek Khadr's return to Canada despite having violated his rights under section 7 of the Canadian Charter of Rights and Freedoms [text]. 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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Pentagon releases military commissions manual
Jaclyn Belczyk on April 28, 2010 11:03 AM ET

[JURIST] The US Department of Defense (DOD) [official website] on Tuesday released a manual [text, PDF] for military commission [JURIST news archive] procedures under the Military Commissions Act of 2009 [text, PDF]. The manual establishes the rules of evidence and procedure for the commissions, allowing for the admission of certain hearsay evidence and defining "material support" for terrorism. The manual's release came one day before a hearing [JURIST report] in the case of Canadian Guantanamo Bay [JURIST news archive] detainee Omar Khadr [DOD materials; JURIST news archive] on whether his alleged confessions may be used as evidence. The hearing was postponed briefly Wednesday morning to allow Khadr's lawyers time to review the new manual and was set to resume Wednesday afternoon.

Khadr's military commission trial, set to begin in July, will be the first under the Obama administration, which suspended military commissions shortly after the January 2009 inauguration. In February, Khadr's lawyers filed an emergency motion [JURIST report] in the Federal Court of Canada [official website] challenging the decision of the Canadian government not to seek his repatriation from the US [JURIST report]. The Supreme Court of Canada ruled [JURIST report] in January that the government was not obligated to seek Khadr's return to Canada despite having violated his rights under section 7 of the Canadian Charter of Rights and Freedoms [text]. 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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Supreme Court rules on religious display on public land
Jaclyn Belczyk on April 28, 2010 10:43 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday ruled [opinion, PDF] in Salazar v. Buono [Cornell LII backgrounder; JURIST report] that the lower courts were wrong to ban government from transferring public land containing a religious symbol to a private entity. The court also held that an individual has Article III [text] standing to bring a suit under the Establishment Clause [Cornell LII backgrounder] of the First Amendment challenging the display of a religious symbol on government land. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that the transfer of the public land to a private entity is not a permissible accommodation. Authoring the plurality opinion for a deeply divided court, Justice Anthony Kennedy reversed the decision below:
Respect for a coordinate branch of Government forbids striking down an Act of Congress except upon a clear showing of unconstitutionality. The same respect requires that a congressional command be given effect unless no legal alternative exists. Even if, contrary to the congressional judgment, the land transfer were thought an insufficient accommodation in light of the earlier finding of religious endorsement, it was incumbent upon the District Court to consider less drastic relief than complete invalidation of the land-transfer statute.
Justice Samuel Alito filed a concurring opinion. He would not have remanded the case to the district court. Justice Antonin Scalia also filed a concurring opinion, joined by Justice Clarence Thomas. Scalia believes that the plaintiff lacks standing. Justice John Paul Stevens filed a dissenting opinion, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justice Stephen Breyer filed a separate dissent.

The dispute concerns a Latin cross on a rock outcropping in the Mojave National Preserve [official website]. The display of the cross on public property had already been found in violation of the Establishment Clause, so the government sought to transfer the portion of land on which the cross was located to a private entity.




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Canada parliament can demand uncensored detainee documents from government
Jaclyn Belczyk on April 28, 2010 10:36 AM ET

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[JURIST] Canadian House of Commons Speaker Peter Milliken [official website] ruled [text, PDF] Tuesday that members of Parliament have the right to seek uncensored Afghan detainee documents from the government of Prime Minister Stephen Harper [official websites]. The historic ruling is a significant victory for opposition parties over Harper's minority Conservative government. In his ruling, Milliken said:
The Chair must conclude that it is within the powers of the House of Commons to ask for the documents sought in the December 10 order it adopted. Now, it seems to me, that the issue before us is this: is it possible to put into place a mechanism by which these documents could be made available to the House without compromising the security and confidentiality of the information they contain? In other words, is it possible for the two sides, working together in the best interest of the Canadians they serve, to devise a means where both their concerns are met? Surely that is not too much to hope for.
Milliken gave both sides two weeks to reach a compromise. If no agreement can be reached, members of Harper's cabinet, including the ministers of defense, foreign affairs, and justice, could be held in contempt of Parliament. Although the Harper government has indicated its general willingness to comply with the Speaker's ruling, it might yet pass the general issue [Toronto Star report] of executive versus legislative authority on to the Supreme Court of Canada [official website] as a constitutional reference question for its formal determination.

The release of the detainee documents has been highly controversial. Last month, Canadian Justice Minister Rob Nicholson [official profile] announced that former Supreme Court justice Frank Iacobucci [U. Toronto backgrounder] would review documents [JURIST report] detailing Canadian forces' handing of Afghan detainees and the terms of their transfer to Afghan authorities before the documents would be released to Parliament. Nicholson indicated that Iacobucci would report back to Nicholson, who would determine the conditions of disclosure. In December, Parliament passed an order to compel Harper to release the unredacted documents after the Canadian government released [JURIST reports] more than 40 redacted e-mails [text, PDF] sent by Canadian diplomat Richard Colvin to then-foreign minister Peter MacKay [official profile] raising concerns about the torture of transferred detainees. The release of the e-mails came after Colvin testified [JURIST report] before a Commons committee in November that all enemy combatants captured in 2006 and 2007 by Canadian forces were likely tortured upon their transfer to Afghan authorities.




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Iraq detainees tortured in secret prison: HRW
Zach Zagger on April 28, 2010 10:21 AM ET

[JURIST] Iraqi detainees were repeatedly tortured [press release] in a secret prison in Baghdad, Human Rights Watch (HRW) said Tuesday. HRW says that detainees held at the Muthanna facility, run by Iraqi authorities, were hung upside-down, deprived of air, kicked, whipped, beaten, given electric shocks, and sodomized during torture sessions that detainees faced every three to four days. HRW interviewed 42 men who were among 300 transferred out after the Iraq Ministry of Human Rights gained access to the facility, which falls under the authority of the military office of Iraqi Prime Minister Nouri al-Maliki [official website, in Arabic; BBC profile]. The fact that many Sunnis were detained in the facility may reveal growing sectarian tensions within Iraq between the Maliki's Shiite government and Sunni Muslims. Maliki denied [CNN report] the reports of a secret prison, claiming the facility was publicly known and that the reports of abuse are exaggerated.

Earlier this month, it was revealed in a Los Angeles Times report [text] that hundreds of Sunni men were detained without warrant and subjected to torture [JURIST report] in the Muthanna facility. More than 400 men were initially detained in October during sweeps of Nineveh province, an area in which al Qaeda in Iraq (AQI) [GlobalSecurity backgrounder] was active, and transferred to a Baghdad prison due to concerns over corruption in the provincial capitol of Mosul. Maliki created a special committee [JURIST report] in June to investigate alleged abuse and torture in the country's prisons. Comprised of eight members, the committee includes representatives from human rights and judicial government agencies and security ministries. The decision to create the panel came shortly after charges were brought [JURIST report] against 43 Iraqi police officers for human rights abuses, warrantless arrests, and bribery allegations. The violations were discovered by an investigatory committee formed by Iraqi Interior Minister Jawad al-Bolani [JURIST news archive].






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Supreme Court rules on religious display on public land
Jaclyn Belczyk on April 28, 2010 10:07 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday ruled [opinion, PDF] in Salazar v. Buono [Cornell LII backgrounder; JURIST report] that the lower courts were wrong to ban government from transferring public land containing a religious symbol to a private entity. The court also held that an individual has Article III [text] standing to bring a suit under the Establishment Clause [Cornell LII backgrounder] of the First Amendment challenging the display of a religious symbol on government land. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that the transfer of the public land to a private entity is not a permissible accommodation. Authoring the plurality opinion for a deeply divided court, Justice Anthony Kennedy reversed the decision below:


Respect for a coordinate branch of Government forbids striking down an Act of Congress except upon a clear showing of unconstitutionality. The same respect requires that a congressional command be given effect unless no legal alternative exists. Even if, contrary to the congressional judgment, the land transfer were thought an insufficient accommodation in light of the earlier finding of religious endorsement, it was incumbent upon the District Court to consider less drastic relief than complete invalidation of the land-transfer statute.

Justice Samuel Alito filed a concurring opinion. He would not have remanded the case to the district court. Justice Antonin Scalia also filed a concurring opinion, joined by Justice Clarence Thomas. Scalia believes that the plaintiff lacks standing. Justice John Paul Stevens filed a dissenting opinion, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justice Stephen Breyer filed a separate dissent.

The dispute concerns a Latin cross on a rock outcropping in the Mojave National Preserve [official website]. The display of the cross on public property had already been found in violation of the Establishment Clause, so the government sought to transfer the portion of land on which the cross was located to a private entity.





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UN Security Council urges international maritime piracy tribunal
Brian Jackson on April 28, 2010 9:29 AM ET

[JURIST] The UN Security Council on Tuesday unanimously approved Resolution 1918 [press release], calling on member states to criminalize piracy under their domestic laws and urging Secretary-General Ban Ki-moon [official website] to consider an international tribunal for prosecuting piracy. In the resolution, the Security Council noted its previous resolutions regarding piracy, particularly piracy off the coast of Somalia [JURIST news archive], as well as the continuing security issues posed by piracy. The ineffectual nature of past resolutions, combined with the lack of action by the Somali government and the difficulties faced by Kenya, one of the few African nations to attempt to prosecute piracy, may have led to the inclusion of the request that the secretary-general investigate options for UN prosecution of piracy. Russia, a permanent member of the Security Council, had previously proposed [APA report] that the UN establish a special court for Somali pirates. The resolution asks that the Secretary General's report on prosecutorial options be completed within three months.

The Security Council resolution comes the same week the UN announced that a trust fund established to combat piracy will be funding five projects [UN News Centre report] aimed at piracy committed in the waters around Somalia. The same day, unsealed indicments revealed that the US had filed charges against 11 Somali pirates [JURIST report] in the US District Court for the Eastern District of Virginia. Earlier this month, Kenya announced that it would no longer accept referred piracy cases [JURIST report], which have overburdened its judicial system, an announcement that may have spurred the Security Council to act. In January, the International Chamber of Commerce released a report indicating that maritime piracy had reached its highest levels since 2003 [JURIST report].






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Canada parliament can demand uncensored detainee documents from government
Jaclyn Belczyk on April 28, 2010 8:42 AM ET

[JURIST] Canadian House of Commons Speaker Peter Milliken [official website] ruled [text, PDF] Tuesday that members of Parliament have the right to seek uncensored Afghan detainee documents from the government of Prime Minister Stephen Harper [official websites]. The historic ruling is a significant victory for opposition parties over Harper's minority Conservative government. In his ruling, Milliken said:


The Chair must conclude that it is within the powers of the House of Commons to ask for the documents sought in the December 10 order it adopted. Now, it seems to me, that the issue before us is this: is it possible to put into place a mechanism by which these documents could be made available to the House without compromising the security and confidentiality of the information they contain? In other words, is it possible for the two sides, working together in the best interest of the Canadians they serve, to devise a means where both their concerns are met? Surely that is not too much to hope for.

Milliken gave both sides two weeks to reach a compromise. If no agreement can be reached, members of Harper's cabinet, including the ministers of defense, foreign affairs, and justice, could be held in contempt of Parliament. Although the Harper government has indicated its general willingness to comply with the Speaker's ruling, it might yet pass the general issue [Toronto Star report] of executive versus legislative authority on to the Supreme Court of Canada [official website] as a constitutional reference question for its formal determination.

The release of the detainee documents has been highly controversial. Last month, Canadian Justice Minister Rob Nicholson [official profile] announced that former Supreme Court justice Frank Iacobucci [U. Toronto backgrounder] would review documents [JURIST report] detailing Canadian forces' handing of Afghan detainees and the terms of their transfer to Afghan authorities before the documents would be released to Parliament. Nicholson indicated that Iacobucci would report back to Nicholson, who would determine the conditions of disclosure. In December, Parliament passed an order to compel Harper to release the unredacted documents after the Canadian government released [JURIST reports] more than 40 redacted e-mails [text, PDF] sent by Canadian diplomat Richard Colvin to then-foreign minister Peter MacKay [official profile] raising concerns about the torture of transferred detainees. The release of the e-mails came after Colvin testified [JURIST report] before a Commons committee in November that all enemy combatants captured in 2006 and 2007 by Canadian forces were likely tortured upon their transfer to Afghan authorities.





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