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Legal news from Tuesday, May 4, 2010




DC appeals court hears arguments in same-sex marriage case
Jaclyn Belczyk on May 4, 2010 4:12 PM ET

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[JURIST] The District of Columbia Court of Appeals [official website] heard arguments Tuesday on whether DC voters should be allowed to decide on same-sex marriage [JURIST news archive] in the city. While appeals are normally decided by a three-judge panel, the full nine-member court convened for Tuesday's arguments. The appeal comes after a judge for the Superior Court of the District of Columbia [official website] ruled [opinion, PDF] in January that a law allowing Washington DC to recognize same-sex marriages performed elsewhere is not subject to a public referendum [JURIST report]. Reverend Harry Jackson had urged the court to force the DC Council to allow the public to vote on a measure defining marriage as between a man and a woman. The judge refused, affirming a November decision [text, PDF; JURIST report] by the District of Columbia Board of Elections and Ethics [official website], which held that putting the act to a public vote would violate DC's Human Rights Act [text]. Jackson's lawyer argued [AP report] Tuesday that the law should be subject to referendum. DC's solicitor defended the law, arguing that the city's charter doesn't guarantee referendums for specific issues.

DC began recognizing same-sex marriages in March after the US Supreme Court [official website] denied an emergency appeal to block the law from taking effect. DC has now become the sixth US jurisdiction to recognize marriage between same-sex couples, joining five US states: Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire [JURIST reports]. Same-sex civil unions are currently recognized in Washington, New Jersey, Oregon, and Nevada [JURIST reports].




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US lawmakers introduce Internet privacy draft legislation
Jaclyn Belczyk on May 4, 2010 3:24 PM ET

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[JURIST] Two US lawmakers on Tuesday unveiled draft legislation [text, PDF; executive summary, DOC] aimed at protecting Internet privacy. Representatives Rick Boucher (D-VA) and Cliff Stearns (R-FL) [official websites] proposed the bill as a means to regulate how websites track information about visitors and then use that information to target advertising. The bill would require websites to inform visitors how their information will be collected and used and to allow consumers to opt out. Boucher, Chairman of the Subcommittee on Communications, Technology, and the Internet [official website], said the proposed legislation [press release], "confers privacy rights on individuals, informing them of the personal information that is collected and shared about them and giving them greater control over the collection, use and sharing of that information." Boucher and Stearns will solicit feedback on the draft bill for two months before submitting it to committee.

The introduction of the draft legislation comes amid mounting controversy surrounding Internet privacy issues. In February, an Internet privacy advocacy group filed a complaint [text, PDF] with the US Federal Trade Commission (FTC) [official website] alleging that the new Google [corporate website] social networking service Buzz violates privacy laws [JURIST report]. In late January, the Canadian Privacy Commissioner launched a new investigation [JURIST report] into Facebook's default privacy settings. The Canadian Commissioner had previously worked with Facebook [JURIST report] in July and August of 2009 to increase users' control over privacy settings. In August, five users filed suit against Facebook [JURIST report] in US Federal Court in California, alleging that the site violates California privacy laws.




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NYC car bomb suspect to face terrorism charges: Holder
Jaclyn Belczyk on May 4, 2010 2:33 PM ET

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[JURIST] US Attorney General Eric Holder [official website] said Tuesday that Pakistani-born US citizen Faisal Shahzad will face terrorism charges [press release] for his alleged role in an attempted car bombing in New York City's Times Square. Shahzad was taken into custody [press release] Monday evening after an SUV containing explosives was found parked in Times Square Saturday afternoon. Holder said that the investigation is ongoing, but that he "anticipate[s] charging him with an act of terrorism transcending national borders, attempted use of a weapon of mass destruction, use of a destructive device during the commission of another crime, and explosives charges." Shahzad has reportedly admitted to the attempted bombing and claims to have acted alone, but Pakistani authorities have made several arrests [Reuters report] in connection with the case. Shahzad is scheduled to appear in the US District Court for the Southern District of New York [official website] Tuesday afternoon.

Shahzad's arrest comes at a time of controversy over the appropriate venue to try terrorism suspects. Last month, Holder said that the government has not ruled out [JURIST report] prosecuting certain high-profile terror suspects in federal court in New York City. During a hearing [materials] on oversight of the US Department of Justice (DOJ), Holder told the Senate Judiciary Committee [official website] that the government is still considering civilian trials for several high-level terror suspects, including alleged 9/11 conspirator Khalid Sheikh Mohammad [BBC profile; JURIST news archive]. In March, Defense Secretary Robert Gates [official profile] appointed [JURIST report] retired Navy Vice Adm. Bruce MacDonald [official profile] as the convening authority for military commissions [JURIST news archive], leading to speculation that the Obama administration was planning to try the 9/11 conspirators in a military trial. Also in March, Holder defended his decision [JURIST report] to try the suspected terrorists in civilian court. Holder announced [JURIST report] that the alleged conspirators would face civilian criminal trials rather than military tribunals late last year.

4:30 PM ET - Shahzad has been charged [complaint, PDF] with five counts, including attempting to use a weapon of mass destruction, attempting to kill and maim people in the US, using and carrying a destructive device, transporting an explosive device, and attempting to damage building, vehicles, and other property. The complaint also shows that Shahzad admitted to the attempted bombing and said he received bomb-making training in Pakistan.




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Honduras truth commission begins investigating 2009 coup
Jaclyn Belczyk on May 4, 2010 1:43 PM ET

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[JURIST] A Honduran truth and reconciliation commission on Tuesday began investigating the June 2009 coup [JURIST report] that removed Manuel Zelaya [BBC profile; JURIST news archive] from power. The commission is tasked [LAHT report] with understanding what happened before, during, and after the coup and making recommendations for the future. UN Secretary-General Ban Ki-moon [official website] has praised [statement] the creation of the commission as "an important first step toward reconciliation" in Honduras. The commission is also supported by the US government and the Organization of American States (OAS), which initially called for Zelaya's reinstatement [JURIST report]. Zelaya supporters, however, have rejected the commission as a farce [AP report], pledging not to cooperate with investigators. Chair of the five-member commission, former Guatemalan vice president Eduardo Stein, said he hopes to deliver a final report by January 2011.

Last January, Honduran President Porfirio Lobo [NYT profile] granted amnesty to both Zelaya and military leaders accused of participation in the coup. Also in January, the Honduran Supreme Court [official website, in Spanish] exonerated six military leaders [JURIST report] accused of abuse of power for their alleged role in the coup. In December, the Honduran Congress voted 111-14 not to reinstate [JURIST report] Zelaya. His ouster was the result of a judicial order [press release, in Spanish] that asserted Zelaya had broken Honduran law by attempting to conduct a controversial referendum on constitutional reform [JURIST report], contrary to a Supreme Court ruling.




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UK appeals court rejects use of secret evidence in detainee torture case
Daniel Richey on May 4, 2010 12:45 PM ET

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[JURIST] The England and Wales Court of Appeal [official website] ruled [judgment text] Tuesday that state intelligence agencies cannot use secret evidence in their defense against abuse accusations by Binyam Mohamed [BBC profile; JURIST news archive] and several other UK residents who were held at Guantanamo Bay [JURIST news archive]. The judgment overturned a November ruling [judgment text; JURIST report] of a UK high court, which held that defendants MI5 and MI6 [official websites] could utilize a "closed material procedure" that would allow them to rely on certain evidence without disclosing it to opposing counsel or committing it to the public record. The procedure, typically employed in criminal proceedings, is designed to allow concealment of evidence where disclosure would cause "real harm to the public interest," harm the agencies argued would result if they were compelled to publicly adduce state intelligence as part of their defense. Without categorically denying the legitimacy of the procedure, the court questioned whether it could ever be appropriate for the purpose of civil litigation:
[T]he principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim, unless (perhaps) all parties to the claim agree otherwise ... this principle represents and irreducible minimum requirement of an ordinary civil trial.
UK civil rights group Liberty [advocacy website] praised the ruling [press release], saying, "the Court of Appeal has sent the strongest signal to the security establishment that it cannot play fast and loose with the rule of law."

In February, the England and Wales Court of Appeal ruled [JURIST report] that the government must disclose several paragraphs [text] detailing the allegations of Mohamed's mistreatment that were previously omitted from an earlier ruling in his criminal trial. Mohamed was returned to the UK in 2009, four months after charges against him were dismissed [JURIST reports]. He had held at Guantanamo Bay for four years on suspicion of conspiracy to commit terrorism [JURIST report].




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India prosecutors seeking death penalty in Mumbai terror trial
Sarah Paulsworth on May 4, 2010 12:08 PM ET

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[JURIST] Indian prosecutors on Tuesday argued for the death penalty for Mohammad Ajmal Amir Kasab [NDTV profile], the lone gunmen to survive the three-day siege of Mumbai [BBC backgrounder; JURIST news archive] in November 2008 that killed 166. Kasab was convicted [JURIST report] of murder and waging war against India on Monday for his role in the terrorist attack, which was allegedly coordinated by Pakistani militant group Lashkar-e-Taiba (LeT) [CFR backgrounder]. The prosecution cited eight aggravating circumstances [TNN report] against Kasab, who will be sentenced [Al Jazeera report] on Thursday. Death sentences in India are carried out by hanging.

Judge ML Tahiliyani, who was specially appointed [PTI report] in January 2009 to preside over the trial of three suspects detained after the attacks, heard closing arguments [JURIST report] in Kasab's case in March. In January, Tahiliyani denied [JURIST report] Kasab's request for an international trial. Kasab claimed that he would not receive a fair trial in India. In December, Kasab withdrew his confession [JURIST report], claiming he was tortured and framed by police. Kasab originally pleaded not guilty last year, but interrupted his trial to confess and change his plea to guilty [JURIST reports] in July. Tahiliyani continued the trial [JURIST report] despite Kasab's confession, ruling that it was incomplete but should be entered into the record. Kasab claimed that he is not the man [Times of India report] seen in a photograph holding an assault rifle in the train station. Kasab testified that he had been arrested by police days before the attacks for being Pakistani and that police shot him to make it look like he had been injured during the attacks.




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Spain accepts second Guantanamo detainee
Carrie Schimizzi on May 4, 2010 11:33 AM ET

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[JURIST] Spain Foreign Minister Miguel Angel Moratinos [official profile] announced Tuesday that the country has accepted [statement, PDF; in Spanish] its second Guantanamo Bay [JURIST news archive] detainee. The man, a Yemeni citizen, arrived in Spain Tuesday and will be given residency and work permits. This is the second of five detainees that Spain has agreed to accept [JURIST report]. Spain had previously agreed [JURIST report] to accept only two detainees, one Yemeni and one Palestinian, in response to a June request [AFP report] by the Obama administration. The first Guantanamo detainee, a Palestinian, was transferred [JURIST report] to Spain in February.

The Obama administration continues its push to close the Guantanamo Bay facility, despite missing its self-imposed one-year deadline in January. The administration has run into several hurdles in closing the prison, including opposition from members of Congress and the suspension of detainee transfers to Yemen [JURIST report]. Spain is part of a growing list of countries that have recently accepted transfers, including Latvia, Switzerland, Slovakia, Afghanistan, Palau, Bermuda, Algeria, and Somaliland [JURIST reports].

3:50 PM ET - The US Department of Defense [official website] has announced that a second detainee was transferred Monday to Bulgaria [press release].




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Ninth Circuit rules removing headscarf in holding cell does not violate rights
Carrie Schimizzi on May 4, 2010 10:40 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Monday that a Muslim woman's religious rights were not violated by police officers when she was forced to remove her religious headscarf [JURIST news archive] while being detained in a holding cell. Souhair Khatib had argued that being forced to remove her hijab was a violation of her religious rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) [text], which prohibits governments from imposing regulations upon inmates that engender religious discrimination. Khatib argued that she suffered embarrassment and her religious beliefs were compromised by being forced to remove her headscarf in front of strangers. The officers had required that she remove her hijab due to a security risk. In a 2-1 decision, the appeals court panel ruled that a holding cell is not a "prison, jail or pretrial detention facility" for protection under the law. This decision upheld the ruling [opinion, PDF] of the US District Court of the Central District of California [official website].

Last month, a judge in the US District Court for the Eastern District of Michigan [official website] dismissed [JURIST report] a lawsuit against a Michigan judge who ordered a Muslim woman to remove her headscarf in court. The suit [complaint, PDF] was filed in August by the Council on American-Islamic Relations (CAIR) [advocacy website] on behalf of Raneen Albaghdady against Judge William Callahan of the Wayne County Circuit Court. Callahan has a policy against hats in his courtroom, and when he asked Albaghdady to remove her headscarf, or hijab, she did so without objection. In 2008, a Muslim woman in Georgia was arrested and ordered to serve 10 days in jail [JURIST report] for contempt of court after she refused to remove her headscarf, upon entering a security checkpoint in an Atlanta courtroom.




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Argentina ex-military leader facing additional murder charges
Jaclyn Belczyk on May 4, 2010 9:17 AM ET

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[JURIST] Former Argentine military junta leader Jorge Rafael Videla [Trial Watch profile; JURIST news archive] was charged Monday with an additional 49 counts of murder, kidnapping, and torture for crimes allegedly committed during Argentina's "Dirty War" [JURIST news archive]. The charges are the latest in the ongoing investigation against Videla, who led Argentina as de facto president from from 1976 to 1981. The additional charges stem from the identification of 40 bodies [AFP report] in Buenos Aires last year, including that of Argentina-born German citizen Rolf Stawowiok. In January, a German court issued an arrest warrant [JURIST report] for Videla in connection with Stawowiok's death, although German prosecutors believe it is unlikely he will be extradited. No trial date has been set for the new charges.

Videla has been in prison since 2008 while an investigation is underway for his role in the abduction of children born to political prisoners and forced disappearance victims during Argentina's Dirty War. A court revoked the house arrest conditions he had been granted in 1998 when the investigation began. Previously, he had served five years of a life sentence for human rights violations committed during his term in power, until in 1990 he was pardoned by then-president Carlos Menem. In 2006, a federal judge ruled that the presidential pardon was unconstitutional [JURIST report]. Italy has also requested [JURIST report] Videla's extradition to prosecute him for the deaths and forced disappearances of Italian citizens during the Dirty War. During the period Videla was head of the military junta, an estimated 90,000 civilians were killed or disappeared.




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