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Legal news from Friday, May 28, 2010




US House approves defense spending bill containing 'Don't Ask Don't Tell' repeal
Jaclyn Belczyk on May 28, 2010 4:38 PM ET

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[JURIST] The US House of Representatives [official website] voted 229-186 [roll call] Friday to approve a defense spending bill [HR 5136 materials] containing an amendment to repeal the military's controversial "Don't Ask Don't Tell" policy [10 USC § 654; JURIST news archive]. The amendment [text, PDF], added Thursday on a vote of 234-194 [roll call], would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention, and family readiness. In order for the repeal to take effect after the review's completion, the president, secretary of defense, and chairman of the joint chiefs of staff must sign and transmit to congressional defense committees a certification stating that the review has been considered and the recommended policy changes have been implemented. Defense Secretary Robert Gates [official profile] spoke directly to troops [transcript; video] Friday, assuring them that the policy will only be revealed after a thorough analysis. The $700 billion National Defense Authorization Act will now go before the Senate, where it could face strong opposition from Republican lawmakers. The bill also contains a provision to bar the use of funds [JURIST report] to transfer or release Guantanamo Bay [JURIST news archive] detainees.

The compromise repeal provision was also approved Thursday by the Senate Armed Services Committee [official website. The Obama administration backed the proposal [JURIST report] on Monday, despite earlier opposition to passing a repeal before the completion of a comprehensive review. Gates had initially urged Congress to delay repealing the ban until the completion of the review, but has backed the amended repeal legislation [POLITICO report]. Chairman of the Joint Chiefs of Staff Adm. Mike Mullen [official profile] has also backed the compromise legislation. A CNN poll [results, PDF] released Tuesday found that 78 percent of American adults believe that homosexuals should be able to serve openly in the military. In March, Gates announced changes to the enforcement [JURIST report] of the "Don't Ask Don't Tell" policy to make it more difficult to expel openly gay service members from the military. The repeal of the controversial "Don't Ask, Don't Tell" policy has been an important issue for President Barack Obama since he took office, and its inclusion in the State of Union Address [JURIST report] reaffirmed it as a top priority for the administration.




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India court charges ex-MP in connection with anti-Sikh riots
Dwyer Arce on May 28, 2010 3:01 PM ET

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[JURIST] An Indian court on Friday charged Sajjan Kumar [official profile], a former member of the Parliament of India in the ruling Congress Party [official websites], in connection with the 1984 anti-Sikh riots [TOI backgrounder]. Additional Sessions Judge Sunita Gupta of the Northeast District of Delhi [official website] charged [TOI report] Kumar and five others with conspiracy, murder, dacoity, and promoting enmity between communities under the Indian Penal Code [text]. The court found sufficient evidence to presume that a conspiracy and speeches made by Kumar incited the riots. The court is scheduled to begin hearing witnesses July 1. Kumar and his co-defendants pleaded not guilty, and, if convicted, they could face the death penalty.

The case was transferred [PTI report] from a special judge in the Central Bureau of Investigation [official website] to the Delhi court in April. The riots were precipitated by the assassination of then prime minister Indira Gandhi in 1984 by two of her Sikh bodyguards in retaliation for Operation Blue Star [BBC backgrounders], a military campaign against Sikh militants. The riots spanned three days in October and November 1984, mostly affecting communities in Delhi, and leaving thousands of Sikhs dead.




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DC Circuit refuses evidentiary hearing for Uighur detainees
Sarah Miley on May 28, 2010 2:33 PM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Friday refused to order a new evidentiary hearing [opinion, PDF] in the case of five Chinese Muslim Uighurs detained at Guantanamo Bay [JURIST news archives]. Instead, in a per curiam decision, the court reinstated its original opinion, which gives political branches exclusive power in determining the release of non-citizens being held by the federal government. In April, the Supreme Court ordered the circuit court to reconsider [JURIST report] Kiyemba v. Obama [docket; CCR backgrounder] in light of the fact that each of the remaining Uighurs has received an offer of resettlement by another country. In response, the circuit court denied the petitioners' request to remand the case to the district court [JURIST report] for an evidentiary hearing on whether any of the resettlement offers were "appropriate," holding that it was in the power of the political branches to determine whether a country is appropriate for resettlement. The court further explained that even if the detainees had good reason to reject the resettlement offers, they still possessed no right to be released into the US:
In seven separate enactments - five of which remain in force today - Congress has prohibited the expenditure of any funds to bring any Guantanamo detainee to the United States. Petitioners say these statutes, which clearly apply to them, violate the Suspension Clause of the Constitution. But the statutes suspend nothing: petitioners never had a constitutional right to be brought to this country and released. Petitioners also argue that the new statutes are unlawful bills of attainder. The statutory restrictions, which apply to all Guantanamo detainees, are not legislative punishments; they deprive petitioners of no right they already possessed.
The Constitution Project [advocacy website], a bipartisan think tank focusing on constitutional issues, immediately denounced the judgment [press release]. The group criticized the court's ruling for being too broad on the issue of the judiciary's role the release of detainees. Authoring a separate concurring opinion, Circuit Judge Judith Rogers, agreed with the Constitution Project's assertion that the ruling was too broad, but held that there was no role for the judiciary in this case because the five Uighurs "hold the keys to their release from Guantanamo. All they must do is register their consent" to the proposed resettlement offers.

The DC circuit court's ruling came in a case informally referred to as Kiyemba I, which is separate from a different suit filed by the Uighur detainees, known as Kiyemba II. In March, the Supreme Court declined to rule [JURIST report] in Kiyemba II, on certain issues surrounding the transfer of Guantanamo Bay detainees. Lawyers for four Uighurs detained at Guantanamo were appealing [JURIST report] an April 2009 ruling [opinion, PDF; JURIST report] by the DC circuit court, which held that US courts cannot prevent the government from transferring Guantanamo detainees to foreign countries on the grounds that detainees may face prosecution or torture in the foreign country. Of the 22 Uighurs originally detained at Guantanamo Bay, 17 have accepted offers of relocation to other countries. Two Uighurs were transferred to Switzerland, six to Palau, four to Bermuda and five to Albania [JURIST reports].




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France appeals court denies Noriega bail request
Sarah Miley on May 28, 2010 12:58 PM ET

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[JURIST] The Paris Court of Appeals [official website] on Friday denied a request by former Panamanian dictator Manuel Noriega [BBC backgrounder; JURIST news archive] to be released from jail while awaiting his trial next month. Noriega claimed that he is too well-known to be a flight risk and that because of his partial paralysis and poor health, he is not receiving adequate care in Paris's La Sante prison. The court rejected his appeal, remanding him to custody. Noriega was extradited [JURIST report] to France last month by the US, where he had served a 17-year sentence on drug charges. Noriega faces money laundering charges in France for allegedly laundering $3 million in drug profits by purchasing property in Paris. His trial is set to begin [AFP report] on June 28 and will last for three days.

Last month, the French Justice Ministry denied [JURIST report] Noriega's request to be treated as a prisoner of war (POW). Justice Ministry spokesperson Guillaume Didier said that Noriega will not be treated as a POW [AFP report] because the charges are based on breaches of common law not related to military service. Earlier that week, Panamanian President Ricardo Martinelli [official profile, in Spanish] said that his government will seek the Noriega's extradition [JURIST report] to face charges of human rights violations in Panama. Noriega had fought extradition [JURIST report] from the US since 2007. In March, the US Supreme Court declined to reconsider [JURIST report] Noriega's petition to stop the extradition process. Noriega was already sentenced in absentia [Reuters report] to 10 years in jail by a French court in 1999, but under French law is entitled to a new trial.




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Ninth Circuit upholds Arizona felon voter disenfranchisement law
Dwyer Arce on May 28, 2010 11:33 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Thursday upheld [opinion, PDF] Arizona laws barring former felons from voting until the completion of probation and the payment of outstanding fines. The Arizona Constitution [text] prohibits those convicted of felonies from voting, and state statute sets out the requirements of re-enfranchisement. The plaintiffs in the case brought the action under 42 USC s. 1983 [text], alleging that the Equal Protection Clause [Cornell LII backgrounder] of the US Constitution [text] only allows disenfranchisement for common law felonies. Plaintiffs also argued that the constitutional prohibition against poll taxes [text] was violated. The opinion, written by retired Supreme Court Justice Sandra Day O'Connor, sitting with authorization under 28 USC s. 294(a) [text], concluded:
The Fourteenth Amendment permits States to disenfranchise felons, regardless of whether their offenses were recognized as felonies at common law. Requiring felons to satisfy the terms of their sentences before restoring their voting rights is rationally related to a legitimate state interest, and does not violate any of the various constitutional provisions plaintiffs rely upon.
O'Connor went on to dismiss the alleged poll tax violations because plaintiffs did not lose their right to vote "because they failed to pay a poll tax; it was abridged because they were convicted of felonies." Without voting rights after their felony convictions, the court held, the plaintiffs did not have a claim.

The Ninth Circuit ruled [opinion, PDF; JURIST report] in January that a Washington law prohibiting felons from voting violated Section 2 of the Voting Rights Act [text]. The Washington law, Article VI, Section 3 of the state constitution [text], stated that, "All persons convicted of infamous crime unless restored to their civil rights and all persons while they are judicially declared mentally incompetent are excluded from the elective franchise." Washington defines [text] an infamous crime as one, "punishable by death in the state penitentiary or imprisonment in a state correctional facility." In issuing its opinion, the Ninth Circuit noted that despite the state's efforts to amend the law to reduce the discriminatory effect, "it does not protect minorities from being denied the right to vote upon conviction by a criminal justice system that Plaintiffs have demonstrated is materially tainted by discrimination and bias." Felon voting rights are varied throughout the US [ProCon backgrounder], with 12 states completely restricting the right to vote depending on the crime committed, while Maine and Vermont allow all felons to vote, including those still serving their prison sentences.




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Australia to seek ICJ whaling injunction against Japan
Sarah Miley on May 28, 2010 11:22 AM ET

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[JURIST] Australian Environmental Protection Minister Peter Garrett [official profile] announced Friday that the Australian government will file suit against Japan [press release] in the International Court of Justice (ICJ) [official website] seeking an injunction against "scientific whaling" in the Southern Ocean. Australia claims that it has exhausted all possible resolutions available through the International Whaling Commission (IWC) [official website], an organization set up to monitor whale conservation under the International Convention for the Regulation of Whaling [text, PDF], and is now forced to take legal action:
Recent statements by whaling countries in the Commission have provided Australia with little cause for hope that our serious commitment to conservation of the world's whales will be reflected in any potential IWC compromise agreement. The Government has always been firm in our resolve that if we could not find a diplomatic resolution to our differences over this issue, we would pursue legal action. The Government's action fulfils that commitment. Australia will remain closely engaged in the IWC process and will continue to work hard in the lead up to and at the IWC meeting in June to pursue our objectives. ... Australia and Japan share a comprehensive strategic, security and economic partnership. ... The Government's action today reflects a disagreement in one element of a relationship that is deep, broad and multi-dimensional. Both Australia and Japan have agreed that, whatever our differences on whaling, this issue should not be allowed to jeopardise the strength and the growth of our bilateral relationship.
Japan's Ministry of Foreign Affairs [official website] called the timing of the lawsuit "regrettable" due to a proposal being developed by the IWC that will allow limited whaling [JURIST report]. Japan defends its scientific whaling activities stating the "lethal research" is allowed under whaling convention. Japan's motives have been heavily criticized by the international community though as the majority of meat from the hunt is sold at supermarkets and restaurants.

Commercial whaling was banned by the IWC in 1986, but Japanese whalers defend their whaling as scientific research because they collect data on the whale's age, diet, and birthing rate, before packaging and selling the meat. The Japanese mostly hunt for minke and finback whales, but have begun to hunt humpback whales, which have reached sustainable levels since being placed on the endangered species list in 1963. On Wednesday, the Tokyo District Court [official website] began the trial [JURIST report] of New Zealand anti-whaling activist Peter Bethune on five criminal charges in connection with boarding a Japanese whaling vessel as part of a protest in the Antarctic. The Japanese court system does not accept pleas before trial, but Bethune has made admission of guilt for four of the charges including trespass, destruction of property, illegal possession of a weapon and obstruction of business. He has denied the assault charge filed against him which stems from allegations that Bethune threw cartons of rancid butter at the vessel and injured a Japanese crewman in the process. If convicted, Bethune could face a prison term ranging from 15-25 years [TVNZ report], but his lawyer has indicated that the prosecutor may seek a sentence of two-and-a-half to three years. A verdict is expected [Daily Yomiuri report] as early as next month.




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Obama announces new regulations stemming from Gulf oil spill
Sarah Miley on May 28, 2010 10:36 AM ET

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[JURIST] US President Barack Obama [official website] held a press conference [transcript] Thursday to announce new regulations to mitigate future oil spill disasters and the current plan of action for resolving the crisis created by the BP Deepwater Horizon oil spill [BBC backgrounder] in the Gulf of Mexico. The government will be suspending several offshore drilling activities including exploration of platform locations in Alaska, pending lease sales in the Gulf and Virginia, and the drilling of 33 deepwater exploratory wells in the Gulf. The government will also suspend the issuance of new permits to drill deepwater wells for six months. Obama stated that increased government regulation in the oil industry was necessary to alter the "cozy and sometimes corrupt" relationship it has built with federal regulators, specifically the Minerals Management Service (MMS) [official website]. The president admitted that even though Department of Interior Secretary Ken Salazar [official profile] has worked hard to reform the once notoriously corrupt MMS, more action is necessary to ameliorate that agency's malfeasance. Responsibilities of the MMS, which include not only providing permits, but also enforcing laws governing oil drilling, will be divided so individuals who permit the drilling will be different from those that are in charge of regulation and enforcement of safety standards. New permits from the MMS will also require a 30-day safety and environmental review. When asked about the resignation of MMS director Elizabeth Birnbaum [official profile], Obama stated that he was not yet aware of the circumstances under which Birnbaum resigned, but that he had given Salazar command of the "top-to-bottom" reformation of the MMS and trusted him to secure a staff which is "operating at the highest level and aren't making excuses when things break down, but are intent on fixing them." Obama closed the press conference by reiterating his commitment to tackle the crisis created by the oil spill.

The US government has struggled to gain political control over the oil spill ever since the severity of the spill and the lack of federal regulation of offshore drilling became public. Last week, Obama signed an executive order establishing an independent commission [JURIST report] to investigate offshore drilling and the Gulf of Mexico oil spill. The bipartisan National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling will be charged with identifying the causes of the BP oil spill and developing options to mitigate future occurrences through laws, regulations and agency reform. The Obama administration has also asked Salazar to conduct a "top-to-bottom" reform of the MMS [speech text] and ordered immediate inspections of all deep water operations in the Gulf. The Deepwater Horizon oil spill was a result of an oil well blowout that caused an explosion 5,000 feet below the surface of the Gulf. The amount of oil spilled into the Gulf is part of an ongoing debate but the resulting oil slick has covered at least 2,500 square miles and has now surpassed the Exxon Valdez [JURIST news archive] as the worst oil spill in US history. The White House is keeping a daily chronology of events [text].




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US Congress advances 'Don't Ask Don't Tell' repeal legislation
Dwyer Arce on May 28, 2010 9:53 AM ET

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[JURIST] The US House of Representatives and the Senate Armed Services Committee [official websites] on Thursday advanced compromise legislation to repeal the military's "Don't Ask Don't Tell" policy [10 USC s. 654; JURIST news archive], sending it to a vote of the full Congress. The compromise would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention, and family readiness. In order for the repeal to take effect after the review's completion, the president, secretary of defense, and chairman of the joint chiefs of staff must sign and transmit to congressional defense committees a certification stating that the review has been considered and the recommended policy changes have been implemented. The House voted 234-194 [roll call], to add the compromise as an amendment to the Military Readiness Enhancement Act of 2010 [texts, PDF], and is expected to vote [CNN report] on the full bill on Friday. The Senate committee voted 16-12 in favor of the amendment. Senator Joe Lieberman (I-CT) [official website], a sponsor of the repeal, praised the committee vote, stating:
Today, the Senate Armed Services Committee took a historic step forward to strengthen our military effectiveness and to begin to end a discriminatory policy that dishonors those patriotic Americans who are willing to defend our country. [The] compromise amendment ... carefully accommodates the recommendations of the Pentagon working group and is consistent with the military’s standards of readiness, effectiveness, unit cohesion, recruiting and retention. My strong belief is that if Americans seek to put their lives on the line to serve this blessed country of ours, we should not deny those patriots that opportunity because of their sexual orientation. The action which the Committee took today makes our country stronger and better.
Senator Jim Webb (D-VA) [official website], the lone Democratic committee member to vote against the amendment, described it as a preemption [press release] of the ongoing comprehensive review of the policy by the Department of Defense [official website], and could be construed as "disrespectful" by some members of the military. The addition of the amendment to the defense spending bill has prompted some Republican lawmakers to threaten to vote against the bill [The Hill report] in its entirety.

The Obama administration on Monday backed the proposal [JURIST report], despite earlier opposition to passing a repeal before the completion of a comprehensive review. Defense Secretary Robert Gates [official profile] had initially urged Congress to delay repealing the ban until the completion of the review, but has backed the amended repeal legislation [POLITICO report]. Chairman of the Joint Chiefs of Staff Adm. Mike Mullen [official profile] has also backed the compromise legislation. A CNN poll [results, PDF] released Tuesday found that 78 percent of American adults believe that homosexuals should be able to serve openly in the military. In March, Gates announced changes to the enforcement [JURIST report] of the "Don't Ask Don't Tell" policy to make it more difficult to expel openly gay service members from the military. The repeal of the controversial "Don't Ask, Don't Tell" policy has been an important issue for President Barack Obama since he took office, and its inclusion in the State of Union Address [JURIST report] reaffirmed it as a top priority for the administration.




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Amnesty annual report decries 'global justice gap'
Dwyer Arce on May 28, 2010 8:49 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Thursday released its 2010 Annual Report [materials; press release], highlighting a "global justice gap" caused by influential governments avoiding accountability for human rights abuses. AI was critical of the actions of the Group of 20 (G20) nations, which it described as having a "particular responsibility to set an example," and called on its members to join the International Criminal Court (ICC) [official websites]. The report stated that world governments had yielded to political pressures and used international organizations and alliances to shield themselves from accountability for violating international human rights standards. The report cited veto use by permanent members of the UN Security Council [official website] to prevent the international community from taking action on rights violations committed by permanent members and their allies. It also cited the failure of the UN Human Rights Council [official website] to address rights violations during the Sri Lankan civil war [JURIST new archive] due to complacency by Sri Lanka's regional allies. In the accompanying press release, the organization elaborated:
Repression and injustice are flourishing in the global justice gap, condemning millions of people to abuse, oppression and poverty. ... Governments must ensure that no one is above the law, and that everyone has access to justice for all human rights violations. Until governments stop subordinating justice to political self-interest, freedom from fear and freedom from want will remain elusive for most of humanity.

The report included criticism of human rights practices from all corners of the world, ranging from the treatment of aboriginal peoples by the Canadian government, to the rise of racism in Europe [JURIST reports] and extrajudicial killings in Latin America. Despite the ongoing failure of governments worldwide to uphold international human rights, the spread of universal jurisdiction [AI backgrounder] and the increasing applicability of international law made 2009 a landmark year for international justice, according to the report. The convictions of Alberto Fujimori and Reynaldo Bignone, the ICC arrest warrant issued for Sudanese President Omar al Bashir, the nearing conclusion of the Special Court for Sierra Leone, and the creation of a human rights body [JURIST reports] by the Association of Southeast Asian Nations were included as reasons for this.

Last year, AI Secretary-General Irene Khan stated that the global economic crisis is exacerbating [JURIST report] the world's human rights failures, urging governments to "invest in human rights as purposefully as they are investing in economic growth." Khan spoke at the release of the 2009 annual report, which says that wealthy nations have overlooked "massive human rights abuses, entrench[ed] poverty and endanger[ed] regional stability," while attempting to assemble economic recovery packages. Previous annual reports, including the 2008 report [JURIST report], have condemned US human rights violations in anti-terror efforts. The 2006 and 2007 reports [JURIST reports] were critical of the US and other "Western democratic states" for attempts "to roll back some fundamental principles of human rights" in their efforts to fight terrorism.




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