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Legal news from Thursday, July 29, 2010

Thailand court issues new arrest warrant for ex-PM
Dwyer Arce on July 29, 2010 3:10 PM ET

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[JURIST] The criminal division of the Thai Supreme Court [GlobaLex backgrounder] on Thursday issued a new arrest warrant for ousted prime minister Thaksin Shinawatra [BBC profile; JURIST news archive]. The warrant comes at the request of the National Anti-Corruption Commission (NACC) [official website], which charges that Thaksin did not report all of his assets to the commission after the February ruling of the Constitutional Court [official website, in Thai] seizing 46.4 billion baht (USD $1.4 billion) [JURIST report] in assets for abuses of power while in office. The Supreme Court also suspended proceedings against Thaksin [Bangkok Post report] until he is arrested, noting that it considered the failure of either Thaksin or a representative to appear in court as an attempt to escape the warrant. Also on Thursday, Thai police recommended terrorism charges [DPA report] against Thaksin and 24 others for their involvement in the recent political violence [JURIST news archive] in Bangkok. Thaksin is considered the figurehead of the pro-democracy protesters known as the red shirts [BBC backgrounder] who protested against Thailand's current government and called for elections. The protests ended in May after protesters surrendered to police [JURIST report].

In May, a lawyer for Thaksin filed an appeal against a previous arrest warrant [JURIST report] issued on charges of terrorism in relation to the protests. Thaksin's lawyer was accompanied by two additional red shirt leaders [Bangkok Post report], who have sworn they will testify that Thaksin was not involved in any acts of terrorism if the court chooses to hear the appeal. The red shirts' protests in the capital's central commercial district paralyzed the country for two months, and Thaksin has been repeatedly accused of organizing and financing the campaign. The former prime minster was removed from power in 2006 [JURIST report] by a military coup and has been living abroad in Cambodia where the government has refused to extradite him [JURIST report] to Thailand for criminal prosecution.

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ACLU urges Obama administration to repudiate Bush-era national security policies
Daniel Richey on July 29, 2010 2:13 PM ET

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[JURIST] The Obama administration is in danger of entrenching some of the most draconian aspects of the Bush administration's controversial national security policy, warns a new report, [text, PDF; press release] from the American Civil Liberties Union (ACLU) [advocacy website] [press release] released Thursday. The report, titled "Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration," concludes that the first 18 months of the Obama White House betray a civil rights record that is "mixed, at best." Though the group concedes that "the Obama administration inherited a legal and moral morass" and has had some early successes reinstating certain civil rights protections undone by the Bush administration, it says that the Obama administration risks legitimizing controversial Bush-era policies through its refusal to take action to actively address the civil rights abuses those policies have perpetrated:
[H]is second full day in office ... President Obama signed a series of executive orders that squarely repudiated some of the most egregious abuses of the Bush administration ... These auspicious first steps toward fulfilling candidate Obama's promise of change ... placed the power and prestige of the presidency behind restoration of the rule of law ... But ... on a range of issues including accountability for torture, [indefinite] detention of terrorism suspects, and use of lethal force against civilians, there is a very real danger that the Obama administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration.
The report emphasizes the administration's failure to break with Bush-era policies relating to accountability and transparency, targeted killing of terrorist suspects, warrantless surveillance, the use of military commissions and other civil rights abuses for which the Bush administration was widely criticized. It urged the administration to restore "the nation's historic commitment to the rule of law."

Last month, the ACLU called [press release; JURIST report] on the Obama administration to stop shielding Bush administration officials from civil suit and criminal prosecution stemming from treatment of detainees in US custody, touching on issues prominently addressed in today's report. Throughout June, the organization publicized previously classified documents detailing the detainee abuses of the Bush administration in honor of Torture Awareness Month [official website]. In April, an ACLU Freedom of Information Act (FOIA) [text] suit resulted in the release [JURIST report] of internal Central Intelligence Agency (CIA) [official website] documents [part 1, PDF; part 2, PDF; part 3, PDF] revealing that a former agency head may have agreed to the destruction of videotapes [JURIST news archive] showing harsh interrogations of terror suspects. Last May, the ACLU harshly criticized [press release; JURIST report] the Obama administration's plans to revive [JURIST report] the military commissions system to try Guantanamo Bay [JURIST news archives] detainees, another of the major issues in today's report.

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France president announces new measures against illegal Roma
Dwyer Arce on July 29, 2010 1:19 PM ET

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[JURIST] French President Nicolas Sarkozy [official website, in French] on Wednesday ordered measures [press release] against illegal Roma [JURIST news archive] communities in France and announced new legislation aimed at making their deportation easier. The announcement comes a week after riots by members of the Roma community sparked by the shooting of a young man, resulting in the deployment of 300 troops [DW report]. The government aims to dismantle half of illegal Roma camps in the country within three months and to immediately deport of all those found to have broken the law. In explaining the need for the measures, the government said:
The President ... found [the] situation of lawlessness that characterized the Roma people [totally unacceptable]. 200 illegal settlements have been ... identified [as] sources of illicit trafficking, deeply unworthy living conditions, exploitation of children for begging, prostitution or crime. He asked the Government to proceed, within three months, the evacuation of these facilities whenever the existing law allows. [Additionally], legislative reform will be undertaken to make [the dismantling of illegal settlements] more efficient.
The move has been criticized by human rights groups, such as the League of Human Rights [advocacy website, in French], which has accused Sarkozy of using the Roma as a "scapegoat" [press release, in French] and stigmatizing the Roma community. Interior Minister Brice Hortefeux refuted this, arguing that the goal of the measures were not to target any particular group [BBC report], but to promote public safety. 15,000 Roma are currently estimated to live in France.

In July, the Council of Europe's European Commission Against Racism and Intolerance (ECRI) [official website] reported that racist violence and rhetoric has risen [JURIST report] in Europe during 2009, following the recent economic crisis. The report cites increasing hostility toward the Roma minority as well as the continuing discrimination against Muslims as seen in the proposed burqa bans [JURIST news archive] as two examples of groups facing more discriminatory actions. In February, Italian authorities began dismantling illegal immigrant camps [JURIST report] around Rome heavily populated by members of the Roma minority following the alleged rape of a 14-year-old girl by East European immigrants, which led to public outcry and vigilante reprisals. Opposition parties have voiced disapproval of the move, and the Vatican has warned against scapegoating.

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Sri Lanka court holds first hearing in case against ex-army chief
Dwyer Arce on July 29, 2010 12:09 PM ET

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[JURIST] The High Court of Sri Lanka [official website] on Thursday conducted the first hearing in the case against former army chief Sarath Fonseka [BBC profile; JURIST news archive], who is accused of provoking violence and bringing disrepute to the government. The charges are in relation to statements made to the Sunday Leader [media website] newspaper, which suggested that the government of President Mahinda Rajapaksa [BBC profile] ordered the killing of surrendering rebel leaders during the Sri Lankan civil war [CFR backgrounder; JURIST news archive]. At the hearing, the court issued 20 summons [DPA report] for witnesses to appear at the trial, which is scheduled for September 27 and is being held without a jury. Fonseka has maintained that he was misquoted [AFP report] by the newspaper. If convicted, Fonseka could face between five and 20 years in prison. Fonseka also faces another pending criminal proceeding and two court-martials charging him with participating in politics while in uniform and with improperly awarding army procurement contracts. Despite this, Fonseka successfully won a seat in parliament in elections held in April. He maintains that the allegations are politically motivated.

In April, Fonseka appeared before the Sri Lankan Parliament [official website] to call for his freedom [JURIST report] and respect for the rule of law. Fonseka argued for his release from what he characterized as an illegal detention and a byproduct of injustice, while also insisting on democratic improvements [BBC report] and institution of the rule of law. He was temporarily released from military custody in order to attend the session, to which he traveled under guard. Earlier that month, Fonseka's trials were postponed [JURIST report] to allow the Court of Appeals of Sri Lanka [official website] to examine the legality of the court-martials. Fonseka was arrested by the military in February [JURIST report] after losing presidential elections held the previous month. In March, the former chief justice of the Supreme Court criticized the treatment of the general [JURIST report]. Sarath Nanda Silva, who retired from the Supreme Court [official website] last year, accused the government of using the military justice system to prevent Fonseka from participating in April elections, and of violating Fonseka's civil rights in violation of the Constitution [text].

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Spain judge orders arrest of US troops suspected of shooting journalist in Iraq
Daniel Richey on July 29, 2010 11:24 AM ET

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[JURIST] Spanish National Court Judge Santiago Pedraz issued an arrest warrant [text, in Spanish; PDF] Thursday for three US troops suspected of gunning down Spanish journalist Juse Couso [advocacy website, JURIST news archive] in Iraq. Couso, a television cameraman, was killed in 2003 when a US tank fired into the Palestine Hotel in Baghdad. The 3rd Division infantrymen named in the warrant, Sgt. Shawn Gibson, Capt. Philip Wolford and Lt. Col. Philip de Camp, maintain that they fired into the hotel at what they thought was an enemy combatant because they were being fired upon. A US military investigation has cleared them of wrongdoing, and US officials have said they will not extradite the soldiers. Pedraz said that he issued the warrant because the matter "may constitute a crime against the international community," and US officials have not cooperated in Spanish investigations into the incident.

Earlier this month, the Spanish Supreme Court [official website, in Spanish] ordered a lower court to reopen the investigation [JURIST report] into Couso's death. Pedraz reinstated the homicide charges [JURIST report] in May 2009 after they were dropped in 2007 due to lack of evidence. Pedraz initially ordered [text, in Spanish; JURIST report] the soldiers' arrest in 2005 after initiating investigations [JURIST report] into the incident in June of that year. The order was reversed by a panel of judges for the National Court in 2006. The reversal was then overturned by Spain's Supreme Court, resulting in arrest warrants being reissued [JURIST report] in January 2007. The soldiers were indicted [JURIST report] in April that year.

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Accused Somali pirates plead not guilty in US court
Dwyer Arce on July 29, 2010 11:02 AM ET

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[JURIST] A group of suspected Somali pirates [JURIST news archive] pleaded not guilty Wednesday before the US District Court for the Eastern District of Virginia [official website]. The defendants, six Somali men alleged to have been involved in the April attack on the USS Ashland in the Gulf of Aden, pleaded not guilty to charges of piracy and assaulting a federal officer with a deadly weapon. Attorneys for the men argue that they could not have committed piracy because they did not seize or plunder the ship [CP report]. The charge of piracy carries a mandatory life sentence if convicted. The trial is scheduled to begin in October [AP report]. Another group of suspected Somali pirates also pleaded not guilty on Wednesday in the district court. This group was indicted on similar charges in relation to the attack on the USS Nicholas, also in April. Their trial date was set for November. The 11 men were charged earlier this month [AP report] by a federal grand jury, adding on to charges filed in April [JURIST report], alleging that the suspects conspired to commit and did commit various offenses, including piracy and attack with the intent to plunder a vessel, noting that "the primary purpose of the conspiracy was to make money by means of piracy on the high seas."

Several suspected Somali pirates have faced charges in federal court this year. A Somali man charged with piracy pleaded guilty [JURIST report] in May to charges of hijacking, kidnapping and hostage taking related to an April 2009 attack on the US container ship Maersk Alabama [GlobalSecurity backgrounder]. Another group of nine pleaded not guilty to piracy charges [JURIST report] in May. Somali officials have criticized [BBC report] the US for exercising jurisdiction over Muse and other pirate suspects, insisting that piracy prosecutions should be conducted by an international tribunal. They have also asked that Somali pirate suspects be returned to Somalia, which lacks a functioning central government to address the piracy problem. Piracy remains an issue of international concern, as few countries have been willing to prosecute suspected pirates. The few that have attempted to do so include Kenya, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].

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Russia president signs bill expanding secret police powers
Daniel Richey on July 29, 2010 9:51 AM ET

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[JURIST] Russian President Dmitry Medvedev [official website; JURIST news archive] on Thursday signed into law [press release, in Russian] a bill that will grant controversial new powers to the Russian Federal Security Service (FSB), the Russian Federation's successor to the former USSR's KGB [GlobalSecurity backgrounders]. The bill, which the Russian parliament approved [JURIST report] earlier this month, will give the FSB authority to question citizens about actions that may create the conditions for a crime and issue warnings [DW report] not to engage in unapproved acts. Noncompliance may be punishable by fine or up to 15 days in prison. The KGB had similar authority to engage in preemptive questioning, a power that was often used to intimidate dissidents [NYT report] in the USSR. Rights groups and members of the Russian legal community have condemned the law [press release, in Russian], saying that it legalizes arbitrary detentions and extends the FSB's power beyond its authority.

Russia faces ongoing criticism from the international community regarding its human rights record. In October, the the UN Human Rights Committee [official website] issued a report [text; JURIST report] criticizing Russia's record on human rights and calling on the country to take extensive legal reform in order to guarantee its citizens rights such as fair trials and freedoms of speech and press. Last June, the Council of Europe (COE) [official website] urged substantial reforms [JURIST report] to correct systemic problems in the Russian legal system, including the prevalence of political prosecutions and a lack of judicial independence. Medvedev has acknowledged the need for judicial reform [JURIST report], saying that transparent courts would restore faith in the justice system and prevent people from seeking redress in the European Court of Human Rights (ECHR) [official website].

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Bangladesh high court outlaws religious parties
Dwyer Arce on July 29, 2010 9:03 AM ET

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[JURIST] The Bangladeshi Supreme Court [official website] on Wednesday overturned a constitutional amendment [judgment, PDF] that had allowed religious parties to participate in politics. The court, upholding a lower court decision, held that the Fifth Amendment to the Bangladeshi Constitution [text], which allowed the participation of religious political parties and legitimized military rule, violated the principle of secularism and representative democracy found in the Constitution's preamble. Relying heavily on the US Supreme Court [official website; JURIST news archive] decision of Marbury v. Madison [text] to reinforce the notion of judicial review, the court found that the supremacy of the Constitution over the actions of government officials required them to strike down the amendment for violating the constitutional principles that the "heroic [Bangladeshi] people ... sacrifice[d] their lives [for]." The court explained:
[T]he second paragraph of the Preamble of the original Constitution ... spells out the high ideals of nationalism, socialism, democracy and secularism which was also reflected in Article 8 of the Constitution. [O]ur liberation war was fought on those high ideals and those high ideals inspired our heroic people to dedicate themselves and our brave martyrs to sacrifice their lives in the national liberation struggle and those ideals being the basis of our nationhood shall be the fundamental principles of the Constitution. ... [T]hose fundamental principles shall remain permanently as the guiding principles and as the ever lasting light house for our Republic.
The court also found that the military rule from 1975-1990 was illegal, recommending the prosecution of the leaders of the former military government. Following the decision, Bangladeshi Law Minister Shafiq Ahmed [official profile] stated that future challenges to constitutional amendments that establish Islam as the state religion and incorporate Qur'anic [text] verses would likely be successful as well [AFP report].

The Fifth Amendment was passed in 1979 by the military government. Since this time, religious parties have grown in Bangladesh, numbering at more than two dozen before the court's decision. In 2008, the party of current Prime Minister Sheikh Hasina won in a landslide over the party of former prime minister Khaleda Zia [BBC profiles], which was backed by several Islamist parties. Zia was also backed by the largest Islamist party, Jamaat e Islami (JI) [GlobalSecurity backgrounder]. Bangladesh's International Criminal Tribunal (ICT) issued four arrest warrants [JURIST report] for several of JI's leaders for genocide, murder and torture, allegedly committed during 1971 Bangladesh Liberation War [GlobalSecurity backgrounder]. The ICT was established in March [JURIST report] to try those accused of committing war crimes during the 1971 war, in which Bangladeshi forces succeeded in gaining independence from Pakistan.

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US House approves bill to reduce cocaine sentencing disparity
Erin Bock on July 29, 2010 8:45 AM ET

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[JURIST] The US House of Representatives [official website] approved a bill Wednesday that would reduce the sentencing disparity between crack and powder cocaine offenses. The Fair Sentencing Act of 2010 [S 1789 materials] would amend existing law to reduce the current sentencing ratio from 100:1 to 18:1. Under the existing law passed in 1986, an individual possessing five grams of crack cocaine would receive a mandatory five-year prison sentence, while an individual possessing powder cocaine would need to have 100 times that amount to receive the same sentence. Human Rights Watch [advocacy website] praised [press release] the bill's passage, stating that the current law also created a racial disparity, with African Americans comprising 79.8 percent of all offenders sentenced for crack cocaine violations. Attorney General Eric Holder [official website] also supported [statement] the bill's passage, stating that it will "go a long way toward ensuring that our sentencing laws are tough, consistent, and fair." House Judiciary Committee member Lamar Smith (R-TX) [official websites] was the only member to speak out against the bill [NPR report], arguing that reducing penalties could lead to increased violence in communities [press release]:
Crack cocaine is associated with a greater degree of violence than most other drugs. And more than any other drug, the majority of crack defendants have prior criminal convictions. ... I cannot support legislation that might enable the violent and devastating crack cocaine epidemic of the past to become a clear and present danger.
According to a cost estimate [text, PDF] published by the Congressional Budget Office [official website] in March, the Fair Sentencing Act would save the federal prison system $42 million between 2011 and 2015. The bill will now be sent to President Barack Obama [official website] for his consideration and signature. Obama called for a reduction in the sentencing disparity during his presidential campaign in 2008.

The bill was introduced in the Senate by Dick Durbin (D-IL) [official websites] and was passed in March, less than a week after the Senate Judiciary Committee unanimously approved the bill [JURIST reports]. Last year, the House Judiciary Committee voted 16-9 to approve a bill [JURIST report] that would have completely eliminated the sentencing disparity between the offenses. In April 2008, a study released by the US Sentencing Commission (USSC) [official website] reported [study, PDF; JURIST report] that more than 3,000 prison inmates convicted of crack cocaine offenses had their sentences reduced under an amendment to the Federal Sentencing Guidelines [materials]. In 2007, the USSC voted unanimously [JURIST report] to give retroactive effect to an earlier sentencing guideline amendment that reduced crack cocaine penalties [press release].

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UN declares access to safe drinking water a basic human right
Ann Riley on July 29, 2010 8:25 AM ET

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[JURIST] The UN General Assembly [official website] on Wednesday adopted a resolution [materials] declaring that access to clean and sanitized drinking water is a basic human right [press release]. The resolution, passed by a vote of 122-0 with 41 member states abstaining, also requires the UN Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque [official profile], to report to the General Assembly annually. The initiative promotes progress to achieve Millennium Development Goals (MDGs) [official website] to reduce social and economic harms by 2015, including decreasing the number of people who cannot reach or afford safe drinking water and do not have basic sanitation by half. The resolution also expressed concern that approximately 884 million people are without access to safe drinking water and more than 2.6 billion people lack access to basic sanitation.

In March, Bolivian President Evo Morales [BBC profile] called on the UN [JURIST report] to declare access to safe drinking water a basic human right and introduced the resolution. Morales' administration has been working to increase access [NNN-Prensa Latina report] for Bolivian citizens to clean water since 2006, investing in new water and sewage systems throughout the country. Earlier this month, the Botswana High Court [SAFLII database] ruled that the indigenous Bushmen [National Geographic backgrounder], or San, people cannot reopen a well [JURIST report] or dig new wells in their village in the Central Kalahari Game Reserve [official website]. The closest source of water for the Bushmen is 25 miles from their village. The Botswana government has argued that the tribe's village in the game reserve is not a formal settlement and, therefore, the government is not required to provide the Bushmen with water. Spokesmen for the tribe announced in January [JURIST report] that they plan to take the land dispute issue to the International Court of Justice (ICJ) [official website; JURIST news archive] because the government continues to ignore court orders granting land rights.

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US House approves commission to reform criminal justice system
Ann Riley on July 29, 2010 7:38 AM ET

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[JURIST] The US House of Representatives [official website] on Wednesday passed a bill [HR 5143 materials] that would create a bipartisan commission [press release] charged with reviewing the US criminal justice system. The commission would also propose reforms and promote the reduction and prevention of violence and crime. According to House sponsor Bill Delahunt (D-MA) [official website], the US incarcerates 2.3 million people, with prison costs soon reaching $75 billion. Delahunt praised the passage in the House, asserting that the bill "will assess the current crisis, reverse these disturbing trends and help save taxpayer money." Currently pending in the US Senate [official website], the legislation has widespread bipartisan support and 39 co-sponsors. Senate sponsor Jim Webb (D-VA) [official website] urged [press release] the Senate to act on the bill, saying [video]:
This bill will take a long overdue, comprehensive review of our criminal justice system - taking a look at what's broken and what works. ... Essentially all elements in our country that are involved in this issues agree that we need to find the type of solution that's going to make our system more fair, more efficient, and reduce crime and criminal recidivism in our communities.
The National Criminal Justice Commission Act of 2010 [S 714 materials; backgrounder] was initially introduced in the Senate by Webb in March 2009. In April, Delahunt introduced the companion legislation in the House. The bill was approved by the Senate Judiciary Committee [official website] in January and now awaits full chamber approval.

The legislation joins a series of recent US Supreme Court [official website; JURIST news archive] rulings scrutinizing the criminal justice system. In June, the Court decided [JURIST report] that federal sentencing guidelines [materials] do not provide for special consideration of changes in sentencing guidelines during USC § 3582(c)(2) [text] sentence modification hearings, and are advisory only, although they had never ruled on the application to sentence modification hearings. A week earlier, the court upheld [JURIST report] the Sentencing Reform Act [18 USC § 3624(b) text] method used by the federal Bureau of Prisons (BOP) [official website] permitting federal prison authorities to award prisoners credit against prison time as a reward for good behavior. In May, the court held [JURIST report] that the Eighth Amendment [text] ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile's commission of a non-homicide offense.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
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