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Legal news from Saturday, August 7, 2010

Supreme Court refuses to block Khadr military trial
Zach Zagger on August 7, 2010 4:01 PM ET

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[JURIST] The US Supreme Court [official website] on Friday refused to block the military trial of Canadian Guantanamo Bay [JURIST news archive] detainee Omar Khadr [DOD materials; JURIST news archive]. The Supreme Court issued a one-line order denying the Khadr's petition for a stay. The order had no noted dissents and offered no explanation of the ruling. The trial is scheduled to begin August 10 at the US military base at Guantanamo Bay. Khadr's US military lawyer, Lt.-Colonel Jon Jackson, filed a petition [JURIST report] on Monday asking the Supreme Court either to issue a writ of mandamus [Cornell LII backgrounder] forcing the US Court of Appeals for the District of Columbia Circuit [official website] to rule on a similar petition or for the Supreme Court to grant the stay because there was little time before the trial.

Last month, the US District Court for the District of Columbia [official website] allowed Khadr to amend [JURIST report] his 2004 habeas corpus petition, but refused to lift the stay on the petition pending the conclusion of his military commission. Also in July, Khadr rejected a plea deal [JURIST report] offered by the US government, which would have resulted in a five-year prison sentence. Khadr is facing murder and terrorism charges [JURIST report] for allegedly throwing a grenade that killed one US soldier and injured another. If he is found guilty, he could face a life sentence. Khadr's defense lawyers have repeatedly sought his repatriation [JURIST report] to Canada on the basis that the Canadian government's refusal to request repatriation from the US violates the Canadian Charter of Rights and Freedoms [text].

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California governor, AG seek immediate resumption of same-sex marriages
Christian Ehret on August 7, 2010 3:56 PM ET

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[JURIST] California Governor Arnold Schwarzenegger, Attorney General Jerry Brown and others filed motions [AG brief, text] Friday in the US District Court for the Northern District of California [official website] opposing a request to stay the court's recent decision [opinion, PDF; JURIST report] enjoining the enforcement of Proposition 8, the state's ban on same-sex marriage. The requested stay would disallow gay marriage in California until the decision is appealed to the US Court of Appeals for the Ninth Circuit and even possibly the US Supreme Court. Schwarzenegger and Brown were originally defendants in the lawsuit against Proposition 8, now leaving defendant-intervenors Project Marriage [advocacy website] and other groups to defend the controversial law. The motion submitted by Brown stated that:
Defendant-Intervenors' argument [in support of] their request for a stay pending appeal ignores the fact that there has now been a trial on the merits that conclusively demonstrated that Proposition 8 is unconstitutional. ... [W]hile there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by this Court's conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional
The Plaintiffs' brief in opposition [PDF] to the request for a stay argued that plaintiffs and other gay and lesbian Californians will "suffer irreparable harm if Proposition 8's irrational deprivation of their constitutional rights is prolonged."

The Wednesday ruling found that Proposition 8 violated the 14th Amendment's guarantees to Equal Protection and Due Process. The case began in January and culminated with closing arguments [JURIST reports] in June.

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Federal appeals court rules against warrantless GPS tracking
Christian Ehret on August 7, 2010 2:14 PM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] ruled [opinion, PDF] Friday that prolonged use of global positioning systems (GPS) to monitor suspects' vehicles violates the Fourth Amendment [text] protection against unreasonable searches and seizures. The appellate court found that there exists a reasonable expectation of privacy in the "whole of a person's movements over the course of a month" because the combination of all such movements is not actually or constructively exposed to the public. Although the Supreme Court's ruling in United States v. Knotts [opinion text] allows the use of tracking devices to follow vehicles from one place to another based on a lower expectation of privacy on public roads, the appeals court distinguished the instant case by finding that too much personal information is revealed over longer periods of time. The court discussed the expectations of society, stating:
Society recognizes Jones's expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation. As we have discussed, prolonged GPS monitoring reveals an intimate picture of the subject's life that he expects no one to have — short perhaps of his spouse.
The decision adds to a split among appellate courts on the issue, although the court noted that decisions to the contrary "were not alert to the distinction ... between short-term and prolonged surveillance" in the relevant precedent.

In June, the US Supreme Court unanimously held [opinion, PDF; JURIST report] that, even if there is a reasonable expectation of privacy in work-issued electronic devices, that an employer's search of private text messages does not violate the Fourth Amendment so long as the search is not excessive and is pursuant to a legitimate work-related purpose. In February, the US Court of Appeals for the Ninth Circuit ruled [opinion, PDF; JURIST report] that strip searching all incoming inmates does not violate the Fourth Amendment because it is necessary in order to prevent illegal substances from entering prisons.

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Rights group urges South Carolina to stop segregating HIV-positive prisoners
Zach Zagger on August 7, 2010 12:48 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Friday urged the South Carolina Department of Corrections (SCDC) [official website] to stop segregating HIV-positive inmates [press release]. HRW claims the policy promotes stigma and discrimination because HIV-positive prisoners are housed in a separate maximum security facility, regardless of their sentence, and forced to serve longer sentences because they are excluded from many work programs and services that enable other inmates to leave early. On Tuesday, the US Department of Justice (DOJ) [official website] sent a letter [text, PDF] to the SCDC revealing that the DOJ Civil Rights Division is investigating the SCDC after numerous complaints about the segregation policy. The DOJ alleges that segregating HIV-inmates is a violation of Title II of the Americans with Disabilities Act (ADA) [text] because HIV-positive prisoners are held in separate housing and excluded from many of the programs, services and activities provided by the SCDC. The DOJ claims HIV-positive inmates also receive inadequate medical and mental health care. The letter says the matter will be resolved if several changes are made by the SCDC, including integrating the HIV-positive prisoners and protecting their privacy by not disclosing their disease.

Only two states, Alabama [JURIST report] and South Carolina, still have a policy of discriminating HIV-positive prisoners. In April, HRW and the American Civil Liberties Union (ACLU) [advocacy website] jointly produced a report [text, PDF] concluding that the prisoners face fundamental discrimination, which amounts to "cruel, inhuman and degrading treatment of prisoners." In March, Mississippi ended [AP report] its segregation program, after extending [ACLU press release] educational and vocational training to HIV-positive inmates in 2001. In 1990, the ACLU, on behalf of HIV-positive prisoners, sued to force Mississippi to provide proper medical care. HRW has also accused the federal Department of Homeland Security [official website] of providing inadequate medical care [JURIST report] to HIV-positive immigration detainees.

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For more legal news check the Paper Chase Archive...


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

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