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Legal news from Friday, August 27, 2010




Arizona files opening brief in immigration law appeal
Zach Zagger on August 27, 2010 3:10 PM ET

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[JURIST] Arizona Governor Jan Brewer (R) [official website] on Thursday filed the state's opening brief [text, PDF] in the US Court of Appeals for the Ninth Circuit [official website], asking the court to lift the preliminary injunction blocking Arizona's controversial immigration law [SB 1070 materials; JURIST news archive] from taking full effect. In the brief, Arizona argues that the preliminary injunction should be vacated because District Judge Susan Bolton applied the wrong legal standard in issuing the preliminary injunction. The brief argues the district court only found that the law was unconstitutional because it was "likely" to conflict with federal law. Arizona claims that, to prove a facial challenge to its law, the US must make "a clear showing that the provision is unconstitutional in all of its applications" and that this burden was not met. It further argues that the district court "erroneously accepted at face value all of the United States' factual assertions" to make its finding that the law conflicts with federal law. It claims that its law is constitutional because it mirrors federal immigration law and "reinforces Congress' objectives and carries out Congress'; intent to foster federal and state cooperation." The reply brief from the federal government is due September 23 with a hearing scheduled for November 1.

Last month, the Ninth Circuit denied Arizona's request for expedited appeal [JURIST reports]. The preliminary injunction [JURIST report] came at the request of the US Department of Justice (DOJ) [official website], which filed suit challenging the constitutionality of the law [JURIST report] last month. Bolton issued the injunction against provisions of the law requiring the verification of the immigration status of people reasonably suspected of being illegal immigrants, authorizing the warrantless arrest of those police have probable cause to believe have committed an offense that could lead to deportation and requiring noncitizens to carry their registration papers with them at all times. The law has been widely criticized as unconstitutional for allegedly legalizing racial profiling. The American Bar Association (ABA) [official website] filed an amicus curiae brief [JURIST report] in support of the DOJ lawsuit, following the submission of another amicus curiae brief [JURIST report] filed by the American Civil Liberties Union (ACLU) [advocacy website].




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Aide to Iran opposition leader sentenced to 5 years in prison: report
Matt Glenn on August 27, 2010 1:36 PM ET

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[JURIST] An Iranian court has sentenced Qorban Behzadiannejad, the campaign manager for opposition leader Mir Hossein Mousavi [BBC profile] during the 2009 election [JURIST news archive], to five years in prison, opposition website Kaleme [advocacy website, in Persian] reported [Kaleme report, in Persian] Friday. The report does not identify the charges [AP report] against Behzadiannejad. The former campaign manager was also reportedly fined $100 for insulting President Mahmoud Ahmadinejad [official website].

In June, Mousavi called for the prosecution [JURIST report] of those who committed fraud during the 2009 election and vowed to continue opposing Ahmadinejad. Earlier that month, Iranian Supreme Leader Ayatollah Ali Khamenei [official website; BBC profile] pardoned or commuted the sentences of 81 protesters [JURIST report] arrested following the disputed election. A Tehran Revolutionary Court [official website, in Persian] in April sentenced [JURIST report] three prominent progressive activists to six years in prison in connection with the protests. The men were high-ranking officials of the Islamic Iran Participation Front [party website, in Persian], a pro-democracy reformist political party that supported opposition leader Mousavi in the disputed election. Iranian authorities jailed prominent Iranian journalist Mohammad Nourizad and reform movement leader Hossein Marashi [JURIST reports] on similar charges in April and March, respectively.




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UN race committee calls for end to discrimination against Roma
Brian Jackson on August 27, 2010 1:30 PM ET

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[JURIST] The UN Committee on the Elimination of Racial Discrimination (CERD) [official website] concluded its 77th session Friday by expressing concern [text] with the discrimination faced by Roma migrants [JURIST news archive] in numerous European countries, focusing on France's recent expulsion policy. The committee's concern was not limited to France's expulsion policy, but also included the behavior of politicians, including "political speeches of a discriminatory nature." CERD noted the seeming contradiction between France's preparation of a national plan to fight racism, while at the same time expelling individuals without any consent:
The Committee expressed concern over the difficult situation members of the Roma community were facing with regard to their economic, social and cultural rights. As the State party had accepted the principle of linguistic and cultural diversity, the Committee was concerned over the partial implementation of that principle on the French territory.
France has defended its handling of the Roma [Telegraph report], saying only few cases result in forced deportation and that France was helping those displaced reintegrate into their countries of origin.

On Thursday, the EU Parliamentary Group of the Progressive Alliance of Socialists & Democrats accused France of violating EU law [JURIST report] with its expulsion policy. Last month, French President Nicolas Sarkozy [official website, in French] ordered measures against illegal Roma communities in France and announced legislation [JURIST report] that would make deportation easier. At the time, the French government aimed to dismantle half of illegal Roma camps within three months and to immediately deport all those found to have broken the law. In February, following the alleged rape of a 14-year-old girl by East European immigrants, Italian authorities began dismantling illegal immigrant camps [JURIST report] around Rome that were heavily populated by members of the Roma minority.




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UN Security Council urges justice for DRC rape victims
Matt Glenn on August 27, 2010 1:07 PM ET

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[JURIST] Members of the UN Security Council [official website] expressed "outrage" [statement; UN News Centre report] Thursday over a recent mass rape in the Democratic Republic of Congo (DRC) [BBC backgrounder; JURIST news archive], calling for justice for the victims. UN representatives allege that Congolese rebel groups Mai Mai and the Democratic Liberation Force of Rwanda (FDLR) [GlobalSecurity backgrounders] raped between 150 and 200 women and children [NYT report] in a small cluster of villages in eastern DRC between July 30 and August 3 of this year. The attackers allegedly blocked all communication [BBC report] from the villages, preventing villagers from alerting UN peacekeepers stationed nearby. The Security Council said it hopes to be briefed on findings by Assistant Secretary-General Atul Khare and the Secretary General's Special Representative on Sexual Violence in Conflict, Margot Wallstrom who were dispatched to the DRC Wednesday.

Human rights have long been a major concern in the DRC. In June, national police chief John Numbi was suspended [JURIST report] as part of the ongoing investigation into the murder of human rights activist Floribert Chebeya. In December, HRW urged the UN Organization Mission in DR Congo (MUNOC) [official website] to stop funding military groups [JURIST report] in the country that are committing human rights abuses. In December 2008, AI reported that rape and sexual warfare have been employed [JURIST report] by both the DRC military and by rebel forces. In November 2008, MUNOC head Alan Doss [appointment release] condemned [JURIST report] the killing of civilians by militias in the country as war crimes. MONUC has been operating in DRC since 1999. The conflict in the DRC has claimed more than four million lives and has been ongoing since 1983. MONUC has overseen elections and continues to provide armed protection for civilians in certain areas, particularly the North and South Kivus provinces.




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FCC appeals circuit court ruling on television indecency policy
Brian Jackson on August 27, 2010 12:26 PM ET

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[JURIST] The Federal Communications Commission (FCC) [official website] on Thursday appealed [text, PDF] a decision [JURIST report] by the US Court of Appeals for the Second Circuit that the agency's television indecency rule [text] is unconstitutionally vague in violation of the First Amendment. The July appellate court decision further held that the FCC's rule, which allowed broadcasters to be fined based on isolated expletives, chills protected speech, as broadcasters would err on the side of not airing controversial matter, rather than face the prospect of significant fines. The agency's appeal for rehearing and an en banc rehearing argues that the Second Circuit's decision conflicts with Supreme Court precedent, particularly the court's decision in FCC v. Pacifica Foundation [materials], the "Seven Dirty Words" decision. The FCC concluded its argument by asserting that, under the Second Circuit's prior ruling, the agency would be unable to develop a clear indecency rule, and:
The panel's opinion may theoretically leave open the possibility that the FCC could return to something like its pre-1987 policy, which focused on Carlin's seven dirty words. During the time when that policy prevailed, however, "not a single enforcement action was brought." It is easy to understand why, in light of the freedom that policy gave to broadcasters to air indecent material so long as they "avoided certain words."
Under Federal Rule of Appellate Procedure 40 [text], there is no absolute right for the networks involved in the controversy to answer the FCC's petition for rehearing, and the court may issue a decision without hearing re-argument.

The US Supreme Court originally remanded the case to the appeals court after ruling [opinion text; JURIST report] in April 2009 that the FCC did not act arbitrarily and capriciously in changing its policy regarding fines for the broadcast of isolated expletives. That ruling overturned a previous decision [JURIST report] by the Second Circuit, which held that the 2004 policy was arbitrary and capricious under the Administrative Procedure Act [text] for failing to articulate a reasoned basis for its change in policy. The Supreme Court declined to address the constitutionality of the FCC policy in its decision and remanded the case to the lower court for further consideration of the constitutional issue.




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Kenya president signs new constitution into law
Megan McKee on August 27, 2010 9:11 AM ET

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[JURIST] Kenyan President Mwai Kibaki [official profile] signed a new constitution [text, PDF] into law Friday as part of a reform movement aimed at curbing vast presidential powers. Kenya's new constitution includes numerous checks on presidential authority [AP report], among which are the creation of a supreme court and senate. The constitution also requires reforms [Guardian report] to the nation's judiciary and land tenure system and improvements in civil rights and women's representation. The government is now expected to start implementing the new constitution, which could take as long as five years. This document has been received as one of the most significant events in Kenya since its independence.

The new constitution was approved [JURIST report] by popular referendum earlier this month. Voting on the constitution took place amid concerns that high turnout and heated debate over the referendum could cause a repeat of the violence seen during the country's presidential election [JURIST report] in 2007. The creation of a new constitution was part of a power-sharing agreement [JURIST report] reached in 2009 between Kibaki and opposition leader Prime Minister Raila Odinga [official website] that brought to an end the civil unrest that followed the contested election. Election officials sought to make the referendum as inclusive and peaceful as possible by allowing prisoners to vote and prosecuting those who suggested violence in reaction to the changes [JURIST reports] under hate speech laws.




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Federal judge sends immigration law decision to Nebraska high court
Daniel Makosky on August 27, 2010 8:33 AM ET

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[JURIST] US District Judge Laurie Smith Camp ruled Wednesday that the Nebraska Supreme Court [official website] should be the first forum to address a city of Fremont ordinance [No 5165 text] banning the hiring, harboring or renting of property to illegal immigrants [JURIST news archive]. The order requests that the parties attempt to agree upon the language of a question [Fremont Tribune report] to be submitted to Nebraska's high court and advises that any remaining federal issues will be addressed following that court's decision. The controversial ordinance would require all employers in the city to register for the E-Verify program [DHS website] and would make it a crime to rent to illegal immigrants. It would also void any lease entered into by an illegal immigrant and would require every person seeking to rent residential property to obtain an occupancy permit from the city, which would require the applicant to sign a declaration affirming his or her US citizenship or otherwise provide a visa or employment authorization number. Smith Camp's ruling comes after combining lawsuits [JURIST report] from the American Civil Liberties Union (ACLU) and Mexican American Legal Defense and Educational Fund (MALDEF) [advocacy websites] filed in the US District Court for the District of Nebraska [official website] last month.

Following last month's challenges to the ordinance, passed via referendum in June, the Fremont City Council voted unanimously and without debate to suspend the legislation [JURIST reports] until a resolution was reached. The council also approved the hiring of Kris Kobach [academic profile], a law professor and Kansas political candidate, to defend the city against the lawsuits. Kobach assisted in the drafting of the ordinance and the Arizona immigration law [SB 1070 materials; JURIST news archive] and offered his assistance to Fremont pro bono. The ACLU challenged the law based on the Equal Protection and Supremacy [Cornell LII backgrounder] clauses of the US Constitution [text]. MALDEF's lawsuit [complaint, PDF] makes nearly identical arguments, adding that the ordinance interferes with a person's right to enter into and enforce contracts under federal law [42 USC § 1981 text] and violates Article 11 of the Nebraska Constitution [text] because the Fremont municipal government has not been empowered by the Nebraska Legislature [official website] to enforce immigration law. Additionally, MALDEF cites five cases of similar local laws that were struck down by federal and state courts, including a nearly identical law struck down [JURIST report] by a federal district court in Texas. A previous version of the ordinance was narrowly voted down [BBC report] by the city council in 2008.




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Spain extradites Montenegrin war crimes suspect to Bosnia
Daniel Makosky on August 27, 2010 7:16 AM ET

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[JURIST] Bosnia and Herzegovina's Presidency Chairman Zeljko Komsic [official website, in Croatian] announced Thursday that Spanish officials extradited [press release, in Croatian] accused Montenegrin war criminal Veselin Vlahovic to Sarajevo. Vlahovic, known as the "monster of Grbavica," is wanted on three international arrest warrants, including one for the rape, torture and murder of more than 100 women and children during the 1992-1995 Bosnian civil war [JURIST news archive]. He is expected to face genocide charges [Reuters report] before the country's war crimes court, established in 2005 to assist the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website]. Spanish police captured [JURIST report] Vlahovic in March after he was accused of several burglaries near his home in Altea. Vlahovic is also wanted for a series of additional violent crimes. In 1998, he was imprisoned in Montenegro for armed robbery but escaped in June 18 2001. Three days later, he shot a man outside a bar in Serbia and was convicted in absentia and sentenced to 15 years. He was also wanted in Spain for armed robbery.

Vlahovic's arrest comes as former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive], stands trial before the ICTY for alleged war crimes during the Bosnian War. Karadzic faces 11 charges [amended indictment, PDF], including genocide and murder, for crimes allegedly committed during the 1992-1995 Bosnian conflict. In June, the ICTY said that Karadzic's trial was expected to conclude in early 2012 [JURIST report] and is planned to be the tribunal's last.




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