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Legal news from Tuesday, October 5, 2010

Sweden prosecutor brings war crimes charges aginst former Bosnian prison guard
Sarah Paulsworth on October 5, 2010 2:50 PM ET

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[JURIST] Sweden's international prosecutor Magnus Elving unveiled war crimes charges Tuesday against Swedish citizen and former Bosnian prison guard Ahmet Makitan. Makitan is accused [AP report] of violating the Geneva Convention on the Treatment of Prisoners of War [text, PDF] by kidnapping people and torturing and insulting prisoners at a camp in Dretelj, Bosnia-Herzegovina, during the Balkan War [JURIST news archive]. Twenty-one victims subjected to mistreatment by Makitan have been named [The Local report] in the indictment. Makitan arrived in Sweden in 2001 and obtained citizenship in 2006. The charges are the result of an investigation carried out by Sweden's National War Crimes Commission, which was created in 2008, and Makitan has been in police custody since January. Questions have arisen regarding the ability to prosecute [Sveriges Radio report, in Swedish] Makitan for war crimes within the framework of Sweden's domestic legislation. Makitan's trial will start on October 13 and should last approximately five months.

In addition to the Makitan case, Sweden is also considering litigation in several other war crimes cases. In June, Sweden announced [JURIST report] its intention to investigate the possible role of Lundin Petroleum [corporate website] in crimes against humanity committed in Sudan from 1997 to 2003. The investigation will examine allegations made in a report [text, PDF] released by the European Coalition on Oil in Sudan (ECOS) [advocacy website], which alleged that Sudanese troops attacked and displaced civilians so that Lundin could have access to land for oil drilling. In April, Swedish Police [official website] arrested [press release, in Swedish] a Kosovo war crimes suspect. The suspect is accused [JURIST report] of committing war crimes during the 1998-1999 Kosovo war [BBC backgrounder; JURIST news archive] in the small village of Cuska in May 1999. A Swedish police spokesperson did not release the man's full name because of Swedish privacy laws but did state that the suspect is a Serbian man in his 30s [AFP/SW report].

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Dutch court rejects bias allegations in politician's trial for anti-Islamic statements
Sarah Paulsworth on October 5, 2010 1:24 PM ET

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[JURIST] A panel of Dutch judges on Tuesday rejected claims of judicial bias, ordering the trial of politician Geert Wilders [personal website; JURIST news archive] on charges [prosecution materials, in Dutch] of making anti-Islamic statements to resume. The panel considered [CSM report] the accusation [JURIST report], but found that language used by Amsterdam District Court Judge Jan Moors on Monday was unobjectionable [AP report]. Moors had said that Wilders avoided discussions caused by his controversial statements. Wilders is known for calling Islam "fascist," comparing the Quran to Adolf Hitler's Mein Kampf and advocating prohibiting Muslims from immigrating to the Netherlands. With this issue resolved, Wilders' trial will now continue [Bloomberg report] on Wednesday.

Last week, Wilders announced [JURIST report] that the Dutch government will attempt to ban the burqa [JURIST news archive] and other full Islamic veils to secure the support of Wilders' Freedom Party [party website, in Dutch] in forming a coalition government. An Amsterdam trial court ruled in February held that it had jurisdiction to try Wilders for anti-Islamic statements. The court rejected [JURIST report] Wilders' claim that he should be tried by the Supreme Court as a member of parliament, finding that his alleged crime was committed outside his capacity as an MP. Much of the controversy stems from Wilders' 15-minute film, Fitna, which shows images of the Quran alongside images of violence and says democratic values are threatened by the increasing number of Muslims in Europe. UN Secretary General Ban Ki-moon called the film "offensively anti-Islamic" [JURIST report] after its release. In February 2008, Pakistan blocked access to YouTube's website because it had posted a movie trailer for Wilders' film, but access was restored [JURIST reports] several days later. Indonesia followed suit [JURIST report] in April 2008. The same month, a district court in the Netherlands rejected [JURIST report] a bid by the Dutch Islamic Federation to block Wilders' anti-Quran statements, saying that his comments are protected by the right of free expression and do not constitute speech that incites hate or violence.

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Supreme Court hears arguments on NASA background checks, evidence
Jaclyn Belczyk on October 5, 2010 1:17 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in NASA v. Nelson [oral arguments transcript, PDF] on informational privacy. The issue is whether the government violates a federal contract employee's constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use or when it asks the employee's designated references for any adverse information that may have a bearing on the employee's suitability for employment at a federal facility. The case arose in 2007 when NASA [official website] began requiring background checks for all contract employees. A group of 28 employees filed suit seeking an injunction, but their claims were rejected by the district court. The US Court of Appeals for the Ninth Circuit reversed [JURIST report] and denied [opinion, PDF] an en banc rehearing. Counsel for NASA argued, "the background checks' mere collection of information with accompanying safeguards vitiates no constitutional privacy interest. These checks have been going on for millions of employees for dozens of years. They are part of the employment process. They are manifestly not roving checks on random individuals." Counsel for the respondents argued that the background checks violate their rights under the Fifth Amendment.

In Michigan v. Bryant [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are non-testimonial evidence, rendering them admissible in court. The Michigan Supreme Court ruled [opinion, PDF] that the "primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecution," concluding that the statements constituted inadmissible testimonial hearsay. Counsel for the petitioner, the state of Michigan, argued that the statements should be admissible. Counsel for the US government also argued on behalf of the petitioner as amicus curiae. Counsel for the respondent argued that admitting the statements would violate the Confrontation Clause of the Sixth Amendment.

In Los Angeles County v. Humphries [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether a plaintiff must show that a constitutional violation by a public entity was the result of a policy, custom or practice of that entity before declaratory relief can be granted. The case arose after two parents were unable to have their names removed from California's Child Abuse Central Index [official materials], a database that collects reports of child abuse, after the charges against them were dismissed. The US Court of Appeals for the Ninth Circuit found [opinion, PDF] that the inability to remove "factually innocent" suspects from the database violated their rights under the Fourth Amendment and subsequently awarded $652,000 in attorney's fees for the appeal. The county challenged the Ninth Circuit's ruling on the grounds that the couple failed to show that the county had adopted a policy or practice that resulted in the constitutional violation, as required by Monell v. Department of Social Services [opinion text] and that their failure to do so meant that they were not "prevailing parties" for the purposes of fee awards under 42 USC § 1988 [text]. Counsel for the petitioner argued that the Ninth Circuit erred in not requiring plaintiffs to show causation. Counsel for the respondents argued that the fact that there was an ongoing violation rendered the showing of causation unnecessary.

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NYC car bomber sentenced to life in prison
Jay Carmella on October 5, 2010 12:10 PM ET

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Tuesday sentenced Pakistani-born US citizen Faisal Shahzad [BBC profile] to life in prison [FBI press release] for attempting to detonate a car bomb in New York City's Times Square in May. Judge Miriam Goldman Cedarbaum found that Shahzad did not show any remorse [AFP report] for the incident and even expressed a desire to repeat the action if given the opportunity. Shahzad, who became an American citizen in April 2009, pleaded guilty [JURIST report] to 10 counts of terrorism and weapons charges [indictment, PDF; JURIST report] in June. Shahzad appeared in court in order to warn that attacks against the US had just begun. After becoming a citizen, Shahzad recieved financial support [CBS news report] and training from a branch of the Pakistani Taliban, known as the Tehrik-e-Taliban [GlobalSecurity backgrounder]. Cedarbaum expressed hope that the harsh sentence would service as a deterrent to individuals who would consider following in Shahzad's footsteps.

Shahzad's arrest and subsequent interrogation have helped shape debate in the US over the reading of the Miranda warnings to terror suspects. Shahzad was given Miranda warnings but waived them and continued talking with police [NYT report] for more than two weeks before finally meeting with counsel. Despite the information provided by Shahzad, lawmakers continue to push for more limitations on Miranda. In May, US Attorney General Eric Holder [official website] indicated that the Obama administration plans to ask Congress to enact legislation [JURIST report] allowing interrogators to question terror suspects for a longer period of time than currently allowed before informing them of their constitutional rights to remain silent and be represented by an attorney. Also in May, lawmakers introduced a bill [JURIST report] that, if passed, would strip US citizenship rights from those suspected of engaging in terrorism. In March, Senators John McCain (R-AZ) and Joseph Lieberman (I-CT) proposed a law [JURIST report] that would require terror suspects to be stripped of their Miranda rights and to face military interrogation and trial. The proposed legislation, has been controversial [JURIST op-ed], with critics claiming its impact "would be a fundamental miscarriage of justice."

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Pakistan judges resign in protest over treatment by lawyers
Hillary Stemple on October 5, 2010 12:06 PM ET

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[JURIST] A dispute among the Pakistani judiciary worsened on Monday as more than 1,300 civil judges resigned in protest over the treatment of judges by lawyers and to express solidarity with Lahore District and Sessions Judge Zawar A Sheikh. The resignations come amid nationwide demonstrations by lawyers protesting police treatment of lawyers [Daily Times report] when members of the bar attempted to meet with Lahore High Court Chief Justice Khawaja Muhammad Sharif about the possible transfer of judges. The lawyers contend that judges, including Sheikh, have been disrespectful to members of the bar [Xinhua report] and should be transferred to other positions. The judges maintain that lawyers are demanding the transfers so that Sheikh and others can be replaced with judges favored by the lawyers [The Nation report]. Sharif rejected the resignations of the judges, indicating that they should continue performing their duties in order to serve the public interest. Members of the Pakistani bar have blamed Sharif for much of the violence, stating that he should have acted to protect the lawyers from the police in order to avoid the incident that sparked the recent dispute. Both sides are being urged to negotiate an end to the protests, but it remains unclear as to when the judicial system will be able to resume a normal schedule.

Sharif was also at the center of a dispute between the judicial and executive branches last February, when the Supreme Court of Pakistan [official website] deferred his appointment [JURIST report] as a judge to the Supreme Court. The court denied the nominations because President Asif Ali Zardari [official website] had not consulted Chief Justice Iftikhar Muhammad Chaudhry [JURIST news archive] over the appointment of Sharif to the Supreme Court as required by Article 177 of the Pakistani Constitution [text]. Tensions between the judicial and executive branches were also evident in January when the court released a detailed judgment in the controversial National Reconciliation Ordinance (NRO) [text] case, ruling unconstitutional an ordinance granting immunity to Zardari and 8,000 other government officials from charges of corruption, embezzlement, money laundering, murder and terrorism between January 1986 and October 1999. A special 17-member panel of the court rendered the original unanimous decision [JURIST report] in December, paving the way for corruption charges to be brought against Zardari.

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Thailand court dismisses charges against suspected Russia arms dealer
Jay Carmella on October 5, 2010 11:10 AM ET

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[JURIST] The Bangkok Criminal Court on Tuesday dismissed money laundering and fraud charges against suspected Russian arms dealer Viktor Bout [BBC profile; JURIST news archive], paving the way for his extradition to the US. The court found that there was insufficient evidence [BBC report], in addition to other technicalities, to prosecute Bout. The charges [indictment, PDF] were filed by US prosecutors in February in order to keep Bout in jail while attempts were made to have him extradited. The decision to drop the charges comes just a day after the court decided to proceed [JURIST report] with the action. The US and Thai prosecutors sought to have the money laundering and fraud charges dropped after a Thai appeals court ruled [JURIST report] in August that Bout could be extradited to the US within three months to face several charges, including conspiracy to kill US nationals and conspiracy to provide material support to a proscribed terrorist group. Bout's lawyer continues to profess his client's innocence on all charges, and plans to file an appeal [Bangkok Post report] should prosecutors pursue the extradition.

Bout's situation has created political tension for Thailand. Russia has shown strong support for Bout, claiming that he is an innocent businessman, while the US is seeking to prosecute him for supporting terrorism. Last week, Thai Prime Minister Abhisit Vejjajiva [official website, in Thai; BBC profile] said that, although the case must work its way through the court system, he will make the final decision [AP report] as to whether Bout will be extradited to the US. The August appeals court decision overturned a 2009 decision by the Bangkok Criminal Court, refusing to extradite [JURIST report] Bout on the basis that the accusations made by the US were not cognizable under Thai law. The appeals court ruled that the Revolutionary Armed Forces of Colombia (FARC) [GlobalSecurity backgrounder], the group Bout is accused of supporting, is a cognizable terrorist group [Guardian report] under Thai law and that Thailand is obligated to honor its extradition treaties with the US. Lawyers for Bout argued that his safety would be in jeopardy in the US and that he would be unable to receive a fair trial. If convicted in a US court, Bout could be sentenced to life in prison.

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DOJ suing credit card companies for antitrust violations
Hillary Stemple on October 5, 2010 10:54 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Monday announced the filing of a civil antitrust lawsuit [press release] against credit card companies Visa, MasterCard and American Express [corporate websites]. The lawsuit, filed in the US District Court for the Eastern District of New York [official website], challenges rules utilized by the companies that prevent merchants from providing discounts and rewards for using credit cards with lower merchant fees. The DOJ contends that these rules unfairly inflate costs for both consumers and merchants. The DOJ also announced that Visa and MasterCard have agreed to a settlement that will require the companies to allow merchants using their cards to express a preference for types of payments accepted, to offer discounts to consumers for using a particular card or type of payment and to provide consumers with information regarding the costs incurred by the merchant when a particular type of credit card is used. Attorney General Eric Holder [official profile] noted the importance of the lawsuit [statement] in helping to curb the harmful practices:
[R]estrictive rules prevent price competition among credit card networks, which means merchants face increased business costs and consumers pay higher prices. With today's lawsuit we are sending a clear message: we will not tolerate anticompetitive practices. We want to put more money in consumer's pockets, and by eliminating credit card companies' anticompetitive rules, we will accomplish that.
American Express has denied any wrongdoing [press release], and the company's chairman noted that they have "no intention of settling the case." American Express also indicated that they believe the lawsuit will ultimately limit consumer choice and actually decrease the competitive nature of the credit card industry. If the DOJ's proposed settlement is approved, it will allow merchants accepting only Visa or MasterCard to take immediate advantage of the terms of the settlement.

The DOJ's lawsuit is not the first effort by the Obama administration to protect consumers from the practices of the credit card industry. In May 2009, President Barack Obama signed [press release] the Credit Card Accountability Responsibility and Disclosure Act (CARD Act) [text, PDF] in order to protect "responsible credit card users." Among the provisions included in the law, which went into full effect [press release] in August, are restrictions on retroactive interest rate increases, a mandatory 45-day notice for all proposed interest rate increases and a requirement that credit card companies mail a billing statement to the consumer 21 days before the bill due date. The measure passed both the House and Senate [JURIST reports] with strong bipartisan support.

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France court sentences 'rogue trader' to 3 years in prison for bank fraud
Carrie Schimizzi on October 5, 2010 8:58 AM ET

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[JURIST] The Paris Criminal Court [official website, in French] on Tuesday sentenced [judgment, PDF; in French] "rogue trader" Jerome Kerviel [BBC backgrounder; JURIST news archive] to three years in prison and an additional two years suspended for fraudulent covert trading while working for French bank Societe Generale [corporate website, in French]. The court convicted [Reuters report] Kerviel of breach of trust, forgery and computer hacking and, in addition to his jail sentence, ordered him to repay the full trading loss to his former employer, nearly USD $6.8 billion. Throughout the trial, Kerviel contended that his superiors knew he was engaging in risky behavior [France 24 report] and chose to ignore it. A lawyer for Kerviel said he will be appealing [Le Monde report, in French] the court's decision.

Kerviel was originally detained [JURIST report] in February 2008 as the investigation into the fraudulent trades was conducted. He was released in March 2008 [JURIST report] but instructed not to leave the country or communicate with a number of former colleagues. Police also questioned a second trader in connection with the fraudulent trades, but the man has since been named an assisted witness [JURIST reports] in the case against Kerviel, a designation that allows him to testify in the presence of a lawyer.

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Supreme Court declines to hear Guantanamo wiretapping appeal
Zach Zagger on October 5, 2010 8:22 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday denied certiorari [order list, PDF] in Wilner v. NSA [docket; cert. petition, PDF], in which lawyers for Guantanamo Bay [JURIST news archive] detainees were seeking disclosure of whether conversations with their clients were wiretapped by the National Security Agency (NSA) [official website]. The detainees' lawyers appealed a decision [opinion, PDF; JURIST report] by the US Court of Appeals for the Second Circuit [official website] holding that the NSA and the Department of Justice (DOJ) [official website] are not required to confirm nor deny the existence of electronic surveillance records under the Freedom of Information Act (FOIA) [text]. The case was brought on behalf of the lawyers by the Center for Constitutional Rights (CCR) [advocacy website] after the agencies invoked FOIA exceptions to information requests regarding warrantless electronic surveillance conducted pursuant to the Terrorist Surveillance Program (TSP) [JURIST news archive]. The CCR claims that the Supreme Court's refusal to hear the case has enabled the NSA and DOJ to get away with potentially illegal behavior [press release].

The intelligence agencies were given the authority to conduct warrantless wiretaps [AFP report] after the 9/11 attacks, but their existence was not known until 2005. The NSA's warrantless surveillance program has been harshly criticized since being disclosed by then-president George W. Bush. Last year, former DOJ attorney John Yoo defended [JURIST report] warrantless wiretapping practices in the Wall Street Journal, criticizing the Foreign Intelligence Surveillance Act (FISA) [text] as being obsolete and contributory in the government's failure to prevent the 9/11 attacks. In April 2009, the DOJ announced that it had limited [JURIST report] the NSA's electronic surveillance, but maintained that the information being received was still important. In February of that year, the US Court of Appeals for the Ninth Circuit [official website] denied an appeal by the DOJ seeking to stop a lawsuit [JURIST report] brought by an Islamic charity alleging it was the subject of an illegal NSA wiretap.

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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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