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Legal news from Thursday, October 14, 2010




Europe rights court to review Macedonia role in CIA extraordinary rendition
Megan McKee on October 14, 2010 4:23 PM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] announced Thursday that it will review the involvement [press release] of the Former Yugoslav Republic of Macedonia (FYROM) in the extraordinary rendition [JURIST news archive] and torture of Khaled El-Masri [JURIST news archive] by the Central Intelligence Agency (CIA) [official website]. On orders from the US, in 2003, Macedonian authorities seized [Guardian report] El-Masri, a German citizen of Lebanese descent, while he was traveling in Macedonia and held him incommunicado for 23 days. He was then handed over to the CIA and transported to a secret detention facility in Afghanistan where he was held for four months in allegedly inhumane conditions, interrogated and abused. The case against the FYROM is the first in which a government has been called before an international tribunal to explain its involvement in the CIA's extraordinary rendition program. El-Masri's case was brought by the Open Society Justice Initiative [advocacy website] and was communicated to the Macedonian government by the ECHR on October 8. The FYROM has continued to deny its involvement in El-Masri's detention, and the US has never officially acknowledged his rendition.

In May, a lawyer from the Spanish National Court Office of the Prosecutor petitioned [JURIST report] judge Ismael Moreno to issue arrest warrants for 13 CIA agents who allegedly kidnapped El-Masri. The Office of the Prosecutor alleged that the court had jurisdiction to issue the warrants because the agents made a stop in Spanish territory using hidden identities without official Spanish government authorization to do so. In 2008, El-Masri petitioned [ACLU materials; JURIST report] the Inter-American Commission on Human Rights (IACHR) [official website] to open an investigation of human rights violations by the US, alleging that he was tortured by the CIA. In 2007, the US Supreme Court rejected [JURIST report] without comment El-Masri's petition for certiorari, ostensibly supporting the Bush administration's contention that allowing El-Masri's federal lawsuit to proceed would require the revelation of state secrets. Also in 2007, the German Justice Ministry said that it would not press a formal request [JURIST report] to extradite the 13 CIA agents suspected of participating in El-Masri's alleged rendition after the Bush administration informed them it would not comply with a such a request, despite a 2006 German investigation that concluded there was no evidence to disprove El-Masri's allegations.




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Rwanda opposition leader arrested over terror allegations
Drew Singer on October 14, 2010 3:46 PM ET

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[JURIST] Rwandan police on Thursday arrested opposition leader Victoire Ingabire Umuhoza [campaign website; JURIST news archive], accusing her of being involved in the formation of a terrorist organization. Ingabire was implicated, authorities say, during investigations [AP report] into the activities of a man who was a former commander of a Hutu militia group operating in neighboring Congo. Ingabire was also arrested in April for allegedly denying [JURIST report] the 1994 Rwandan genocide [JURIST news archive] and collaborating with terrorists, although rights groups say that both arrests are the Rwandan government's attempts to prevent opposition in the country.

In May, Rwandan authorities arrested [JURIST report] US lawyer and JURIST Forum [website] contributor Peter Erlinder [professional profile; JURIST news archive] on charges of genocide denial while he was in Rwanda to prepare his defense of Umuhoza. Erlinder returned to the US [JURIST report] in June after spending 21 days in a Rwandan prison. In March, an aid to Ingabire who had been convicted in absentia, pleaded guilty to genocide charges [JURIST report] in exchange for a reduced prison sentence of 17 years.




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Rights groups reject invitation to testify in Sri Lanka civil war probe
Megan McKee on October 14, 2010 2:55 PM ET

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[JURIST] Human Rights Watch (HRW), Amnesty International (AI) and the International Crisis Group (ICG) [advocacy websites], on Thursday declined [joint letter] an invitation from Sri Lanka's Lessons Learnt and Reconciliation Commission (LLRC) to testify before the probe investigating the end of the nation's civil war [JURIST new archive]. In rejecting the LLRC's invitation the groups stated:
While we would welcome the opportunity to appear before a genuine, credible effort to pursue accountability and reconciliation in Sri Lanka, the LLRC falls far short of such an effort. It not only fails to meet basic international standards for independent and impartial inquiries, but it is proceeding against a backdrop of government failure to address impunity and continuing human rights abuses.
The groups went on to state that the LLRC's mandate, composition and procedures and the nation's human rights environment make it impossible to carry out a free and independent inquiry into war crimes. AI is particularly concerned [AFP report] about the suitability of a number of former officials serving on the commission who have defended Sri Lanka against war crimes accusations, and the lack of witness protection provisions. In the recent past, the advocacy groups have accused [JURIST report; JURIST report] Sri Lanka of carrying out various human rights violations during the final months of the 30-year civil war.

In August, Sri Lankan Defense Secretary Gotabaya Rajapaksa [official profile] appeared before a government-backed commission and defended [JURIST report] the actions of the government during the conflict with the rebel Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive]. The LLRC has been criticized [HRW press release] as a superficial attempt to stave off an international investigation into accusations of widespread and severe human rights abuses by government forces during the war. Gotabaya Rajapaksa appeared before the commission and stated that the government took every effort to avoid civilian casualties. He also indicated that a major focus of the military campaign was providing humanitarian relief to regions of the country that had been under LTTE control. According to the secretary, the military risked higher casualties in order to allow humanitarian convoys into regions where fighting between the military and LTTE was heavy. Gotabaya Rajapaksa also argued that the UN and the international community were to blame for civilian casualties because they failed to ensure that the LTTE released civilians under their control. International pressure on Sri Lanka to conduct a thorough investigation into the civil war continues to mount, despite the government-backed commission.




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Federal judge rules Texas Pledge of Allegiance constitutional
Andrea Bottorff on October 14, 2010 10:57 AM ET

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[JURIST] The US Court of Appeals for the Fifth Circuit [official website] ruled [opinion, PDF] Wednesday that the words "one state under God" in the Texas Pledge of Allegiance do not violate the First Amendment [text] of the US Constitution, upholding a 2009 district court opinion [text, PDF]. A Texan couple filed the suit against the state, arguing that the pledge violated the separation of church and state mandated in the Establishment Clause [Cornell LII backgrounder]. The couple claimed that their school-age children were harmed [Dallas News report] by being required to recite the pledge at school, particularly if the children refused to participate. The appeals court ruled:
The pledge is a patriotic exercise, and it is made no less so by the acknowledgment of Texas's religious heritage via the inclusion of the phrase "under God." A pledge can constitutionally acknowledge the existence of, and even value, a religious belief without impermissibly favoring that value or belief, without advancing belief over non-belief, and without coercing participation in a religious exercise. Texas's pledge is of this sort and consequently survives this challenge.
The controversial words were added to the Texas Pledge of Allegiance in 2007 [TSL backgrounder].

Earlier this year, the US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] that a teacher-led recitation of the national Pledge of Allegiance [text; JURIST news archive] in public schools does not violate the constitution [JURIST report]. Sacramento atheist Michael Newdow [JURIST news archive] had challenged the practice on behalf of several families, arguing that the phrase "under God" violated the Establishment Clause. In 2008, the US Court of Appeals for the Eleventh Circuit [official website] upheld [JURIST report] part of a Florida law [text] that requires students in grades kindergarten through 12 to obtain parental permission before they can be excused from reciting the Pledge of Allegiance. The court held that another provision requiring all students to stand, even if excused from reciting the Pledge, violates the First Amendment, and is therefore not enforceable.




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Ontario high court rules witnesses may wear niqab unless unfair to accused
Jay Carmella on October 14, 2010 10:12 AM ET

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[JURIST] The Court of Appeal for Ontario [official website] ruled [judgment, PDF] Wednesday that a witness does not have to remove her niqab [JURIST news archive] unless the failure to do so will prevent the accused from receiving a fair trial. The court stopped short [CBC report] of issuing a ruling that would require all courts to follow in a similar fashion. The decision emphasizes the need for each situation to be considered on a case by case basis. The court wrote:
If, in the specific circumstances, the accused's fair trial right can be honoured only by requiring the witness to remove the niqab, the niqab must be removed if the witness is to testify. I would hope, however, that if the individual rights recognized in the Charter are treated as something more than additional weapons in the lawyer's legal arsenal, the parties will engage in good faith efforts to reconcile competing interests and produce a satisfactory resolution that recognizes and respects both the accused's right to a fair trial and the witness's right to exercise her religious beliefs. I repeat, each case must turn on its own facts. The full facts of this case, as they relate to this issue, are not known.
The lower court in this case required the victim to remove her veil. However, the court of appeal found that the lower court did not conduct a proper inquiry into the woman's religious rights. The victim has accused her cousin and uncle of repeatedly sexually abusing her between the ages of 6 and 10.

The issue surrounding Muslim women and their traditional clothing remains controversial in Canada and around the world. Last week, the French Constitutional Council [official website, in French] ruled [JURIST report] that a bill [materials, in French] making it illegal to wear the Islamic burqa, niqab or other full face veils in public, conforms with the Constitution. Earlier this month, a Dutch politician suggested that the Netherlands will ban the burqa [JURIST report] as part of the government's plan to form a minority coalition. In August, Austria's conservative Freedom Party [official website, in German] called for a special vote [JURIST report] on whether to ban face veils and the construction of minarets, two of the most visible symbols of the Islamic faith. Many members of the Muslim Canadian Congress (MCC) [advocacy website] believe [JURIST comment] that Canada should consider banning the wearing conservative Muslim clothing.




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Indonesia court strikes down law allowing government to ban books
Jay Carmella on October 14, 2010 9:04 AM ET

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[JURIST] The Indonesian Constitutional Court [official website, in Bahasa] on Wednesday overturned [press release, in Bahasa] a law that has allowed the Indonesian government to ban books it deemed controversial for nearly 50 years. The court found [Jakarta Post report] that giving the Attorney General [official website, in Bahasa] the authority to ban books violated the Indonesian Constitution [text] by denying basic human rights without due process of the law. While the government will no longer have the ability to ban books, the power to do so still exists in the courts [Jakarta Globe report]. More than 400 books have been banned in Indonesia over the last 50 years, including 22 books since 2006. The court's ruling will only affect the government's ability to ban books going forward, and books previously banned will remain so. The court upheld the government's ability to monitor the circulation of printed material to maintain public order, but emphasized that this could not amount to the banning or confiscating of those materials.

The decision is a victory for human rights groups that have been pushing for reform in Indonesia. In June, Human Rights Watch (HRW) [advocacy website] urged [JURIST report] the Indonesian government to release secession activists and adhere to international standards of free speech. In April, the Constitutional Court upheld [JURIST report] a controversial anti-blasphemy law enacted in 1965 by the first Indonesian president. The court rejected the legal challenge raised by a coalition of human rights groups and social activists supporting the Wahid Organization, a civil organization that advocates for religious pluralism in Indonesia. In March, the court rejected [JURIST report] a challenge to a controversial anti-pornography law. The law [text, in Bahasa] was purportedly designed to protect younger generations from pornographic and lewd materials. Critics challenged the bill for being too broad, discriminating against women, and targeting aspects of Indonesian tradition and culture, but the court rejected those arguments




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State AGs to investigate foreclosure practices
Erin Bock on October 14, 2010 8:33 AM ET

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[JURIST] Attorneys general from all 50 states and the District of Columbia announced [joint statement, PDF] Wednesday that they have formed a bipartisan group called the Mortgage Foreclosure Multistate Group (MFMG), which will be investigating allegations of procedural defects committed by mortgage loan companies during foreclosure processes. The group also includes state bank and mortgage regulators. In a joint statement, the MFMG explained its investigation will focus on "robo-signing," a process by which individuals signed affidavits and other foreclosure documents without having personal knowledge of the facts and without confirming the accuracy of supporting documentation. The group asserted that such practices "constitute a deceptive act and/or an unfair practice." The MFMG will also look into allegations that affidavits were signed without a notary public being present, which is violative of state law. The group is being led by Iowa Attorney General Tom Miller [official website] and will work to satisfy several objectives including stopping and investigating improper practices, evaluating remedies, and establishing a vehicle for independent monitoring of future practices. Miller stated [press release] that this list of objectives is not exhaustive:
These are starting points, and it's possible this group may limit, expand or change its objectives. What's important here is this is a cooperative and coordinated effort by states to address a serious problem. This is not simply about a glitch in the paperwork. It's also about some companies violating the law and many people losing their homes.
Investigations have already been underway in some states, and employees of several large lending companies have admitted in depositions that they failed to read documents prior to signing them [AP report]. Bank of America [corporate website] has placed a moratorium on foreclosure sales [statement] until the company has a chance to assess the accuracy of past foreclosure decisions and documentation. On Tuesday, Wells Fargo [corporate website] announced [statement] that it would not place a moratorium on sales, stating that they frequently conduct reviews of their foreclosure practices and their affidavits have been accurate.

In June, Countrywide Home Loans, Inc., a subsidiary of Bank of America, reached a $108 million settlement agreement [JURIST report] with the Federal Trade Commission (FTC) [official website] to resolve charges that the subsidiary collected excessive fees from homeowners facing foreclosure. Lenders and insurance companies have also recently come under fire for fraud relating to sub-prime mortgage exposure. Last month, a federal judge refused to dismiss a suit [JURIST report] against American International Group (AIG) [corporate website] accusing the company of fraudulent intent to mislead the market and failing to disclose to its shareholders the risks the company was taking in issuing sub-prime mortgages. In August, a federal judge rejected a $75 million settlement [JURIST reports] agreement between Citigroup [corporate website] and the US Securities and Exchange Commission (SEC) [official website] for misleading investors about the company's exposure to sub-prime mortgage-related assets. Last year, the US Senate [official website] rejected a bill [S 896 materials] that would have aided homeowners in foreclosure [JURIST report] by allowing bankruptcy judges to modify mortgages from lenders that had not already offered better terms to their borrowers.




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