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Legal news from Friday, January 14, 2011




Obama eases Cuba travel restrictions
Dwyer Arce on January 14, 2011 7:24 PM ET

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[JURIST] US President Barack Obama [official profile] on Friday ordered the Departments of State, Treasury, and Homeland Security [official websites] to take steps to ease restrictions on travel and remittances [press release] to Cuba. The new regulations, to be promulgated as modifications of the Cuban Assets Control [31 CFR § 515.101 et seq.] and Customs and Border Protection [19 CFR § 122.151 et seq.] regulations, will allow greater travel from the US to Cuba for religious and educational purposes, the transfer of up to $2000 per year to non-family members in Cuba so long as they are not senior government or Communist Party leaders, and will allow all US international airports to service charter flights between the two countries. Explaining the reasons for the new regulations, the press release stated:
The President believes these actions, combined with the continuation of the embargo, are important steps in reaching the widely shared goal of a Cuba that respects the basic rights of all its citizens. These steps build upon the President's April 2009 actions to help reunite divided Cuban families; to facilitate greater telecommunications with the Cuban people; and to increase humanitarian flows to Cuba.
The regulations will build off of those issued in April 2009 [JURIST report], which eased travel and remittances restrictions for Cuban Americans and their families in Cuba only. The new rules will take effect once published in the Federal Register [official website] within two weeks.

The propriety of the US embargo on Cuba [CFR backgrounder], in effect since 1962, has been a topic of debate in recent years. In July, the US House of Representatives Committee on Agriculture voted to lift travel and trade restrictions [JURIST report] to Cuba. The Travel Restriction Reform and Export Enhancement Act [HR 4645 materials] would have eliminated travel bans to Cuba and prohibited money transfer restrictions. The Treasury Department lifted some travel restrictions and restrictions on money transfers [JURIST report] between Cuban Americans and their families in Cuba in September 2009. The department also authorized US telecommunications companies to work within Cuba to facilitate communication between families split between the two countries. In October 2008, the UN General Assembly [official website] adopted a resolution [JURIST report] urging the US to lift the embargo.




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Rights group urges Hungary to amend new media law
LaToya Sawyer on January 14, 2011 2:47 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] called for Hungary to amend its new media law [press release] that has caused outbreaks of public protests in Budapest and Vienna. The new law took effect January 1 and creates the National Media and Communications Authority (NMHH) [official website, in Hungarian], which controls private television and radio broadcasters, newspapers and online news sites. Under the law, the government can Impose costly fines on broadcasters, newspapers and news websites if their coverage is deemed unbalanced or immoral by the media authority. AI Deputy Director of International Europe and Central Asia programme, Andrea Huber, expressed fears that the components of the new law will severely infringe upon the rights members of the media:
The vagueness of the restrictions imposed by the new media legislation is very concerning and highly likely to have an adverse effect on freedom of expression. ... Facing the possibility of stringent fines or even closure, many journalists and editors are likely to choose the 'safe' option of modifying their content. ... The breadth of the restrictions, the lack of clear guidelines for journalists and editors and the strong powers of the new regulatory body all risk placing unnecessary and disproportionate restrictions to freedom of expression in Hungary.
The law has been harshly criticized by members of the media [JURIST report], as well as other European governments, as too restrictive of free expression, and the European Commission has requested more information on the law to determine whether it complies with EU law. In response to the protests, Prime Minister Viktor Orban [official profile] has stated that he is willing to amend the law if the EU finds it discriminatory, a determination he doubts because of its similarity [EUBusiness report] to other EU media laws in his opinion.

The Hungarian Parliament [official website, in Hungarian] approved the law [Reuters report] in December, amid protests and criticism. In 2008, the Constitutional Court of Hungary [official website] struck down [JURIST report] two proposals passed by the country's parliament to criminalize hate speech as unconstitutional infringements on the freedom of expression. The court held that the extremist speech that the amendments sought to prevent was not a danger to society because it was already marginalized. The first bill would have allowed recovery in cases where a person's ethnic group, rather than the individual person, was insulted. The second bill would have designated national, ethnic, racial or religious insults as misdemeanors punishable by up to two years in prison.




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Tunisia president declares state of emergency, leaves office
Drew Singer on January 14, 2011 1:32 PM ET

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[JURIST] Tunisian President Zine al-Abidine Ben Ali [official website] declared a state of emergency Friday amid nationwide protests, banning public gatherings and allowing police to fire on anyone refusing to obey orders. The declaration came a day after Ben Ali promised to cut prices [CNN report] on basic food supplies and order security forces not to use live ammunition except in cases of self-defense, as an attempt to end the protests. The protests were mostly against Ben Ali and his family, who controlled numerous sectors of the economy and are accused of corruption. Efforts to end the protests failed, however, and within hours of the announcement, Ben Ali had fled the country [BBC report] after 23 years in office, leaving Prime Minister Mohammed Ghannouchi [Reuters profile] to assume power as interim president. In an announcement on state television [video, in Arabic], Ghannouchi cited Chapter 56 of the Tunisian Constitution [text], allowing the president to delegate his powers to the prime minister. He went on to assert that the government would adhere to the rule of law and that the announced reforms would still be implemented.

In January, UN High Commissioner for Human Rights Navi Pillay [official website] urged the Tunisian government to investigate the deaths of public protesters and called on government security forces to admit use of excessive force against them [JURIST report]. Pillay expressed her "concern" over the violence and killings and called for a "transparent, credible and independent" investigation into the oppression of demonstrators. She encouraged the government to find those officials responsible for the violence stating, "If there is evidence that members of the security forces have used excessive force, or conducted extra-judicial killings, they must be arrested, tried and - if found guilty of offences - punished according to the law. It is essential that justice is done, and is seen to be done." Pillay also urged Tunisian officials to work towards adopting better policies to help alleviate the economic strife of its civilians and to "lift severe limitations on freedoms of assembly, opinion and expression, as well as association."




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Spain seeks extradition of accused Nazi guard
Hillary Stemple on January 14, 2011 12:59 PM ET

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[JURIST] The Spanish National Court [official website, in Spanish] announced Friday that they are seeking the extradition of alleged Nazi war criminal John Demjanjuk [NNDB profile, JURIST news archive] so he can stand trial on charges relating to his alleged involvement with the Flossenburg [HRP backgrounder] concentration camp where 60 Spanish citizens were killed during World War II. The Ukrainian-born Demjanjuk is currently standing trial [JURIST report] in Germany for 27,900 accessory accounts stemming from his alleged involvement as a guard at Sobibor concentration camp [Death Camps backgrounder]. In issuing the ruling, Judge Ismael Moreno indicated that Demjanjuk's actions caused him to be complicit in the commission of genocide [BBC report] and crimes against humanity. Moreno, acting under Spain's universal jurisdiction law, issued the European arrest warrant [AP report] so that Demjanjuk can be extradicted to Spain at the end of his trial in Germany. The investigation into Demjanjuk's alleged involvement in the camp began in 2008 following a request by Spanish Holocaust survivors to the National Court asking the court to investigate four alleged ex-Nazi camp guards, including Demjanjuk. Moreno issued arrest warrants for three of the accused men in September 2009, but an arrest warrant for Demjanjuk was not issued at that time because he had already been deported to Germany [JURIST reports] by the US. The German court trying Demjanjuk will now have to determine if he should be extradited [WSJ report] at the conclusion of his trial.

The German trial of Demjanjuk, which began in November 2009, has been marked by multiple appeals relating to his health, as well as efforts to dismiss the charges against him. Last May, a German court denied a motion to dismiss the charges [JURIST report] filed by the defense, which argued there was a lack of credible evidence. The court rejected the argument, saying they found the evidence against Demjanjuk to be strong. In October 2009, Demjanjuk was found fit to stand trial after the court rejected appeals [JURIST reports] relating to his health, although the court has limited hearings to no more than two 90-minute sessions per day. Demjanjuk fought a lengthy legal battle over his alleged involvement with Nazi death camps during World War II. He was deported to Germany after the US Supreme Court [official website] denied his stay of deportation [JURIST report]. It is alleged that Demjanjuk volunteered to work at Sobibor [Abendzeitung report, in German] after being captured by German forces while serving as a member of the Soviet army.




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DOJ files brief defending constitutionality of Defense of Marriage Act
Brian Jackson on January 14, 2011 11:22 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Thursday filed a brief [text, PDF] with the US Court of Appeals for the First Circuit defending the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) [text; JURIST news archive]. The appeal follows a July ruling [JURIST report] by the US District Court for the District of Massachusetts which found that Section 3 of DOMA, which defines marriages as being between a man and a woman, violates both the Equal Protection Clause of the Fifth Amendment and State Sovereignty under the Tenth Amendment [text]. In its brief, the DOJ contends that DOMA is in line with those sections of the constitution, stating that DOMA was "rationally related" to maintaining "consistency in the distribution of federal marriage-based benefits." The DOJ further contended that DOMA was permissible under Garcia v. San Antonio Metropolitan Transit Authority [text] because the act, as a "proper exercise of Congress' Spending Clause authority", does not violate the Tenth Amendment. Despite a footnote within the brief stating that the DOJ follows a practice of defending federal statutes even if the administration disagrees with the law, rights groups expressed disappointment [HRC press release] with the filing.

Likely buoyed by the result in Massachusetts, in November other rights groups filed multiple suits challenging the constitutionality of DOMA [JURIST report]. Consistent with its statement in this most recent brief, the Obama administration has extended some federal benefits [JURIST report] to same-sex couples, including allowing domestic partners to be added to insurance programs, to use medical facilities, and to be included in family size and house allocation considerations. In June, Obama ordered executive agencies to expand [JURIST report] federal childcare subsidies and services and travel and relocation payments to the same-sex partners of federal employees and their children.




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Kazakhstan parliament approves referendum to extend presidential term
Andrea Bottorff on January 14, 2011 11:12 AM ET

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[JURIST] Both houses of the Kazakhstan Parliament [official website] Friday voted unanimously to amend the constitution to authorize a referendum that would extend the term of President Nursultan Nazarbayev [official website; BBC profile] to 2020, bypassing two presidential elections. The vote overruled Nazarbayev's decision last week to veto the proposed referendum [Reuters report]. Nazarbayev's current term is set to expire in 2012 [AP report], but if he approves the parliamentary vote, he could achieve a 30-year term in office. Supporters of the referendum maintain that it is necessary [Interfax report] in order to ensure that Nazarbayev can continue to address issues facing the country. They also indicated that continuity of government is necessary for the country's continued growth. Opponents have argued that Nazarbayev's political party is attempting to eliminate any political competition. The Office for Democratic Institutions and Human Rights (ODIHR) [official website] emphasized the need for democratic elections [press release], arguing that the proposed referendum "does not offer a genuine choice between political alternatives and would infringe on the opportunity of citizens to hold their representatives accountable and to effectively exercise their right to vote and be elected." The referendum will reportedly take place as early as March 2011.

The Kazakhstan Parliament initially approved [JURIST report] the referendum last month. In June, Nazarbayev announced that he would not sign a controversial law [JURIST report] that would grant him several presidential powers for life, even if he stepped down from office. Nazarbayev's supporters believed that the president has earned such protections due to his ability as a nation builder. The draft law moved quickly through Kazakhstan's parliament in May with the upper and lower [JURIST reports] houses approving the bill in under a week. In 2007, Nazarbayev approved a constitutional amendment [JURIST report] removing term limits on his own presidency, effectively allowing him to remain president for life.




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Federal judge dismisses request to end delay in issuance of drilling permits
Andrea Bottorff on January 14, 2011 10:28 AM ET

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[JURIST] A federal judge for the US District Court for the Eastern District of Louisiana [official website] on Thursday dismissed a request by the Ensco Offshore Company [official website] to end an alleged delay in the issuance of drilling permits. US District Judge Martin Feldman [Judgepedia profile] said it is unclear if the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) [official website] must process drilling requests within a certain amount of time [AP report]. Earlier this week, ENSCO sought a preliminary injunction [JURIST report] in connection with a lawsuit [text, PDF] the company filed last year against the moratorium on issuing drilling permits, which would have compelled the US Department of Interior (DOI) [official website] to "expeditiously" process five pending permit applications the company has filed. Ensco told the court that although the moratorium, which was enacted after the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive], had been lifted [JURIST report] officials continue to unreasonably delay action on deepwater drilling permit applications. Although part of Ensco's lawsuit was dismissed in November [Bloomberg report], complaints regarding the issuance of permits were allowed to proceed. The US Department of Justice (DOJ) [official website] denies there are delays [AP report] and say that the additional time is due to new safety precautions to which the DOI must adhere.

In December, the DOJ filed suit [complaint text; press release] against units of British Petroleum (BP) [corporate website] and several other companies over the Deepwater Horizon oil spill [JURIST report]. In September, a federal judge denied [JURIST report] the government's motion to dismiss a lawsuit filed by several drilling companies challenging the offshore drilling moratorium. The judge held that there were "no substantial changes" between the July 12 directive and its predecessor, issued on May 28, that the new moratorium did nothing to amend or prevent the wrongs found in the first and that the wrongful behavior alleged in the original order could reasonably be expected to occur as a result of the more recent iteration. The US District Court for the Eastern District of Louisiana rejected a request to reinstate the May 28 ban in July, weeks after the US Court of Appeals for the Fifth Circuit similarly declined [JURIST reports]. The DOJ originally asked the appeals court to stay the preliminary injunction [JURIST report] in June, on the basis that another deepwater spill could overwhelm the ongoing efforts to clean up the BP Deepwater Horizon oil spill with catastrophic results. Lawyers for the DOJ also claimed that the district judge abused his discretion in issuing the injunction. The Deepwater Horizon oil spill, which occurred in April of last year, resulted in an estimated 4.9 million barrels of oil flowing into the Gulf of Mexico.




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UN rights chief urges investigation into protestor deaths in Tunisia
Carrie Schimizzi on January 14, 2011 10:04 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official website] on Thursday urged [press release] the Tunisian government to investigate the recent deaths of public protestors [NYT report] and called on government security forces to admit use of excessive force against them. According to government statistics, at least 21 civilians have been killed since the protests over unemployment and rising food costs began on December 17. According to Pillay, however, the number of deaths is most likely even higher. Pillay expressed her "concern" over the violence and killings and called for a "transparent, credible and independent" investigation into the oppression of demonstrators. She encouraged the government to find those officials responsible for the violence stating, "If there is evidence that members of the security forces have used excessive force, or conducted extra-judicial killings, they must be arrested, tried and - if found guilty of offences - punished according to the law. It is essential that justice is done, and is seen to be done." Pillay also urged Tunisian officials to work towards adopting better policies to help alleviate the economic strife of its civilians and to "lift severe limitations on freedoms of assembly, opinion and expression, as well as association." President Zine El Abidine Ben Ali on Thursday promised [CNN report] to cut prices on basic food supplies and order security forces not to use live ammunition except in cases of self-defense.

Tunisia has been accused of numerous human rights violations over the past few years. In 2009, Amnesty International (AI) [advocacy website] released a report [JURIST report] alleging Tunisia was continuing to commit hundreds of human rights abuses despite previous vows to cease. The report detailed the arrest, torture, and detention of prisoners in the name of national security, and even the kidnapping and forced return of Tunisians living abroad. In June 2008, AI released a report [text] accusing Tunisia of committing widespread human rights abuses under overly-broad anti-terrorism legislation. AI also criticized the US, as well as European and other Arab countries, for turning over terror suspects to Tunisian authorities [JURIST report] despite allegations of torture and other abuses. In February, the European Court of Human Rights ruled against the deportation of a former Tunisian terrorism suspect, finding he would likely be subjected to torture [JURIST report] in violation of Article 3 of the European Convention on Human Rights [PDF text] if returned to Tunisia. In September 2007, Human Rights Watch released a report [text] accusing Tunisian officials of mistreating two former Guantanamo detainees [JURIST report] after they were returned to the country.




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Rights group urges UN to cooperate with ICC relationship agreement
Carrie Schimizzi on January 14, 2011 9:35 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Thursday urged [press release] the United Nations (UN) [official website] not to aid alleged international war criminals after they provided transportation to Amhad Harun [INTERPOL profile], whose arrest warrant [JURIST report] was issued by the International Criminal Court (ICC) [official website] in 2007 for war crimes related to the ongoing violence in Darfur [JURIST news archive]. According to AI, the UN Mission in Sudan (UNMIS) provided Harun a helicopter so he could attend a meeting. Under Article 3 of the Negotiated Relationship Agreement [agreement, PDF] between the ICC and the UN, both organizations are supposed to "cooperate closely with each other and consult each other on matters of mutual interest..." and that the UN violated that agreement by providing transportation for Harun. AI's representative at the UN, Renzo Pomi, criticized the UN's actions in the statement:
It's outrageous that someone who is wanted by the ICC for crimes against humanity and war crimes is given transport by UN without being arrested. While the efforts by UNMIS to defuse tensions and prevent human rights violations should be applauded, providing a safe haven to somebody wanted for war crimes and crimes against humanity, instead of arresting him, is inconsistent with the UN's obligations.
Harun, a former Sudanese interior minister, faces 20 counts of crimes against humanity, including murder, rape and torture, and 22 counts of war crimes, including attacks against the civilian population, destruction of property and pillaging.

Last year, ICC Chief Prosecutor Luis Moreno-Ocampo called on the UN Security Council [official website] to support the arrest [JURIST report] of Harun and another war crimes suspect. Ocampo urged the Security Council to secure the execution of the outstanding arrest warrants in light of the fact that the Sudanese government, which bears the primary responsibility to do so, had not. Also last year, Ocampo referred Sudan to the Security Council [JURIST report] for lack of cooperation in the pursuit of Harun and Kushayb. ICC Pre-Trial Chamber I released a decision [text, PDF] asking the Security Council to take any steps it deems appropriate to compel Sudan to comply with its obligation under Security Council Resolution 1593 [text, PDF], which provides that "the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.'' Since the ICC concluded that it has exhausted all its resources, the responsibility will now be shifted to the Security Council to take appropriate action. Sudan, which is not a permanent member of the ICC under the Rome Statute [text], refuses to recognize the court's jurisdiction, stating that "the International Criminal Court has no place in this crisis at all."




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Kansas AG requests to join health care lawsuit
Ann Riley on January 14, 2011 8:29 AM ET

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[JURIST] Kansas Attorney General Derek Schmidt [official website] sent a letter [text] on Wednesday to Florida Attorney General Pamela Bondi [official website] requesting that Florida add Kansas as an additional party plaintiff to its lawsuit [complaint, PDF; JURIST news archive] challenging the constitutionality of the recently enacted health care reform law [HR 3590 text; JURIST news archive]. Expressing his desire to challenge the constitutionality of the Patient Protection and Affordable Care Act (PPACA), Schmidt wrote:
The Act's mandate that all citizens and legal residents of the United States maintain qualifying healthcare coverage or pay a penalty (the individual mandate) is an unprecedented attempt to expand federal power that would encroach on the sovereignty of the State of Kansas and on the rights of our citizens. Our belief is that this expansion of federal power exceeds the authority granted to the federal government by the United States Constitution.
In requesting that Kansas be joined, Schmidt fulfilled a campaign promise he made during the general election. Schmidt took office on Monday. In October, a judge for the US District Court for the Northern District of Florida [official website] denied a motion to dismiss [opinion, PDF; JURIST report], allowing the lawsuit to continue through the courts.

Last month, a judge for the US District Court for the Eastern District of Virginia [official website] ruled [opinion, PDF; JURIST report] that the minimum coverage provision of the law is unconstitutional. Also in December, federal judges in Virginia and New Jersey [JURIST reports] dismissed lawsuits challenging the health care law's constitutionality. In November, the US Supreme Court [official website, JURIST news archive] declined to hear [JURIST report] the first preliminary challenge to the law. In October, a federal judge in Michigan ruled [order, PDF; JURIST report] that the law is constitutional under the Commerce Clause [text] as it addresses the economic effects of health care decisions, and that it does not represent an unconstitutional direct tax. Florida's lawsuit, filed in March and joined by 20 states [JURIST reports] and the National Federation of Independent Businesses (NFIB) [association website; JURIST report], seeks injunctive and declaratory relief against what it alleges are violations of Article I and the Tenth Amendment [texts] of the Constitution, committed by levying a tax without regard to census data, property or profession, and for invading the sovereignty of the states.




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