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Legal news from Thursday, May 26, 2011

Wisconsin judge invalidates union bargaining law
Julia Zebley on May 26, 2011 4:51 PM ET

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[JURIST] Dane County Circuit Court [official website] Judge Maryann Sumi on Thursday voided [opinion, PDF; findings of fact, PDF] the Budget Repair Bill [Senate Bill 11 text, PDF], Wisconsin's controversial measure limiting the collective bargaining rights of public employee unions, for violating the state's open meeting rules. Sumi, the judge who temporarily enjoined the law [JURIST report], clarified that her ruling is not on the legality of the law, but merely the violation of procedure. Wisconsin's open meetings law [materials] requires, "24 hours' notice, or two hours' notice if 'good cause' is shown." She clarified that legislative privilege does not bar this requirement:
This case is the exemplar of values protected by Open Meetings Law: transparency in government, the right of citizens to participate in their government, and respect for the rule of law. It is not this court's business to determine whether 2011 Wisconsin Act 11 is good public policy or bad public policy; that is the business of the Legislature. It is this court's responsibility, however, to apply the rule of law to the facts before it.
Republican state Senator Scott Fitzgerald [official website] has been the only supporter of the law to comment [press release] on the ruling, saying: "There's still a much larger separation-of-powers issue: whether one Madison judge can stand in the way of the other two democratically-elected branches of government. The Supreme Court is going to have the ultimate ruling, and they're still scheduled to hear the issue on June 6."

In March, Sumi issued an order [JURIST report] clarifying that the temporary restraining order prohibits not only publication of the bill, but implementation of its provisions as well. Sumi's order was issued in response to debate among government officials [JURIST report] that the law went into effect after it was published on the Wisconsin Legislative Bureau's website. The judge's temporary restraining order stemmed from a lawsuit [JURIST report] filed earlier in March month by District Attorney Ismael Ozanne claiming that Republican legislators passed the bill in violation of Wisconsin's open meetings law.

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US House passes $690 billion defense authorization bill
Zach Zagger on May 26, 2011 4:05 PM ET

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[JURIST] The US House of Representatives passed the $690 billion National Defense Authorization Act for Fiscal Year 2012 [HR 1540 materials] Thursday, approving the basic funding plan with a 322-96 vote [roll call vote]. The bill contains many controversial provisions such as prohibitions on the use of funds to transfer Guantanamo [JURIST news archive] detainees to the US or other foreign countries, making it difficult for US President Barack Obama to close [JURIST report] the US Naval detention facility. Also on Thursday, the House passed an amendment to the bill 246-173 [roll call vote] proposed by Representative Vern Buchanan (R-FL) [official website] to require all foreign terror suspects to be tried by military tribunals. The Obama administration issued a statement earlier this week threatening a veto if such a provision is in the bill. The statement said such a provision:
is a dangerous and unprecedented challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts and the circumstances of each case and our national security interests. It unnecessarily constrains our Nation's counterterrorism efforts and would undermine our national security, particularly where our Federal courts are the best—or even the only—option for incapacitating dangerous terrorists.
The bill also contains a provision [Sec. 533] that would delay the the repeal of Don't Ask Don't Tell (DADT) [10 USC § 654; JURIST news archive], which was on track [JURIST report] to be completely repealed by midsummer. The provision requires the chiefs of each military branch to provide written certification that the repeal of DADT be harmful to the "readiness, effectiveness, cohesion, and morale" of armed forces units. Laura Murphy, director of the American Civil Liberties Union (ACLU) [advocacy website] Washington Legislative Office, responded [press release] to the DADT condition:
Trying to throw a roadblock up to derail "Don't Ask, Don't Tell" repeal at this point is a desperate attempt to postpone the inevitable. For nearly 20 years, lesbian, gay and bisexual service members have been forced to hide who they are and who they love in order to serve their country. It was with the will of the president, the uniformed and civilian leadership of the military and Congress itself that [DADT] was repealed and its implementation will continue to move forward successfully despite the attempts by some House members to disrupt it.
The bill must still be reconciled [AP report] with the Senate version which the Armed Forces Committee [official website] will begin crafting on June 13.

Last January, Obama signed the last defense authorization [JURIST report] bill which also contained limits on the transfer of Guantanamo detainees. The Ike Skelton National Defense Authorization Act of 2011 [HR 6523] imposed significant setbacks to the Obama administration's self-imposed deadline [JURIST report] for closing the military prison at Guantanamo.

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Federal appeals court restricts inequitable conduct defense for patent law
Julia Zebley on May 26, 2011 3:46 PM ET

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[JURIST] The US Court of Appeals for the Federal Circuit [official website] on Wednesday restricted [opinion, PDF] the use of the "inequitable conduct" defense for invalidating patents. Inequitable conduct previously allowed the judge to use his or her discretion in invalidating an otherwise valid patent if he or she believed the patent-holder had engaged in unfair practices when applying to the US Patent and Trademark Office (PTO) [official website], contrary to Rule 56 [text] of patent law. If it could be shown with clear and convincing evidence that the patent-holder withheld information, the patent would be found unenforceable. Sitting en banc, the court in Therasense, Inc. v. Becton, Dickinson and Co limited this defense to when the patent-holder's bad acts were related directly to the patent, and they had the intent to deceive others.
This court holds that, as a general matter, the materiality required to establish inequitable conduct is but-for materiality. When an applicant fails to disclose prior art to the PTO, that prior art is but-for material if the PTO would not have allowed a claim had it been aware of the undisclosed prior art. Hence, in assessing the materiality of a withheld reference, the court must determine whether the PTO would have allowed the claim if it had been aware of the undisclosed reference. In making this patentability determination, the court should apply the preponderance of the evidence standard and give claims their broadest reasonable construction.
Proving the intent requirement was also elevated to a "but-for" test. The court left an exception for egregious conduct not requiring the but-for standard that would render patents unenforceable.

This case builds on the 2009 decision, Exergen Corp. v. Wal-Mart Stores Inc. and SAAT Systems [text, PDF], which forced allegations of inequitable conduct to be pleaded specifically rather than generally. Any allegation must detail individuals' guilty inequitable conduct, the knowledge or information withheld or hidden from the PTO and how that conduct affected the patent application or the subsequent patent itself. This term, the US Supreme Court [official website] heard oral arguments [JURIST report] in Global-Tech Appliances, Inc. v. SEB, SA [oral arguments transcript, PDF]. The court will determine whether the state of mind necessary for for a finding of inducing patent infringement is "deliberate indifference of a known risk" as proposed by the US Court of Appeals for the Federal Circuit or "purposeful, culpable expression and conduct", as stated by the court in MGM Studios, Inc. v. Grokster, Ltd. [Oyez backgrounder].

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Minnesota governor vetoes bills restricting abortion rights
Zach Zagger on May 26, 2011 2:55 PM ET

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[JURIST] Minnesota Governor Mark Dayton [official website] vetoed a pair of bills [veto HF 201; veto HF 936] Wednesday that restricted state funding for abortions and banned them altogether after 20 weeks. Dayton vetoed Chapter 59 [text] of Minnesota House File 936, which would have banned all abortions after 20 weeks based on "substantial medical evidence that an unborn child is capable of experiencing pain by 20 weeks after fertilization." In Dayton's veto he said, "imposing civil penalties and making it a felony for a doctor to deliver care that is in the best interest of the patient is unconscionable." Dayton also vetoed Chapter 56 [text] of House File 201, which mandated that public funding to state-sponsored cannot be used to provide abortions. The veto letter stated that the law:
infringes on a woman's basic right to health and safety—a right every woman has, regardless of how she receives her health coverage. Our place is not between a woman and her doctor. The law already prescribes that state funding may only be used for abortions in cases of rape or incest, for health or therapeutic reasons, and when a woman's life is in danger. House File 201 would interfere with critical and difficult medical decisions.
Dayton's campaign was supported by abortion rights groups [Minneapolis Star Tribune report], and he was expected to issue the vetoes.

Earlier this week, a judge for the US District Court for the Southern District of Ohio [official website] upheld an Ohio law that limits the use of the "abortion pill," overturning a 2006 injunction [JURIST reports]. The law requires that the use of the pill, RU-486 [FDA guidelines], conform with federal guidelines, which currently do not allow the pill to be used after seven weeks of pregnancy. Oklahoma has also prohibited the use of RU-486 [JURIST report]. In April, the Ohio Senate approved a bill [JURIST report] that would limit the availability of abortions after 20 weeks. That bill is pending in the House. Missouri, Indiana, Alabama and Oklahoma [JURIST reports] have each passed legislation this year which restricts the abortion procedure after 20 weeks of pregnancy. Also, earlier this year, a legislative committee in the Ohio House of Representatives advanced [Columbus Dispatch report] the "Heartbeat Bill," [HB 125 text], which would ban abortions after the point at which a fetus's heartbeat becomes detectable in the womb.

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ACLU files class action suit against Indiana immigration law
Julia Zebley on May 26, 2011 1:56 PM ET

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[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] filed [press release] a class action lawsuit [complaint, PDF] on Wednesday in the US District Court for the Southern District of Indiana [official website] challenging a controversial Indiana immigration law [SEA 590 text; JURIST report]. The law, inspired by an Arizona law [SB 1070 text; JURIST news archive], requires individuals to provide proof of their legal status at all times, calls for all public meetings, websites and documents to be in English only and makes undocumented aliens ineligible for in-state tuition rates, financial aid, grants or scholarships. The ACLU argues this law will lead to warrantless arrests of authorized and unauthorized aliens, as well as racial profiling:
Insofar as SEA 590 authorizes state and local law enforcement to arrest persons without reasonable suspicion or probable cause of any unlawful contact, much less criminal activity, it violates the Fourth Amendment's prohibition on unreasonable seizures. SEA 590 also conflicts with and is preempted by the Immigration Nationality Act, which provides a comprehensive statutory framework for the regulation of immigration that among other things, contains detailed provisions governing the detention and release of non-citizens in removal proceedings.
The suit is filed on behalf of three individuals who "will be" harassed by the law. State Senator Mike Delph [official website], the author of the law, responded condemning the lawsuit [text]. The ACLU has mounted a similar suit in Utah, which resulted in an injunction [JURIST reports].

Last month, the Indiana House of Representatives also approved legislation [JURIST report] to revoke tax credits from businesses that hire illegal immigrants and require the use of the E-verify System [official website] to check the eligibility status of employees. Similar immigration laws have been enacted across the country. The Georgia General Assembly approved a bill requiring police to check the immigration status [JURIST report] of anyone they have probable cause to believe has committed a criminal offense and requiring businesses to use E-Verify to check the immigration status of potential employees. Similar legislation has also been approved in Alabama, Virginia and Oklahoma [JURIST reports]. Arizona's law is currently enjoined, and Governor Jan Brewer has pledged to appeal to the US Supreme Court [JURIST reports].

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Federal judge allows lawsuit over BP Deepwater Horizon drilling leases
Zach Zagger on May 26, 2011 1:34 PM ET

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[JURIST] A judge for the US District Court for the Southern District of Alabama [official website] ruled [opinion, PDF] Monday that environmental groups' lawsuit, challenging the government approval of oil drilling leases granted to the British Petroleum (BP) Deepwater Horizon rig in the Gulf of Mexico, may continue. The Southern Environmental Law Center and the Defenders of Wildlife [advocacy websites] claim that the Bureau of Ocean Energy, Management, and Enforcement (BOEMRE) [official website], formerly the Minerals Management Service (MMS), violated the National Environmental Policy Act (NEPA) [EPA materials] and the Endangered Species Act (ESA) [text] by approving more 221 drilling licenses for the Gulf of Mexico after last year's Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive]. They argue that further licenses should not be granted until a new Environmental Impact Statement (EIS) is prepared. The government argues that the claim is moot since it is already preparing a new EIS and that it is not ripe since there is no way to determine whether future lease sales will be approved based on the completed EIS. But the court held that the environmental groups are challenging leases that were already granted after the disaster in reliance on the now invalid EIS. The court also rejected the government's attempt to dismiss a claim that BOEMRE failed to insure that there was likely "no jeopardy" to endangered species. However, the court did dismiss one of the group's claims that BOEMRE violated the NEPA by a failure to reinitiate consultation by relevant government agencies in assessing the impact on endangered species because BOEMRE produced evidence that it had done just that.

Last January, the National Commission on the BP Deepwater Horizon Oil Spill [official website] released its full final report [text], tracing the deeper root causes of the spill and recommending steps to avoid future incidents. The report highlights mistakes made by BP, as well as its partners Haliburton and Transocean [corporate websites], as the starting point that allowed the spill to take place, and finishes with recommendations based on those oversights. The report comes as another count against BP's practices leading up to the spill. In December, the US Department of Justice (DOJ) [official website] filed suit [JURIST report] against units of BP and several other companies over the April 2010 disaster. The government's lawsuit is one of hundreds filed against BP and other companies in connection with the oil spill. In August, the US Judicial Panel on Multidistrict Litigation [official website] selected Judge Carl Barbier [FJC profile] to hear [JURIST report] more than 300 such lawsuits.

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Supreme Court rules witness tampering law requires likelihood of communication
Zach Zagger on May 26, 2011 12:41 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] Thursday ruled [opinion, PDF] in Fowler v. United States [Cornell LII backgrounder] that under a federal witness tampering statute [18 USC § 1512(a)(1)(C) text] the government must show there was a reasonable likelihood the witness would communicate relevant information to federal officers. Charles Fowler was convicted of killing a local police officer who had caught him and a group of accomplices preparing to rob a bank. The 7-2 opinion by Justice Stephen Breyer rejected the government's proposed rule that it only must establish the murder was committed to prevent a possible or potential communication to federal officers. The court found this standard to weigh too heavily in favor of the government. Still, the court said it is not necessary to show that a relevant communication to federal officers was actually or intended to be made. The court said the intent requirement was whether the murder was made "to prevent" relevant communications:
That is to say, where the defendant kills a person with an intent to prevent communication with law enforcement officers generally, that intent includes an intent to prevent communications with federal law enforcement officers only if it is reasonably likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer.
The court remanded the case for application of its ruling. Justice Antonin Scalia concurred but filed a separate opinion arguing that the standard should be whether "the defendant intended to prevent a communication which, had it been made, would beyond a reasonable doubt have been made to a federal law enforcement officer." He agreed that the case should be remanded but said he would hold that the evidence was insufficient to support the conviction since there was little evidence that the local police officer would have reported it to federal officers. Justices Samuel Alito and Ruth Bader Ginsburg dissented arguing that the evidence was sufficient to support the conviction because a rational jury could infer that Fowler had intent to prevent the local officer from communicating evidence to a spectrum of law enforcement officers including federal officers.

At oral arguments [transcript, PDF; JURIST report] Fowler's counsel argued that the court should apply a narrower, "realistic likelihood" standard when determining if the victim would have provided information to federal authorities, rather than the government's vague, "reasonably possible" standard. The government responded that the reasonableness standard gives the jury discretion to determine whether a victim could have provided evidence to a federal agent, since it is not possible to know the "specific intent" of the deceased victim. The US Court of Appeals for the Eleventh Circuit ruled [decision, PDF] that Fowler violated the statute by killing the police officer. Fowler protested that prosecutors failed to establish that it was likely the officer would transfer information to federal investigators or that it was likely that a federal investigation would be opened. The court held, however, that prosecutors need only establish that the defendant killed the victim to prevent the communication of a possible federal offense and that they had met that burden.

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Supreme Court upholds Arizona immigration employment law
Julia Zebley on May 26, 2011 11:57 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 5-3 in Chamber of Commerce v. Whiting [Cornell LII backgrounder; JURIST report] that a controversial Arizona employment law [materials] is not preempted by the Immigration Reform and Control Act (IRCA) [text]. The law imposes penalties on businesses that hire illegal immigrants. Chief Justice Roberts delivered the first part of the opinion, joined by Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito, upholding the law as not explicitly preempted:
Arizona's licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted. While IRCA prohibits States from imposing "civil or criminal sanctions" on those who employ unauthorized aliens, it preserves state authority to impose sanctions "through licensing and similar laws." That is what the Arizona law does—it instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens. The definition of "license" contained in the Arizona statute largely parrots the definition of "license" that Congress codified in the Administrative Procedure Act (APA).
The second part of the opinion, which Thomas did not join, declares the act not impliedly preempted. The third part, joined by the majority, declares that requiring the federally optional E-Verify program is not impliedly preempted. Justice Elena Kagan did not participate in the decision. Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, dissented, arguing that the licensing sanctions in the law are contrary to the intent of IRCA, and that the E-Verify program is not reliable enough to be mandatory. Justice Sonia Sotomayor also filed a dissent, focusing on Arizona creating separate mechanisms to determine whether a business has employed an unauthorized alien, and that the law forces a decision on the use of a federal resource, which she considers Congress' express power.

IRCA precludes states from making significant laws on immigration. However, the commonly referred to "savings clause" "preempt(s) any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." The Legal Arizona Workers Act "prohibits businesses from knowingly or intentionally hiring an 'unauthorized alien'" through requiring businesses to use several government programs, including E-Verify, to verify identities that are federally optional. If found employing unauthorized aliens, a business is subject to fines and a possible lose of license. E-Verify has been the subject of controversy due to inaccurate results showing legal immigrants as unauthorized aliens.

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Supreme Court dismisses Fourth Amendment child abuse case for mootness
Julia Zebley on May 26, 2011 11:18 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 7-2 to dismiss Camreta v. Greene [Cornell LII backgrounder; JURIST report] for mootness. The initial issue surrounded the circumstances for a warrant allowing officials to interview a minor, without parental notification, about abuse allegations. The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] that state child protective services workers Bob Camreta and James Alford were entitled to qualified immunity on Fourth Amendment [text] claims, relying on both a balancing test and the view that sexual abuse cases require "special needs," but ruled against the defendants on Fourteenth Amendment [text] claims. Camreta and Alford appealed the latter part of the decision. The Supreme Court first ruled that it may hear the appeals of prevailing parties in some circumstances. However, since the minor in the case moved out of her jurisdiction and will soon turn 18, the court found the case moot.
We conclude that this Court generally may review a lower court's constitutional ruling at the behest of a government official granted immunity. But we may not do so in this case for reasons peculiar to it. The case has become moot because the child has grown up and moved across the country, and so will never again be subject to the Oregon in-school interviewing practices whose constitutionality is at issue. We therefore do not reach the Fourth Amendment question in this case. In line with our normal practice when mootness frustrates a party's right to appeal, we vacate the part of the Ninth Circuit's opinion that decided the Fourth Amendment issue.
Justice Elena Kagan delivered the opinion. Justices Antonin Scalia and Sonia Sotomayor, joined by Justice Stephen Breyer, filed concurrences. Justice Anthony Kennedy, joined by Justice Clarence Thomas, in dissent, stated he would not have granted certiorari, due to mootness and not allowing prevailing parties to relitigate their claims.

Nearly 10 years ago in Oregon, child services was advised that Nimrod Greene was molesting his 9-year-old daughter, SG, the minor in this case. Camreta and Alford took SG out of class and interrogated her for two hours to determine if she was being sexually abused at home. Due to her answers and the previous allegations, Camreta believed she was being abused and obtained a protective order, removing SG and her sister from the home. SG and her sister were physically examined after this, but their mother was denied from being present at the examination. She eventually filed suit on behalf of her children against Camreta and Alford for Fourth and Fourteenth Amendment violations. SG has since moved to California.

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Supreme Court rules in Speedy Trial Act case
Zach Zagger on May 26, 2011 11:10 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] Thursday ruled [opinion, PDF] in United States v. Tinklenberg [Cornell LII backgrounder] that time for pretrial motions, regardless of whether they actually delay or are expected to delay the beginning of a trial, is excluded from the time in which the accused must be brought to trial. Jason Louis Tinklenberg was convicted of making methamphetamine. His trial began 287 days after his arraignment. The Speedy Trial Act of 1974 (STA) [18 USC § 3161(h)(1)(D) text] requires that accused be brought to trial within 70 days of the arraignment, but time can be excluded for things like pretrial motions. The opinion of the court, written by Justice Stephen Breyer, affirmed the decision [opinion, PDF] of the US Court of Appeals for the Sixth Circuit [official website] to dismiss the charges but disagreed with its reasoning. The Sixth Circuit reasoned that the STA's exemption for "delay resulting from" pretrial motions most reasonably means that the motions actually cause delay or have an expectation to cause delay in the trial. The Supreme Court disagreed with this interpretation as not supported by the context of the phrase and that the courts of appeals have consistently rejected that reasoning in the 37-year history of the STA. Further, the court argued that its interpretation is supported by legislative history and that the Sixth Circuit's standard would make it more difficult to administer, thus hindering the STA's intention to secure fair and efficient trials. However, the court agreed that the indictment should be dismissed because the Sixth Circuit had improperly excluded transportation time in excess of 10 days for weekends and holiday. When the weekends and holidays were added it pushed the time period to trial over the STA's limit. Justice Antonin Scalia, with two others, concurred in the judgment but disagreed with the court's reliance on outside considerations. Scalia argued that the clear meaning of the text itself was that time for pretrial motions should be automatically excluded, regardless of the actual or expected delay. Justice Elena Kagan did not take part in the decision.

The court heard oral arguments [transcript, PDF; JURIST report] in this case in February. Counsel for the government argued that the court should uphold precedent, saying that "[f]or more than 30 years, the courts of appeals had uniformly held that the exclusion applies automatically upon the filing of any motion, regardless of its effect on the trial schedule." Counsel for Tinklenberg argued that the court should use the "ordinary meaning" of the language in the statute, finding that the trial was delayed unlawfully.

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Federal judge rules accused Arizona shooter not competent to stand trial
Zach Zagger on May 26, 2011 10:14 AM ET

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[JURIST] A federal judge ruled Wednesday that accused Arizona shooter, Jared Lee Loughner, is not competent to stand trial due to mental illness. Judge Larry Burns for the US District Court for the District of Arizona [official website] made the ruling based on separate reports [Arizona Daily Star report] by psychologist Dr. Christina Pietz and psychiatrist Dr. Matthew Carroll who both evaluated Loughner and agreed that he is schizophrenic. Both the defense and the prosecution [motions text] stipulated to the accuracy of the information contained in the reports. The judge agreed that Loughner is unable to understand the proceedings against him and is unable to help in his defense. He was ordered to a federal psychiatric facility where he may remain until being determined fit to stand trial. During the hearing, Loughner apparently made nonsensical outbursts interrupting the proceedings.

Loughner was indicted on 49-counts [JURIST report] in connection with the Arizona shooting earlier this year at a "Congress on your Corner" event hosted by Congresswoman Gabrielle Giffords (D-AR) [official website], who is believed by authorities to be the target of the shootings. The indictment carries more severe charges than the original indictment [JURIST report] filed in January, accounting for all victims of the attack and carrying more serious penalties. The previous indictment received criticism because some people felt that it ignored many of the victims. Six people were killed in the shooting [USA Today report], including a Giffords staffer, a 9-year-old girl and federal judge John Roll. Giffords was critically injured when she was shot in the head from point blank range.

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Zimbabwe high court releases alleged coup plotters
Dan Taglioli on May 26, 2011 10:06 AM ET

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[JURIST] Zimbabwe's High Court in Harare on Tuesday ordered the release of six prisoners accused of plotting to overthrow Zimbabwe's president. The former army officers have been in prison since 2007 after being accused of planning to violently topple President Robert Mugabe [BBC profile; JURIST news archive] and replace him with the country's defense minister, Emerson Mnangagwa. The court held it is apparent that the defendants should not have been detained [CNN report], and a declaratory order will be issued to that effect. The High Court had dismissed the case in July because the defendants were held in custody without being brought to trial for more than six months, the limit imposed by law. The dismissal resulted in a re-indictment by prosecutors, but the defendants appealed to have the re-indictment thrown out At this time the state has not announced whether it plans to pursue the matter further. In Zimbabwe treason is punishable by death.

In March a Zimbabwe magistrate court ordered six of 45 activists arrested in Harare detained on charges of treason [JURIST report], releasing the remaining 39. The six activists not released will stand for the treason charges against them. The charges and subsequent arrests stem from the activists' attendance at a lecture on February 19, where footage of the widespread protests in Egypt [JURIST report], which resulted in the ouster of Egyptian President Hosni Mubarak [Al Jazeera profile], was shown. Defense lawyers maintain they were participating in an academic debate on African politics while prosecutors contend they were engaged in a discussion regarding the possibility of an ouster of Mugabe. In making its decision, the court considered the activities each engaged in and held that the majority of them could be released as they had merely listened to allegedly treasonous utterances, in contrast with the other six who had organized and spoken at the meeting.

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Serbia arrests elusive war criminal Ratko Mladic
Julia Zebley on May 26, 2011 9:05 AM ET

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[JURIST] Serbian authorities have captured [ICTY press release] Ratko Mladic [JURIST news archive], it was announced Thursday, ending a 16-year manhunt for the former general colonel and commander of the army of the Serbian Republic of Bosnia and Herzegovina. Mladic was one of the two remaining at-large war criminals sought by the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website], along with Goran Hadzic. Mladic faces charges [amended indictment, PDF] of genocide and crimes against humanity, including murder, political persecution, forcible transfer and deportations, cruel treatment and the taking of peacekeepers as hostages. He is most infamous for ordering the slaughter of 8,000 Muslim men and boys in the massacre of Srebrenica during the Bosnian civil war [JURIST news archives]. Serbian president Boris Tadic announced the news today [B92 report] in a press conference [in Bosnian]:

Extradition proceedings for trial in The Hague, Netherlands could take a week [BBC Report]. Despite overwhelming international approval of the arrest, including statements [Telegraph report] from European Commission president Jose Manuel Barroso, British Prime Minister David Cameron and NATO Secretary-General Anders Fogh-Rasmussen [press release], a poll earlier this year [B92 report] showed 52 percent of Serbians against Mladic's extradition. Although the capture of outstanding war criminals was one of the final bars to Serbia joining the EU, Dutch Prime Minister Mark Rutte stated that the arrest will not automatically result in accession [Reuters].

In December, the First Municipal Court in Belgrade acquitted 10 men [JURIST report] suspected of helping Mladic evade arrest. In September, ICTY prosecutor Serge Brammertz [official profile] called on Serbia and other governments [JURIST report] to increase efforts to find and arrest Mladic. Brammertz said failure to arrest Mladic would send war criminals the message that if they avoid capture long enough, the world will cease to care about bringing them to justice. Brammertz also emphasized the importance of seeking justice for Mladic's victims. Authorities must work quickly to arrest Mladic, Brammertz noted, since the ICTY is scheduled to be shut down in three years. Last May, Mladic's family filed a claim in the Belgrade District Court seeking to have him declared officially dead [JURIST report] in order to collect his state pension and sell his property. Earlier that month, the ICTY announced that the Office of the Prosecutor filed a motion to amend the indictment against Mladic [JURIST report] to include 11 counts of genocide, crimes against humanity and violations of the laws and customs of war in order to help speed up court proceedings once Mladic is captured.

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UN rights chief urges peaceful resolution of Sudan conflict
Dan Taglioli on May 26, 2011 9:00 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Tuesday called for a peaceful resolution [press release] to the escalating conflict in Abyei, the disputed oil-producing region between North and South Sudan. Last week a convoy of UN peacekeepers transporting troops of the northern Sudanese Armed Forces (SAF) was attacked just north of Abyei, which is claimed by both sides but has been held by the southern Sudan People's Liberation Army (SPLA) since the 2005 peace deal that stifled the country's bloody civil war. Over the weekend the SAF responded to the assault on its troops by attacking and taking control of Abyei itself. The situation has raised fears of reigniting the north-south conflict that left 1.5 million dead. Pillay urged that civilians be afforded safe passage and protected pursuant to international human rights and humanitarian law. Stated Pillay:
I condemn the recent attacks and counter-attacks in the Abyei region by both sides—this is certainly no way to advance the peaceful coexistence of North and South Sudan. I am particularly alarmed by the shelling of civilian areas in Abyei by the SAF, as well as reports of aerial bombardment in other locations. ... I urge all parties to explore a negotiated solution to the Abyei crisis and to avoid a descent into further conflict and chaos.
Since the northern forces took over, the UN has confirmed reports of bombing and shelling in and around Abyei by the SAF, as well as widespread looting and burning of houses. Aid workers estimate 40,000 people have fled the area [BBC report]. While the UN has said that attacks on its peacekeepers amount to war crimes under international law, both the UN and the US have called on the northern troops to withdraw from Abyei. From the northern capital of Khartoum President Omar al-Bashir [BBC profile] has stated he will not withdraw troops from the region and insisted that the area belongs to the north.

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South Sudan is scheduled to become independent this summer. A total of 98.83 percent [SSRC materials] of nearly 3.8 million southern Sudanese voters voted for secession [JURIST report] in January's Southern Sudan's Independence Referendum, according to the final polling results released by the Southern Sudan Referendum Commission [official website]. After the official results were announced in Khartoum, al-Bashir, who campaigned against secession, issued a formal decree accepting the result [JURIST report] of the referendum. With the South's secession, the world's 193rd country will be announced on July 9 in the southern capital of Juba.

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Colombia senate passes victim compensation law
Erin Bock on May 26, 2011 8:55 AM ET

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[JURIST] The Colombian Senate [official website, in Spanish] passed a law on Wednesday to compensate citizens who have been victimized by ongoing civil turmoil. The Victims' Law and Land Restitution Law [backgrounder, in Spanish] will provide financial compensation and restitution of land to victims of internal armed conflicts involving paramilitaries and guerrillas during the past 30 years. Individuals who feel they have been victimized by the conflicts since January 1, 1985 are eligible for financial compensation, and those who have also had their land seized or abandoned their land in the wake of armed conflict are subject to restitution of their land. The government estimates that 4 million hectares of land were abandoned and 2 million were seized during conflicts. The government will utilize the current court system to hear litigation regarding compensation and restitution. Senator Juan Fernando Cristo [official website, in Spanish] stated [press release, in Spanish] that, while the law is not perfect, it is "a good law and part two of the history of this country." The entire process is expected to take 10 years to complete.

The US federal court system has heard several cases regarding corporate involvement in Colombian violence. In February, the US Court of Appeals for the Eleventh Circuit [official website] revived a wrongful death lawsuit [JURIST report] brought against Drummond Company [corporate website]. The plaintiffs alleged that, after Drummond employees in Colombia successfully unionized, the company hired the United Self-Defense Forces of Colombia (AUC) [CFR backgrounder], a group of paramilitaries, to break up the union and murder its leaders, plaintiff's fathers. In April 2010, victims of paramilitary violence in Colombia filed suit against Chiquita Brand International [JURIST report] in the US District Court for the Southern District of Florida. The plaintiffs were 242 Colombians who alleged that they had been seriously injured or had family members killed by the AUC, which received funding from Chiquita. In 2007, Chiquita was fined $25 million [JURIST report] after it admitted to making payments of around $1.7 million from 1997 to 2004 to the AUC.

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Indonesia cleric pleads not guilty to terror charges
Erin Bock on May 26, 2011 7:38 AM ET

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[JURIST] Indonesian cleric Abu Bakar Bashir [JURIST news archive] pleaded not guilty on Wednesday to terrorism charges for allegedly funding a terrorist training camp in the Indonesian province of Aceh to prepare Islamic radicals to carry out attacks in Jakarta. Prosecutors claim Bashir provided more than $62,000 to the group [AFP report], which was allegedly planning attacks modeled after the 2008 Mumbai terror attacks [JURIST news archive] and targeting high-profile members of the Indonesian government. Bashir stated in his formal response to the charges that the trial and allegations are part of a conspiracy [Reuters report] to further the interests of the US and those who do not follow Islam. Bashir also denied allegations by prosecutors that the money provided to the group was used to purchase weapons. A verdict is expected to be handed down in June.

Bashir's trial began in February [JURIST report] in the District Court of South Jakarta. He is suspected of links to al Qaeda [CFR backgrounder; JURIST news archive] and Jemaah Islamiyah (JI) [CFR backgrounder], a terrorist group with links to al Qaeda that has been implicated in a number of attacks in Indonesia, including the 2002 Bali nightclub bombing [JURIST news archive] that left more than 200 people dead. In 2006, the Indonesian Supreme Court overturned [JURIST report] Bashir's conviction on conspiracy charges connecting him with the bombings. He was released from prison [JURIST report] earlier in 2006 after spending 26 months in jail on different charges related to the bombings.

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

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