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Legal news from Tuesday, June 21, 2011

Syria president al-Assad grants amnesty for crimes committed during protests
Zach Zagger on June 21, 2011 3:46 PM ET

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[JURIST] Syrian President Bashar al-Assad [Al Jazeera profile] Tuesday granted amnesty for "crimes" committed before June 20 during the protests that began earlier this year, according to a decree [text] published in Syrian state media. Minister of Justice Judge Tayseer Qala Awwad said the decree pardons those serving sentences who are suffering with terminal illnesses except for serious crimes such as smuggling arms and narcotics. However, Awwad said that some of the most serious felonies against individuals and society were not covered in the pardon. Also, the amnesty does not apply to cases where there is a private prosecution or personal claim against individual. This is the second amnesty decree al-Assad has issued in the past three weeks in attempt to defuse the now 13-week uprising pushing for al-Assad to either institute reforms or step down. On Tuesday, tens of thousands took part in pro-government rallies [Daily Mail report] in Syrian cities, but critics claimed that the rallies were composed of government service workers forced to attend wearing civilian clothing.

On Monday, al-Assad made a much-hyped speech [JURIST report] at Damascus University where he announced that he would soon introduce reforms and present a new constitution, but he spent much of the speech claiming that the protests were part of a conspiracy against Syria. He contends that a group of terrorists is responsible for the vandalism, robberies and murders that have taken place since protests erupted in the country early this year, and said that he planned to prosecute and hold those individuals accountable. Earlier this month, al-Assad granted amnesty to political prisoners [JURIST report] including all members of the previously banned Muslim Brotherhood (MB) [party website; JURIST news archive]. But opposition leaders dismissed the move and met in Turkey to discuss Syria's future. Syria has come under international scrutiny for using force to suppress the protests across the country. Earlier this month, the UN expressed concern over violence in Syria and urged the Syrian government to stop using force against protesters. Also, Syrian and international human rights groups urged [JURIST report] the International Criminal Court (ICC) [official website] to investigate the hundreds of civilian deaths during protests against al-Assad.Nearly 1,200 people have been killed and 10,000 displaced since protests erupted in February.

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Chile court orders temporary suspension of hydroelectric dam project
Maureen Cosgrove on June 21, 2011 2:05 PM ET

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[JURIST] A Chilean appeals court on Monday ordered [judgment, DOC, in Spanish] the temporary suspension of a USD $10 billion hydroelectric dam project in Patagonia. HidroAysen [project website, in Spanish], a private Chilean venture, seeks to build five dams whose construction was approved [Santiago Times report] by the Chilean government in May. The Puerto Montt court approved three petitions challenging government authorization of the dam construction and granted the plaintiffs' petition for injunction. The plaintiffs allege that the project's approval process was rife with conflicts of interest and tainted by Interior Minister Rodrigo Hinzpete, who intervened in the approval deliberation process. Authorities also allegedly overlooked negative reports about the project by various government agencies. Senate President Guido Girardi, opponent of the dam project, said the approval process was arbitrary and guided by corporate entities [La Tercera report, in Spanish], and that the project was not in the country's interest.

In addition to the construction of five dams on two rivers, the project calls for the flooding [AFP report] of 15,000 acres of wilderness in order to generate energy for Chilean cities. Recent polls indicate that over 74 percent of the Chilean population are opposed to the dam project. Plebiscites, or citizen petition initiatives, are being conducted in several small towns to change local land-use ordinances in an effort combat further approval of the dam project. Chileans took to the streets and protested the project [BBC report] in May arguing that "the dams will have dramatically negative effects on an important wilderness."

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Obama administration lawyers divided over legality of US operations in Libya
Zach Zagger on June 21, 2011 1:38 PM ET

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[JURIST] US President Barack Obama overrode the legal interpretations of the Department of Defense (DOD) and the Department of Justice Office of Legal Counsel [official websites] in maintaining the administration's position that US forces operating in Libya did not violate the 1973 War Powers Resolution [50 USC § 1541 et seq.], the New York Times reported [NYT report] Monday. Pentagon general counsel Jeh Johnson and Caroline Krass [official profiles] acting head of the Office of Legal Counsel told the President that they believed that US activities in Libya constituted "hostilities" under the War Powers Resolution. Under such an interpretation, US forces would have to have been pulled out by May 20 without further authorization from Congress. The president however, relied on the interpretations of White House counsel Robert Bauer [professional profile] and State Department legal advisor Harold Koh [official profile] in determining that US activities did not amount to "hostilities" because they are only playing a supporting role in the NATO-led mission pursuant to and limited by the UN Security Council Resolution authorizing military action in Libya to protect civilians. Usually, interpretations of the Office of Legal Counsel are the last word, but the president does have the authority to override them. After threats to defund the operations from Congress, a group of 37 conservative leaders, including former deputy assistant secretary of state Liz Cheney, former deputy secretary of defense Paul Wolfowitz, and former Bush administration advisor Karl Rove, sent an open letter [WSJ report, letter text] to House Republicans Monday urging them not to cut funding:
Such a decision would be an abdication of our responsibilities as an ally and as the leader of the Western alliance. It would result in the perpetuation in power of a ruthless dictator who has ordered terrorist attacks on the United States in the past, has pursued nuclear weapons and other weapons of mass destruction, and who can be expected to return to these activities should he survive. To cut off funding for current efforts would, in short, be profoundly contrary to American interests. ... The United States should be leading in this effort, not trailing behind our allies. We should be doing more to help the Libyan opposition, which deserves our support. We should not be allowing ourselves to be held hostage to UN Security Council resolutions and irresolute allies.
Last week, Speaker of the House John Boehner (R-OH) [official website] threatened [WSJ report] that the House would defund operations in Libya arguing that it is outside the president's authority. Still, Obama's action found support [AP report] from outgoing Defense Secretary Robert Gates [official profile] who called US activities "a limited kinetic operation."

Last week, President Obama released a report defending the legality of US operations [JURIST report] in Libya in a report released in response to recent criticisms of American intervention in Libya, including: a resolution [bill materials] passed in the US House of Representatives [official website] calling for withdrawal without congressional approval; a letter [text] to Obama from Boehner warning that he was within five days of violating the War Powers Resolution; and Representatives Dennis Kucinich (D-OH) and Walter Jones (R-NC) [official websites] filing a lawsuit [JURIST report] seeking an injunction on the Libya action. Obama's report endorsed a pending resolution [bill materials] that would provide some congressional support for continued efforts in Libya, though not approval of declaring war. The report also detailed that the US has spent USD $716 million and will spend $1.1 billion by the end of September.

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Croatia ex-PM drops extradition appeal, faces corruption charges
Maureen Cosgrove on June 21, 2011 1:29 PM ET

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[JURIST] Former Croatian prime minister Ivo Sanader on Monday dropped his appeal of a Zagreb extradition request, thereby compelling him to face corruption charges in Croatia. Sanader's lawyers said that the former prime minister dropped the appeal after media speculation suggesting the appeal process could tarnish Croatian accession [DW report] to the European Union (EU) [official website]. Sanader is currently being held in Austria. The Salzburg Provincial Court ruled [JURIST report] in May that Sanader's extradition of could proceed. Sanader was arrested by Austrian officials [JURIST report] in December on charges of abuse of power, corruption and fraud for taking nearly €4 million from public firms and state institutions [Croatian Times report]. Counsel for Sanader announced that they would immediately appeal [DW report] the ruling to the High Provincial Court in Linz and argued that it would be impossible for Sanader to receive a fair trial in Croatia. Croatian President Ivo Josipovic [official website] said that Sanader would be entitled to a fair trial.

Croatian officials have been under serious pressure to the tackle the issue of corruption in order to gain accession [EU materials] to the EU by 2012. On the same day Sanader was arrested, former interior ministry official Tomislav Mercep was arrested [JURIST report] on charges of committing war crimes. Amnesty International (AI) [advocacy website] released a report [text, PDF; press release] calling for the prosecution of individuals responsible for war crimes the day before Mercep's arrest. In November, a Croatian court sentenced [JURIST report] six men to 15 to 40 years in prison for their roles in the killing of a Croatian journalist in 2008. In 2008, AI called on the EU to use Croatia's status as a candidate country to ensure that the Croatian government actively investigates and prosecutes [JURIST report] suspected war criminals. AI criticized the slow pace of war crimes investigations, and noted that Croatian courts have mostly focused on crimes allegedly committed by ethnic Serbs even though Croats have also been accused of ethnic-based war crimes. In March 2005, the EU suspended entry talks [JURIST report] on the grounds that Croatia was failing to fully cooperate with the International Criminal Tribunal for the former Yugoslavia [official website; JURIST news archive] investigating war crimes in the area. The entry talks were resumed in October of that year after the ICTY declared that Croatia was fully cooperating [JURIST report].

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Wisconsin judge upholds domestic partnership registry
Maureen Cosgrove on June 21, 2011 9:20 AM ET

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[JURIST] A Wisconsin judge ruled [opinion, PDF] on Monday that the state's domestic partnership registry does not infringe on the constitutional ban on gay marriage. Plaintiff Wisconsin Family Action [advocacy website] challenged the Domestic Partnership Registry [Wisc. Stats. 770 text, PDF] as unconstitutional pursuant to the Marriage Amendment of Wisconsin's Constitution [text, PDF]. Dane County Circuit Judge Daniel Moeser granted summary judgment to defendant Fair Wisconsin [advocacy website], finding that the defendant had made a prima facie case. Moeser indicated that, based on plain language, constitutional debates, and earliest interpretations by the legislature, the domestic partnership [JURIST news archive] legal status is not "substantially similar" to marriage such that the Marriage Amendment preempts the same-sex domestic partnership designation:
[T]he sum total of domestic partners' legal rights, duties, and liabilities is not identical or so essentially alike that it is virtually identical to the sum total of spouses' legal rights, duties, and liabilities. The state does not recognize domestic partnership in a way that mirrors how the state recognizes marriage. Moreover, the state confers drastically different benefits, rights, and responsibilities to domestic partners solely by virtue of their domestic partnership status in comparison to the benefits, rights, and responsibilities given to spouses because of their marriage status.
Though the registry does not bestow equal rights to individuals in civil partnerships and marriages, it grants same-sex couples legal rights including hospital visitation, end of life decision, and property inheritance rights. Republican Governor Scott Walker and Attorney General JB Van Hollen (R) [official websites] have refused to defend the registry.

Several states have addressed same-sex domestic partnership and civil union laws in recent years. Hawaii Governor Neil Abercrombie (D) [official profile] signed [JURIST report] a same-sex civil unions bill [SB 232 text, PDF] into law in February, legalizing same-sex civil unions in the state. That same month, Illinois Governor Pat Quinn (D) [official website] signed a bill [JURIST report] legalizing same-sex civil unions. Washington voters narrowly approved [JURIST report] Referendum 71 (R-71) [text], expanding the state's domestic partnership law in November 2009. In December 2007, a federal judge blocked [JURIST report] an Oregon law [HB 2007 text] that would allow same-sex couples to enter into contractual domestic partnerships. In April 2007, the Washington State House of Representatives [official website] approved [JURIST report] a domestic partnership bill (SB 5336) [PDF text; bill summary] that grants same-sex couples hospital visitation rights, inheritance rights when there is no will, and the power to authorize medical procedures, such as organ donation and autopsies. Washington Gov. Chris Gregoire [official website] signed the legislation [press release; JURIST report] into law the following week. While several states now allow same-sex civil unions, only six US jurisdictions allow same-sex marriage [JURIST news archive], including Washington, DC, Vermont, New Hampshire, Iowa, Connecticut and Massachusetts [JURIST reports].

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Croatia arrests 3 war crimes suspects from Serbo-Croatian War
Zach Zagger on June 21, 2011 9:12 AM ET

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[JURIST] Three former Croatian police officers were arrested Monday in connection to alleged war crimes committed against ethnic Serb civilians during the Serbo-Croatian War [GlobalSecurity backgrounder] in 1991 and 1992. Most notable among the three is Djuro Brodarac, a former police chief in the town of Sisak southeast of the capital Zagreb, who was arrested [Adnkronos International report] along with two other police officials, Vladimir Milankovic and Drago Bosnjak. The Youth Initiative for Human Rights (YIHR) [advocacy website], a rights organization in the former Yugoslav states, said that as many as 600 Serb civilians in Sisak were killed [press release, in Croatian] during the war. YIHR urged the Croatia to further investigate possible war crimes and prosecute all those responsible.

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Croatia has been cracking down on suspected war criminals from the Serbo-Croation war. These latest arrests come less than a month after the European Commission (EC) [official website] officially recommended [JURIST report] Croatia [EC materials] for accession to the European Union (EU) [official website], announcing that Croatia will become the 28th member of the EU on July 1, 2013. The day before the announcement, Croatian authorities charged former military commander and senior interior minister Tomislav Mercep [official profile, in Croatian] for war crimes committed against Serbians during the 1990s conflict in the Balkans. The indictment goes on to charge that he ordered detentions, torture and executions of Serbian civilians. Mercep was arrested [JURIST report] in December, and Croatian officials were nearing a deadline to release him without a formal indictment.

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Tunisia ex-president Ben Ali sentenced in absentia to 35 years
Maureen Cosgrove on June 21, 2011 9:02 AM ET

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[JURIST] Former Tunisian president Zine Al Abidine Ben Ali [BBC profile; JURIST news archive] and his wife were sentenced Monday by a Tunisian court after being found guilty in absentia on charges of theft and unlawful possession of money and jewelry. The two were sentenced to 35 years in prison [Reuters report] and fined USD $65.6 million. The sentencing came just hours after the trial began [JURIST report]. The two were also charged with illegal possession of drugs and weapons, but the verdict for those charges would not be announced until June 30. Ben Ali fled Tunisia to Saudi Arabia in January during protests against his 23-year autocratic rule in which his family amassed substantial wealth [Reuters report] that many Tunisians say was at their expense. But Ben Ali said Monday that he was "duped" into leaving [AFP report] the capital Tunis, according to a statement released through his lawyer. He said that he was trying to get his family out of the country after assassination threats and that the plane left him in Saudi Arabia despite orders to wait for him. Ben Ali has denied the charges against him [JURIST report] which stem mostly from allegations that he authorized the use of force against protesters during the Tunisian revolution, resulting in more than 200 deaths. Justice Minister Lazhar Karoui Chebbi [profile, in French] announced the issuance of an arrest warrant for Ben Ali in January, though the country has not received a response to its request to extradite [JURIST reports] the former leader from Saudi Arabia, where he remains in exile. The uprisings in Tunisia and ousting of Ben Ali were the beginning of similar uprisings across the Middle East also resulting in the ousting of former Egypt president Hosni Mubarak [Al Jazeera profile; JURIST news archive].

Chebbi announced that Ben Ali had been charged with 18 offenses in April. The announcement came a little over a month after Amnesty International (AI) and Human Rights Watch (HRW) [advocacy websites] called for the Tunisian transitional government to investigate incidents of police violence against protesters and end police brutality [JURIST reports]. In January, the Tunisian Constitutional Council officially announced that Ben Ali had permanently left the office of the presidency after he declared a state of emergency [JURIST report] amid nationwide protests, banning public gatherings and allowing police to fire on anyone refusing to obey orders, and fled the country. The leader of the lower house of parliament, Foued Mebezza, assumed power as interim president [JURIST report] and is expected to remain in power until elections are held, which Prime Minister Mohammed Ghannouchi [Reuters profile] has indicated will be within the next several months.

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

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