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Legal news from Friday, July 15, 2011




Federal appeals court rejects challenge to TSA body scans
Maureen Cosgrove on July 15, 2011 3:10 PM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Friday unanimously rejected [opinion, PDF] a constitutional challenge to the full-body scans conducted at airports by the Transportation Security Administration (TSA) [official website]. The appeals court held that the use of full body scanners [TSA backgrounder], also known as Advanced Imaging Technology (AIT), does not violate the Fourth Amendment [text] protection against unreasonable searches, nor does it violate any federal statutes. However, the court said that the TSA violated procedural requirements by failing to give notice to the public as well as provide an opportunity to file comments with the agency pursuant to the Administrative Procedure Act (APA) [materials]. Though the petitioners, Electronic Privacy Information Center (EPIC) [official website], were disappointed [WSJ report] that the court dismissed the constitutional challenge, President of EPIC Marc Rotenberg applauded the ruling [press release]:
We are pleased with the court's decision. The TSA is now subject to the same rules as other government agencies that help ensure transparency and accountability. Many Americans object to the airport body scanner program. Now they will have an opportunity to express their views to the TSA and the agency must take their views into account as a matter of law.
The court ultimately remanded the case to the agency for further proceedings to "cure the defect."

The TSA has come under fire recently for implementing invasive airport security measures. In June, the Texas legislature approved a pair of bills [JURIST report] that criminalize enhanced airport security pat-downs if they involve touching a passenger's "private" areas. The TSA, however, announced a policy change [USA Today report] earlier that month that seeks to reduce the number of invasive pat-downs of children under age 12. Texas Governor Rick Perry commended the TSA [press release] for making the change, indicating that "Texas will continue seeking more common-sense approaches to TSA security measures." In April 2010, a group of more than 30 privacy and civil liberty groups asked the Department of Homeland Security (DHS) [official website] to suspend the full body scanner program [JURIST report]. The body scanners were introduced in part as a response to the failed US bombing attempt by Umar Farouk Abdulmutallab [Telegraph profile; JURIST news archive] on Northwest Airlines Flight 253 from Amsterdam to Detroit on Christmas Day. The attempted attack prompted Obama to announce tighter security measures, which civil rights groups opposed [JURIST reports] as a pretext to racial profiling.




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FBI to probe News Corp in 9/11 phone hacking scandal
Maureen Cosgrove on July 15, 2011 2:03 PM ET

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[JURIST] US Attorney General Eric Holder [official website] on Friday announced that the Federal Bureau of Investigation (FBI) [official website] will open an inquiry into whether journalists working for the media company News Corporation (News Corp.) [media website] and its subsidiaries violated US laws by hacking into the mobile phones of 9/11 [JURIST backgrounder] victims. The FBI said that it had begun to examine the allegations [Al Jazeera report] against News Corp., an organization owned by media mogul Rupert Murdoch [Forbes profile]. British Prime Minister David Cameron [official website] announced earlier this week that the UK would also initiate an inquiry [Conservatives report] into the alleged wrongdoing of the press and police in connection with the 9/11 phone hacking scandal, as well as a full-scale review of press regulations.

Members of the US Senate and House of Representatives [official websites] called on US agencies Wednesday to open the News Corp. investigation [JURIST report]. The requests come in response to an article [text] published in the British tabloid, The Daily Mirror [official website], claiming that journalists working for the company offered to pay a New York City police officer in exchange for victims' phone information and call details. Recent reports allege that journalists for the now-defunct British tabloid, News of the World [media website], a News Corp. subsidiary, paid London police officers for private information, including telephone records, to use in various news stories. The company could face additional charges under the accounting provisions of the Foreign Corrupt Practices Act of 1977 (FCPA) [background materials, PDF] for not properly recording any illicit transactions in their books.




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Violent crime rate along US-Mexico border declining: USA Today
Maureen Cosgrove on July 15, 2011 11:56 AM ET

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[JURIST] Rates of violent crime along the US-Mexico border [GlobalSecurity backgrounder] have been declining for several years, according to a USA Today analysis [text; interactive materials] released Thursday. The study indicated that, on average, US border cities were safer than other cities in the same states, with border cities maintaining lower crimes rates than the national average. Federal crime statistics, interviews and crime data from over 1,600 local law enforcement agencies in four border states, as well as demographic figures from the US Census Bureau's American Community Survey [official website], form the basis of the study. The analysis suggests that the US-Mexico border may not be as dangerous as the general US population perceives. For example, according to the study, murder and robbery rates for cities within 50 miles of the border were lower than the respective state average in nearly every year from 1998 to 2009. Critics of the study are concerned that the analysis does not accurately reflect the true landscape of violent crime in border cities and fails to take into consideration those crimes that go unreported, particularly kidnapping and extortion. Several analysts quoted in the report, however, argue that the analysis confirms that politicians have exaggerated the extent to which violence occurs along the US-Mexico border and make unsubstantiated claims linking illegal immigration to crime rates.

The US has adopted numerous approaches to curb illegal immigration and crime along the US-Mexico border. US President Barack Obama signed legislation [JURIST report] designed to increase security along the US-Mexico border in August 2010 after announcing in May 2010 that he would send 1,200 National Guard [official website] troops to the US-Mexican border in an effort to deter drug smuggling and illegal immigration [JURIST report]. The US government abandoned a prototype "virtual fence" [JURIST report], part of the Secure Border Initiative [DHS fact sheet], along the US-Mexico border after the system, passed in September 2006 [JURIST report], failed to perform up to expectations. In 2006, former US president George W. Bush [official profile] announced [JURIST report] the deployment of up to 6,000 National Guard troops to the Mexican border as part of a wide-ranging plan to 'fix' problems created by illegal immigration. The US Border Patrol [official website] subsequently announced [JURIST report] that the number of illegal Mexican migrants attempting to cross the US-Mexico border in Arizona had dropped significantly due to deployment of those troops who worked to extend border fences and repair roads in the area.




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Switzerland high court upholds UBS disclosure of client information
Jaclyn Belczyk on July 15, 2011 11:46 AM ET

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[JURIST] The Federal Supreme Court of Switzerland [official website, in German] ruled [press release, PDF] Friday that the Swiss Financial Market Supervisory Authority (FINMA) [official website, in German] was right to order UBS [corporate website] to disclose information to the US on more than 250 of the bank's clients. FINMA issued the order in February 2009 after the US Department of Justice (DOJ) accused UBS of assisting Americans in hiding accounts from the Internal Revenue Service (IRS) [official websites]. The Supreme Court found that FINMA acted lawfully, overturning a January 2010 lower court ruling that had found FINMA in violation of the law [JURIST report]. FINMA welcomed Friday's ruling and said they would carefully review [press release, in German] the court's judgment. The judgment will be available on the court's website once it has been redacted.

The ruling comes as the US seeks to put an end to tax-evasion through the use of overseas accounts. Last July, the Swiss Federal Administrative Court [official website, in German] ruled that an agreement [text, PDF] with the US, allowing UBS to disclose client account information, is binding [JURIST report]. In November 2009, the DOJ and IRS announced that more than 14,700 Americans had reported to the IRS [JURIST report] previously hidden overseas bank accounts in response to a temporary forgiveness program [official website] allowing delinquent taxpayers to avoid criminal prosecution for tax evasion by paying all overdue taxes and penalties. In September of that year, the US and Switzerland signed a treaty [JURIST report] that would increase the amount of information shared between the two nations on would-be tax evaders. The agreement, constructed in accordance with Article 26 of the Model Tax Convention [text, PDF], came one month after a Swiss banker and lawyer were indicted in US federal court [JURIST report] for helping clients hide assets. Earlier in 2009, the US reached a preliminary agreement with Switzerland over the identification of anonymous accounts [JURIST report] in Swiss banks, which would aid US officials in identifying those who seek to evade taxes.




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Missouri governor will not sign legislation banning abortions after 20 weeks
Maureen Cosgrove on July 15, 2011 11:01 AM ET

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[JURIST] Missouri Governor Jay Nixon [official website] on Thursday said he will not sign legislation [press release] that would ban abortions [JURIST news archive] after 20 weeks of pregnancy. The measure [HB 213 materials] imposes penalties on doctors who fail to comply with the new restrictions. It would provide some exceptions, permitting abortions of viable fetuses only when the woman's life is endangered by a physical illness or disability, or when continued pregnancy poses the risk of substantial physical impairment to the pregnant woman. The legislation further requires a concurring opinion from a second physician before the abortion of a viable fetus can be performed. Doctors who abort viable fetuses in violation of the late-term abortion law could face up to seven years in prison and fines between $10,000 and $50,000. Nixon acknowledged the lawmakers' decision while pointing out alternatives to abortion legislation:
This legislation was approved by an overwhelming, bi-partisan majority in both houses. Although people have differing views on this issue, it's important that we work together to provide accurate health information, promote personal responsibility, protect women's health, and improve foster care, adoption and child protection services.
Despite the governor's not signing the bill, the law will take effect pursuant to Article III, § 31 of the Missouri Constitution [text].

The Missouri House of Representatives [official website] gave final approval to the legislation in May, and the Senate approved the measure in April after receiving preliminary approval [JURIST reports] from the House in March. Missouri is just the latest of several states to impose restrictions abortions after the 20-week mark, when some studies suggest a fetus can begin feeling pain. Indiana, Alabama, Ohio and Oklahoma [JURIST reports] have each passed legislation this year which restricts the abortion procedure after 20 weeks of pregnancy. Iowa, Kansas and Idaho [JURIST reports] have also recently passed legislation restricting late-term abortions.




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Obama administration asks appeals court to reinstate 'Don't Ask Don't Tell'
Maureen Cosgrove on July 15, 2011 9:51 AM ET

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[JURIST] The Obama administration on Thursday asked [plea text, PDF] the US Court of Appeals for the Ninth Circuit [official website] to reinstate the "Don't Ask Don't Tell" (DADT) [10 USC § 654 text; JURIST news archive] policy that bars gays and lesbians from serving openly in the military. The government filed the "emergency motion," arguing that a Ninth Circuit panel's decision to lift a stay [JURIST report] blocking a lower court injunction against DADT and allowing for an immediate end to enforcement of the controversial policy was misguided. The motion asserts that Congress has already established a plan to repeal DADT, though it currently remains in effect. The appeals court on Monday ordered [JURIST report] the Obama administration to say whether it plans to defend DADT, suggesting that it appeared from the merit briefs in Log Cabin Republicans v. USA [case materials] that the government was not prepared to defend the law's constitutionality because it has asserted only that the Don't Ask, Don't Tell Repeal Act of 2010 [text and materials] is constitutional. Included in the government's filings was a letter [text, PDF] from US attorney Henry Whitaker responding to questions presented in the appeal court's July 11 order, namely, whether the Obama administration intended to defend DADT's constitutionality. Whitaker explained that the administration "has fully defended, and continues to defend, the constitutionality" of DADT "as it exists following the enactment of" the Repeal Act:
[B]efore enactment of the Repeal Act, the question this case presented ... was whether 10 U.S.C. § 654 was constitutional as originally enacted. But that is no longer the question in this case, in which the plaintiff seeks only prospective relief. The government has not addressed the question the district court decided because the statute the district court considered has been changed, fundamentally altering the legal lens through which a Court must evaluate the constitutionality of the statute. Rather, the government has addressed the only question as to which there is any live controversy remaining: whether the statute as it presently exists is constitutional.
The government also filed a declaration [text, PDF] from top Pentagon official Major General Steven Hummer, arguing that the military, not the courts, should carry out the law's repeal pursuant to the DADT Repeal Act.

In November, the government requested and received the stay [JURIST report] that suspended enforcement of the injunction. The government had requested that the appeal be placed on hold in light of the Don't Ask, Don't Tell Repeal Act, arguing that moving forward with the appeal would interfere with the repeal schedule that the Act sets in place. After hearing seven months of arguments and briefs, the Ninth Circuit rejected that appeal and lifted the stay. That decision came after the Ninth Circuit's denial [JURIST report] of a motion [text, PDF] by the US government that the court suspend the government's appeal of an injunction [JURIST report] issued by the US District Court of the Central District of California [official website] requiring the US military to end enforcement of DADT. Congress recently tried to delay the repeal of DADT when it passed the $690 billion National Defense Authorization Act for Fiscal Year 2012 [HR 1540 materials], which contains a provision [§ 533] requiring the chiefs of the branches of the military to submit written certification that DADT's repeal will not be harmful. The Don't Ask, Don't Tell Repeal Act was approved in the Senate in December after being passed [JURIST reports] by the House of Representatives the week before. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.




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Former Argentina military officers sentenced to life for crimes against humanity
Maureen Cosgrove on July 15, 2011 8:54 AM ET

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[JURIST] Two former military officers were convicted and sentenced to life in prison on Thursday for committing crimes against humanity at an Argentine prison. The officers, along with five others, were charged and convicted of various crimes [La Nacion report, in Spanish] including murder, kidnapping and torture that took place at El Vesubio [Nunca Mas backgrounder, in Spanish], a notorious prison operated by the country's former dictatorship. Argentina's military junta controlled the prison from 1976-83 throughout the dictatorship's "Dirty War" [GlobalSecurity backgrounder; JURIST news archive], during which over 13,000 people were killed. The seven men were charged in February with a total of 156 crimes against humanity. Col. Pedro Alberto Duran, the prison's supervisor who died during the trial, also allegedly raped female prisoners regularly and was charged with 14 counts of homicide, among other accusations. Gen. Hector Gamen and Col. Hugo Pascarelli were given life sentences, while the others were sentenced to 18-22 years in prison.

A number of investigations have been initiated and cases brought to trial as a result of a 2005 Argentina Supreme Court [official website, in Spanish] ruling that denied amnesty to military figures [HRW report] who committed crimes during the military dictatorship. An Argentine federal court in April sentenced [JURIST report] former general Eduardo Cabanillas to life in prison for his involvement in the Dirty War. Former general Luciano Benjamin Menendez, already serving a life sentence, was sentenced to an additional life sentence [JURIST report] in March for the attack and murder of five urban guerrilla group members. Also in March, an Argentine court commenced the trial of former dictators Jorge Videla [Trial Watch profile; JURIST news archive] and Reynaldo Bignone [JURIST news archive] for allegedly overseeing a systematic plan to steal babies [JURIST report] born to political prisoners. In December, Videla was sentenced to life in prison [JURIST report] for crimes against humanity. Videla's trial commenced in July after he was charged with an additional 49 counts [JURIST reports] of murder, kidnapping and torture last May following the identification of 40 bodies in Buenos Aires in 2009. Also last May, Argentine authorities arrested [JURIST report] former secret service agent Miguel Angel Furci on charges of human rights abuses. Furci, a former agent of the Secretariat of State Intelligence (SIDE), was charged with 70 kidnappings and the torture of detainees at Orletti.




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