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Legal news from Tuesday, July 19, 2011

Federal judge rules Florida courthouse must remove Ten Commandments monument
Maureen Cosgrove on July 19, 2011 2:06 PM ET

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[JURIST] A federal judge on Friday ordered [text, PDF] Florida's Dixie County Courthouse to remove the Ten Commandments monument [JPG] displayed on the front steps of the courthouse. The American Civil Liberties Union of Florida (ACLUFL) [advocacy website] filed the lawsuit in early 2007, arguing that the monument violated the Establishment Clause [Cornell LII backgrounder] of the First Amendment to the US Constitution. Dixie County maintained that the display was protected as private speech under the Free Speech Clause of the First Amendment [text] because the monument, which cost over USD $20,000 to construct, weighs six tons and includes a banner proclaiming "Love God and Keep His Commandments," was purchased and installed by a private community member. The court, however, ruled that because of the location, "permanent" nature and religious message of the structure, it must be removed. Judge Maurice Paul agreed with the ACLUFL, concluding that the monument's religious message would be interpreted to be espoused by the government:
As noted previously, permanent displays carry the indicia of government speech. This strongly implies endorsement of the message being conveyed. However, beyond the mere permanence of the monument, the context of the display establishes Dixie County's endorsement of its religious message. The monument is five-feet tall, made of six tons of granite, and sits alone at the center of the top of the steps in front of the county courthouse that houses every significant local government office. "No viewer could reasonably think that it occupies this location without the support and approval of the government."
Furthermore, the court held that the monument violates the Lemon test, which states that, "a governmental practice violates the Establishment Clause if it does not have a secular purpose, if its primary effect is to advance or inhibit religion, or if it fosters excessive government entanglement with religion." The monument must be removed from the courthouse steps within 30 days.

The US Court of Appeals for the Sixth Circuit [official website] in February upheld [opinion, PDF] a lower court ruling barring the Ten Commandments [JURIST report] from being displayed in an Ohio courthouse. The Sixth Circuit in June 2010 upheld an injunction against similar displays [JURIST report] in two Kentucky courthouses, finding that the displays represented simply another strategy "in a long line of attempts" to comply with the Constitution for litigation purposes and did not "minimize the residue of religious purpose." A month earlier, the same court denied an en banc rehearing in another case [opinion, PDF] involving the display of the Ten Commandments in a Grayson County, Kentucky, courthouse. The court found the display to be constitutional because it presented a valid secular purpose from the outset. In a 2005 decision, the Sixth Circuit ruled in favor of a Ten Commandments display [JURIST report] in a Mercer County, Kentucky, courthouse. A 2005 Supreme Court decision [JURIST report] prohibiting an earlier attempt at a similar display in Kentucky prompted lawmakers to propose a constitutional amendment [JURIST report] to overturn it. On the same day, the Supreme Court ruled that a six-foot-tall display of the Ten Commandments [JURIST report] on the grounds of the Texas state capitol was constitutionally acceptable because it had a secular purpose.

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Philippines military committing human rights abuses: HRW
Maureen Cosgrove on July 19, 2011 12:20 PM ET

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[JURIST] The Philippine government has failed to investigate and prosecute extrajudicial killings tied to the country's military, Human Rights Watch (HRW) [advocacy website] announced [press release] Tuesday. In a report [text, PDF] entitled "No Justice Just Adds to the Pain: Killings, Disappearances, and Impunity in the Philippines," HRW presents evidence indicating that the Philippine military was involved in seven murders and three disappearances of leftist activists since President Benigno Aquino III [official website] took office in June 2010. Many of the victims were members of the Communist Party of the Philippines New People's Army (CPP-NPA), a group whose members are typically involved in leftist organizations and oppose military presence in local communities. The killings and abductions allegedly carried out by the Citizen Armed Force Geographical Unit (CAFGU) paramilitary forces often take place with witnesses standing by, the report said. Elaine Pearson, Deputy Asia Director at HRW, condemned the military's behavior and called on the government to hold soldiers accountable:
Activists are being gunned down in the street, while implicated soldiers walk free. The Philippines can only bring an end to these horrific abuses if it is clear that anyone who orders or commits them will be jailed and their military careers will be over. The brazen nature of some of these abuses—in broad daylight and in front of witnesses—shows how members of the military can kill and 'disappear' people with little regard for the consequences. Tagging someone as a leftist activist is like sounding the alarm that they are on a military hit list.
HRW was unable to report on several other alleged military killings because of time constraints.

The Philippines has faced political turmoil in recent years. Aquino signed an executive order [text, PDF] in July 2010 to set up a "truth commission" [JURIST report] to investigate allegations that the outgoing administration of former president Gloria Macapagal Arroyo [BBC profile; JURIST news archive] engaged in corruption and rights violations. Arroyo was elected to the lower house of parliament in April 2010 after receiving permission to run for the seat [JURIST report] despite protests that her presidency gave her an unfair advantage. In March of that year, Aquino and other presidential candidates criticized as "unjust" a Supreme Court ruling that allowed Arroyo to appoint a replacement for the retiring chief justice [JURIST report], who planned to step down a week after the May presidential elections. Arroyo declared martial law [JURIST report] in December 2009 for the first time in 23 years in the wake of a massacre in the Maguindanao province that left 57 dead.

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Reproductive rights group challenges North Dakota abortion law
Maureen Cosgrove on July 19, 2011 11:14 AM ET

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[JURIST] The Center for Reproductive Rights (CRR) [advocacy website] on Monday filed a complaint [text] challenging a North Dakota law [HB 1297 text] that effectively bans non-surgical abortions [JURIST news archive] in the state. The law restricts the use of mifepristone, misoprostol [FDA backgrounders] and other drugs approved by the Food and Drug Administration (FDA) [official website] to induce first-trimester abortions. The complaint, filed on behalf of the sole abortion provider in the state, alleges that the law would altogether prohibit medication abortions, preventing women who prefer the non-surgical abortion procedure from obtaining treatment. Moreover, the complaint alleges, the law creates an undue, expensive and unconstitutional burden because women would have to travel long distances to obtain abortions. CRR President and CEO Nancy Northup denounced the law [press release], saying it infringes on women's reproductive rights:
North Dakota has enacted a law that defies reason, science, and the expertise of doctors worldwide in an underhanded effort to deny women their legal right to terminate a pregnancy safely, early, and in accordance with their doctors' advice and their own wishes. It is unimaginable that any other medical procedures would be targeted for restrictions aimed at reducing their effectiveness and increasing their expense and inconvenience. This is an assault on women's reproductive rights and health, pure and simple.
The plaintiffs also contend that the law is impermissibly vague, constitutes an improper delegation of legislative authority and violates the privileges and immunities and bodily integrity rights of women, among other challenges. CRR is seeking declaratory and injunctive relief against the legislation, which is scheduled to take effect on August 1.

North Dakota is one of many states to introduce more restrictive abortion regulations in recent months. In June, the Ohio House of Representatives [official website] voted 54-43 to approve legislation [HB 125] that would prohibit abortions after a fetal heartbeat is detectable [JURIST report], which could occur as early as six weeks into the pregnancy. The Iowa House of Representatives [official website] also voted in June in favor of a bill [HF-1736 text, PDF] that would effectively ban abortions after 18 weeks of pregnancy [JURIST report], making it the most restrictive abortion law in the country. In May, a judge for the US District Court for the Southern District of Ohio [official website] upheld an Ohio law [2919.123 text] that limits the use of the "abortion pill" [JURIST report], overturning a 2006 injunction [JURIST report]. Oklahoma has also prohibited the use of mifepristone [JURIST report]. Multiple states have acted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Alabama, Oklahoma, Kansas and Idaho [JURIST reports].

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Federal judge allows Google to appeal Street View ruling
Maureen Cosgrove on July 19, 2011 10:01 AM ET

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[JURIST] A judge for the US District Court for the Northern District of California [official website] on Monday ruled that Google [corporate website; Bloomberg backgrounder] could appeal a decision permitting a wiretapping lawsuit against the company to proceed. Judge James Ware granted [Bloomberg report] Google's request to delay the lawsuit pending an appeal of a ruling against Google. The lawsuit claims that Google is violating wiretapping laws by collecting data for its Street View [official website] program using WiFi networks. Ware rejected a motion to dismiss [JURIST report] the class-action lawsuit against Google in June, denying [WSJ report] Google's argument that when they collected information while creating their Street View feature, the information was freely and publicly available. Google collected private details transmitted on unencrypted wireless connections, but the company claims it was inadvertent.

Google has recently faced a number of allegations from the international community related to violating privacy laws by capturing personal data through Google Street View. In April, the Swiss Federal Administrative Court (FAC) [official website, in German] publicized its ruling that Google Street View constitutes a breach of privacy [JURIST report] for the country's citizens and ordered Google to take extra steps to ensure adequate protection. In March, a Berlin high court ruled [JURIST report] that Google's Street View mapping service is legal in Germany. The ruling, which cannot be appealed, was narrowly focused on property rights, ignoring larger data protection issues the company is currently confronting. Also in March, the French National Commission of Information Technology and Liberty (CNIL) [official website, in French] fined Google [JURIST report] 100,000 euros (USD $141,300) for violating French data privacy laws by capturing personal data through Google Street View cars, used for its Google Maps service. Google has admitted to the collection of e-mails, passwords and other data over unsecured WiFi networks, but maintained that it was a mistake and that it did not intend to include the code which captured payload data from unsecured WiFi networks. In response to the controversy, Google grounded its Street View cars.

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Pakistan civilians seek arrest of ex-CIA legal counsel for drone attacks
Maureen Cosgrove on July 19, 2011 9:20 AM ET

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[JURIST] Three Pakistani men filed a complaint on Monday seeking to arrest former Central Intelligence Agency (CIA) [official website] legal counsel for authorizing unmanned predator drone strikes [JURIST news archive]. The complaint alleges [Reuters report] that former General Counsel to the CIA John Rizzo approved the use of unmanned aerial vehicles to carry out drone strikes and admitted to doing so in a February Newsweek interview [text]. The aerial attacks target al Qaeda [GlobalSecurity backgrounder] and Taliban [CFR backgrounder] militants, but civilians are often killed or injured in the collateral damage. The complaint also seeks an international warrant for Rizzo's arrest.

The Obama administration has defended [JURIST report] its use of targeted killings, specifically those made by unmanned predator drone strikes. State Department Legal Adviser [official website] Harold Koh [academic profile] has said the drones "comply with all applicable law" because they target only military targets and enable minimal damage to civilians and civilian structures. UN Special Rapporteur on extrajudicial, summary or arbitrary executions Philip Alston [official website] noted in October 2009 that the use of unmanned drones by the US to carry out attacks in Pakistan and Afghanistan may be illegal [JURIST report]. In January 2006, then-Pakistani president Pervez Musharraf [BBC profile] contended that the US violated its sovereignty [JURIST report] in an air strike on a village near the Afghanistan border. The failed January 13 attack [Gulf Times report] by a CIA Predator drone was intended for key al Qaeda operatives but killed 18 Pakistani villagers.

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For more legal news check the Paper Chase Archive...


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

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