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Legal news from Thursday, September 1, 2011

ICC begins hearings in Kenya post-election violence cases
Andrea Bottorff on September 1, 2011 3:40 PM ET

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[JURIST] The International Criminal Court (ICC) [official website] on Thursday began hearings at The Hague in the cases against six Kenyans accused of crimes against humanity stemming from 2007 post-election violence [JURIST news archive]. The hearings will confirm the charges against three of the six men and will establish if prosecutors have enough evidence to hold a trial. The suspects attending Thursday's hearings, including politician Henry Kiprono Kosgey, radio broadcaster Joshua Arap Sang and presidential candidate William Samoei Ruto, will argue that the ICC does not have jurisdiction [ICC materials] over them. The other three suspects are scheduled to appear for confirmation of charges hearings on September 21. The confirmation hearings began two days after the ICC appeals chamber rejected an appeal [JURIST report] filed by the Kenyan government and confirmed a Pre-Trial Chamber ruling refusing to transfer the cases. The government of Kenya on Thursday also filed a request [PDF] to have legal representation in the courtroom to observe the confirmation of charges proceedings.

The men are part of the "Ocampo Six," and are facing trial [JURIST report] for allegedly inciting violence during and after the December 2007 Kenyan elections. The Ocampo Six include several high-ranking members of Kenya's government, the head of operations at Kass FM [official website] in Nairobi and the son of Kenya's first president, Jomo Kenyatta [Africa Within backgrounder]. Three of the men are members of the Orange Democratic Movement (ODM) [party website] and the other three are members of the opposing Party for National Unity (PNU). The ICC summoned the suspects [JURIST report] after determining they would not be charged in Kenya for the alleged crimes. In April, Kenya requested that the ICC dismiss the case [JURIST report], arguing that the government is capable of prosecuting the six men domestically. Lawyers for the Ocampo Six called for the timely release of evidence [JURIST report] against their clients that month as well.

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UN rights official concerned for Syria journalists
Michael Haggerson on September 1, 2011 3:31 PM ET

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[JURIST] Director General of the UN Educations, Scientific and Cultural Organization (UNESCO) [official website], Irina Bokova [official website], expressed concern Thursday over the abuse of journalists in Syria [press release]. She stated: "Torture and detention will never convince the people of Syria that might is right. It is essential for the future of the country and its people that the authorities respect freedom of expression and listen to what their critics have to say." This is the second time that Bokova has condemned Syria for violence against journalists [JURIST report]. On Sunday, Syrian President Bashar al-Assad [BBC profile] repealed some restrictive media laws [JURIST report] which allowed for the imprisonment of journalists. However, the law still bans any news relates to the armed forces or news that "affects national unity and national security, incites sectarian strife, incites crimes or hatred, or harms state symbols." Additionally, the law extends accountability for media violations to editors, journalists and media spokespersons.

Last month, Syrian political cartoonist Ali Ferzat was found badly beaten [AP report], allegedly by pro-Assad forces. As an apparent message to critics of the Syrian president, the cartoonist's hands were specifically targeted during the attack. Also last month, Amnesty International [advocacy website] issued an urgent action [text, PDF] warning that Hanadi Zahlout, a Syrian women's rights activist and freelance journalist, was arrested by the Assad's forces earlier in the month and is at a "serious risk of torture or other ill-treatment."

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New Mexico judge blocks immigrant residency verification program
Michael Haggerson on September 1, 2011 2:46 PM ET

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[JURIST] A New Mexico judge on Wednesday temporarily blocked [opinion, PDF] the "Residency Verification Program" [press release], announced last month by Governor Susana Martinez [official website]. Judge Sarah Singleton stated that "irreparable injury will occur in the form of constitutional deprivations" if the "Residency Verification Program" is not halted. The Mexican American Legal Defense and Education Fund (MALDEF) [advocacy website] filed the restraining order [text, PDF] and an accompanying writ of mandamus [text, PDF], arguing that the program is unconstitutional [press release] "because it unfairly targets certain Latinos in New Mexico and places a higher burden on them beyond what the law requires of other residents" and it "constitutes a gross usurpation of power from the Legislature." The governor argues that the program is necessary because New Mexico is one of the few states that does not require proof of residency for a driver's license and therefore it has become a haven for "license rings" which obtain driver's licenses for individuals who have no intention of staying within the state. The program, if allowed to continue, would require a random sample of 10,000 immigrants who have obtained New Mexico driver's licenses to verify their residency via an in-person appointment.

Driver's licenses and immigration reform have been a contentious issue throughout the country. In August, the state of Arizona appealed the ruling [JURIST report] upholding the injunction against a controversial immigration law to the US Supreme Court. The act would require, in part, any individual with a license from a state which does not require proof of citizenship to obtain a license, such as New Mexico, to carry additional documentation [JURIST report] to prove their citizenship. In June, a group including the American Civil Liberties Union and the National Immigration Law Center [advocacy websites] succeeded in blocking [JURIST report] a controversial Georgia immigration law which would allow law enforcement officers to not accept driver licenses [JURIST report] from states that do not require a proof of citizenship to obtain a driver's license and detain individuals with these licenses for failure to prove citizenship. Georgia Attorney General Sam Olens [official website] announced in August that he would appeal the ruling [JURIST report].

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Europe committed crimes during counter-terrorism efforts: rights chief
Andrea Bottorff on September 1, 2011 1:57 PM ET

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[JURIST] The Council of Europe (COE) [official website] Commissioner for Human Rights Thomas Hammarberg [official profile] on Thursday accused European governments of numerous human rights violations [statement] during counter-terrorism efforts over the past 10 years. Hammarberg said that many European countries began helping the US with secret counter-terrorism measures after the 9/11 attacks [JURIST archive]. Those measures allegedly included rendition of suspects with the cooperation of local police and the US Central Intelligence Agency (CIA) [official website], detention in covert facilities and interrogation involving torture. The efforts bypassed traditional judicial systems in European nations:
Governments across the European continent have acted in line with the wishes of the US to prevent proper investigations, and particularly judicial scrutiny, of the abuses arising from rendition operations. The message is clear–good relations between the security agencies are deemed more important than preventing torture and other serious human rights violations.
Hammarberg accused officials of covering up evidence of the crimes. He also called on COE member states to begin immediate investigations into rights violations and to allow the crimes to face judicial scrutiny.

The COE's renewed call for investigations into counter-terrorism actions corresponds with the tenth anniversary of the 9/11 attacks. In 2006, the COE urged member states to launch investigations after accusing [JURIST report] 14 European countries of collaborating with the CIA by taking an active or passive role in a "global spider's web" of secret prisons and rendition flights. The accusation followed publication of a COE report [PDF] detailing the results of an investigation into alleged secret detention centers [COE materials] and illegal rendition flights operated by the CIA in Europe. The report also referenced the cases of 17 detainees who claim they were kidnapped by US agents and transported to facilities around the globe, including in Romania and Poland. The European Parliament [official website] that year also conducted a similar investigation [JURIST report].

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Indiana union challenges public employee collective bargaining prohibition
Dan Taglioli on September 1, 2011 12:41 PM ET

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[JURIST] A public employees union has filed a lawsuit in Indiana state court challenging a state law disallowing future recognition of public employee collective bargaining rights. The American Federation of State, County and Municipal Employees Council 62 [advocacy website], which represents Indiana state employees, announced that it has filed suit [press release] in Marion County Circuit Court against Governor Mitch Daniels [official websites] and his state personnel director Daniel Hackler. The union contends that the legislature unconstitutionally included a collective bargaining prohibition in its passage of the 2011 state budget bill [HEA 1001, PDF]. The union is seeking to nullify the ban based on separation of powers provisions in Indiana's constitution [materials], which hold that the state executive branch has jurisdiction over administrative procedures and employee/employer relations, not the legislature. The budget provisions at issue add a new Chapter to the Indiana Code, effectively making collective bargaining between the state and any union illegal, and taking away any future governor's ability to sign an executive order that would confer collective bargaining rights to state employees:
Sec. 4. Collective bargaining between the state and employee organizations and strikes by state employees are illegal. Sec. 5. The state shall not: (1) recognize a union or any other employee organization as a representative of the employees of the state; (2) bargain collectively with an employee organization; (3) enter into a collectively bargained agreement; or (4) require an employee to join or financially support an employee organization.
In addition to challenging the new law as a violation of constitutional separation of powers, the union's lawsuit claims a violation of the Indiana constitution's equal privileges and immunities provision, in that the legislature proscribed collective bargaining for all state employees but provided an exception for the union representing State Police officers. The suit also alleges that the labor provisions being challenged violate the Indiana constitution's single-subject requirement for bills passed by the legislature.

Restrictive collective bargaining laws have been advanced in several states this year. Ohio voters will decide whether to repeal a law [SB 5 text, PDF] limiting the collective bargaining rights of state workers after opponents of the bill gathered 915,456 signatures [JURIST report] in late July. The bill was passed [JURIST report] in March, but will not go into effect until it survives the public referendum in November. Ten Wisconsin unions filed [JURIST report] a lawsuit in federal court in June challenging the state's new collective bargaining law. The lawsuit alleges that the Budget Repair Bill [Senate Bill 11 text, PDF] violates the First and Fourteenth Amendments [texts]. According to the plaintiffs, the bill discriminates among groups of public employees and eliminates basic union rights, like bargaining, organizing and associating. In July, a judge for the US District Court for the District of Idaho [official website] issued a preliminary injunction [JURIST report] blocking the enforcement of an Idaho anti-union law [SB 1007] that bans a union program that subsidizes employment for its members. The law, called the Fairness in Contracting Act, prohibits union programs used by construction workers unions that pool portions of union wages on a voluntary basis to subsidize union labor to enable union members to be hired at the collectively bargained salary.

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Liberia constitutional amendments rejected in national referendum
Dan Taglioli on September 1, 2011 11:31 AM ET

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[JURIST] Liberia's National Election Commission (NEC) [official website] on Wednesday announced that all four proposed amendments to the Republic's constitution were voted down [press release] in last week's national referendum. One defeated proposal was to move back the national election date from the first Tuesday in October to the first Tuesday in November, pushing the election out of the rainy season, which might increase voter turnout, and closer to the January presidential inauguration, which would help to alleviate security concerns. Another change, also rejected, called for a simple majority for victory in local and legislative polls, which aimed to elect officials in a single round, doing away with expensive run-off elections. Also defeated was the proposed amendment to raise the Liberian Supreme Court judge retirement age from 70 to 75. The most controversial proposal would have lowered the residency requirement for presidential candidates from 10 years to five. Predictions are that this change would open up the field to more opposition party candidates and disqualify others, cumulatively increasing the chance for reelection for President Ellen Johnson Sirleaf [Guardian backgrounder]. The existing residency rule was suspended for the 2005 election because most candidates had recently returned from post-war exile. In her results announcement from the capital city of Monrovia, NEC Co-chairman Elizabeth Nelson [official profile] calculated that the 34.2 percent turnout rate for the 1,798,930 eligible voters had required each proposal to have more than 400,000 votes to pass (a two-thirds majority). With 99 percent of polls reporting, none of the proposals passed the 300,000 mark. Opposition party Congress for Democratic Change [party website] reportedly called on its members to boycott the election [Bloomberg report] and are calling the referendum a victory against the ruling Unity Party.

With no reports of violence at the polls, the referendum still had its procedural issues, including the NEC's distribution of defective paper ballots [JURIST report]. Despite the referendum, Liberia has been criticized for its poor human rights record in recent years. UN Secretary-General Ban Ki-Moon [official profile] emphasized [UN News Centre report] in a 2010 progress report [text, PDF] that reconciliation in Liberia [JURIST report] hinges on the development of its national security and its legal institutions. Liberia struggles [JURIST report] with corruption in its criminal justice system, poor detention conditions and sexual and gender-based violence, including rape and forced marriage, according to a UN Mission in Liberia [official website] combined quarterly report [text, PDF] released in April 2008. In 2007, the UN independent expert on the promotion and protection of human rights in Liberia urged the country to accelerate its human rights efforts [JURIST report], and in particular called on the Liberian Truth and Reconciliation Commission (TRC) [official website] to begin operations. The TRC held its first public hearings [JURIST report] after several months delay due to lack of funding. The TRC is investigating possible war crimes that occurred during the civil war that ended in 2003, but does not have the authority to try cases.

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Rights groups urge US appeals court to preserve suit over warrantless surveillance
Zach Zagger on September 1, 2011 10:41 AM ET

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[JURIST] Lawyers for the Electronic Frontier Foundation (EFF) [advocacy website] on Wednesday urged the US Court of Appeals for the Ninth Circuit [official website] in Seattle to preserve two lawsuits over the warrantless surveillance of US citizens. EFF argued that the government should not be able block the suits under claims of state secrets. The EFF says that the National Security Agency (NSA) unconstitutionally intercepted phone calls and emails of US citizens by accessing the communication database records from AT&T. It argues that the government has not proven a necessity for invocation of the state secrets privilege [reply brief, PDF] and alternatively, the privilege is preempted by the Foreign Intelligence Surveillance Act (FISA) [text]. EFF Senior Staff Attorney Kevin Bankston said the courts should be able to review NSA's surveillance [press release]:
The scope and legality of the NSA program has been the subject of widespread reporting and debate for half a decade—it is hardly a secret. And Congress long ago crafted balanced and comprehensive security procedures to govern courts' handling of secret evidence about electronic surveillance to ensure that the Judicial Branch is always able to watch over Executive Branch spying while preserving national security. Yet the government still claims that any judicial scrutiny of the NSA program would disclose 'state secrets' and harm national security. It's time for these lawsuits to proceed and for the courts to be allowed to do their job and determine the legality of the NSA program.
The US District Court for the Northern District of California [official website] dismissed Hepting v. AT&T and Jewel v. NSA in 2009 and 2010, respectively.

The NSA has come under controversy for its surveillance since 9/11. Last January, the EFF published a report [text] summarizing nearly 2,500 pages of government documents obtained through Freedom of Information Act (FOIA) [text] litigation. Many of the documents are reports made to the Intelligence Oversight Board (IOB) [official website], an independent agency within the office of the president that oversees the Intelligence Community's compliance with the Constitution and all applicable laws, executive orders, and presidential directives. The report states, "[t]he documents suggest that FBI intelligence investigations have compromised the civil liberties of American citizens far more frequently, and to a greater extent, than was previously assumed." According to the documents, the reported violations to the IOB included violations of intelligence procedures governing investigations and abuses of the FBI's National Security Letter authority, and nearly a fifth were violations of the Constitution, FISA, or other laws governing criminal investigations. The FBI said the violations were due to technical mistakes [LAT report] and the amount of substantive violations is small. Last September, the US Department of Justice (DOJ) Office of the Inspector General (OIG) [official website] released a report absolving the FBI of charges [JURIST report] that agents conducted investigations of domestic groups based on their exercise of First Amendment [text] rights.

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Colombia high court reinstates ex-minister's murder conviction
Zach Zagger on September 1, 2011 9:24 AM ET

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[JURIST] The Colombian Supreme Court [official website, in Spanish] on Wednesday reinstated the murder conviction against ex-politician Alberto Santofimio Botero for the 1989 killing of Luis Carlos Galan, a political opponent of the drug cartels. The court issued an arrest warrant [El Espectador report] for Santofimio, the former justice minister whose conviction and 24-year sentence were overturned by the High Court of Cundinamarca. He is accused of urging drug cartel kingpin Pablo Escobar to kill his political opponent, Galan, suggesting that Galan would crack down on Escobar and the drug trade. Galan was murdered [AP report] by Escobar's hitmen, one of whom, John Jairo Velasquez, known as "Popeye," was a key witness against Santofimio at his original trial. The court reinstated the conviction after an appeal by Galan's family.

Escobar led the Medellin Cartel drug cartel, which was one of the world's largest suppliers of cocaine. He was killed by police in 1993. Colombia has been struggling with internal violence for decades. In May, the Colombian Senate [official website, in Spanish] passed a law to compensate citizens who have been victimized [JURIST report] 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.

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Former Croatia PM indicted for corruption
Erin Bock on September 1, 2011 8:50 AM ET

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[JURIST] Former Croatian prime minister Ivo Sanader was indicted [press release, in Croatian] on Wednesday for corruption. The country's Bureau for Combating Corruption and Organized Crime (USKOK) [official website, in Croatian] alleges Sanader received a pay-off of more than 3.6 million kuna (nearly USD $695,000) from Austria's Hypo Alpe-Adria-Bank [official website, in German] in exchange for the country entering into a loan agreement to receive 140 million Austrian Schillings (USD $14.7 million) in order to place the bank in the Croatian market. The indictment alleges that Sanader made the deal while he was Deputy Minister of Foreign Affrairs between 1994 and 1995. Sanader is charged with violating provisions of the country's criminal code [text, PDF] regarding abuse of office and official authority, fraud and corruption.

Sanader was extradited to Croatia in July in order to face these charges after he was arrested [JURIST reports] in Austria last December. Sanader had begun an appeal, arguing that it would be impossible to receive a fair trail in Croatia, but he dropped it after media speculation [JURIST report] suggested the appeal could harm Croatia's accession to the European Union (EU) [official website]. In June, the European Council [official website] agreed to grant Croatia EU membership following six years of accession negotiations. The decision calls for negotiations to close by the end of the month and the accession treaty to be signed by year's end, allowing for the country to become the 28th member of the EU on July 1, 2013. In the interim, EU leaders strongly encouraged Croatia to continue pursuing crucial reform initiatives.

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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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