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Legal news from Tuesday, September 20, 2011

Holder: Obama committed to closing Guantanamo
Sarah Posner on September 20, 2011 2:18 PM ET

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[JURIST] US Attorney General Eric Holder said Tuesday President Barack Obama [official websites] remains committed to closing the detention facility at Guantanamo Bay [JURIST news archive], despite political opposition. At the European Parliament in Brussels, Holder stated the administration's commitment to closing Guantanamo before the next presidential election [AP report]. Obama has faced criticism for not closing Guantanamo after issuing an executive order [text, PDF] in January 2009 directing that the military prison be closed [JURIST report] "as soon as practicable, and no later than 1 year from the date of this order." However, Congress blocked the executive order and barred the transfer of detainees to the US. US Defense Secretary Robert Gates [official profile] said at a congressional hearing in February that Guantanamo Bay is unlikely to be closed [JURIST report] because of security concerns.

There are 171 detainees remaining at Guantanamo. Earlier this month, the US Court of Appeals for the District of Columbia Circuit affirmed [JURIST report] the 2010 denial of petition for a writ of habeas corpus [Cornell LII backgrounder] for Guantanamo detainee Shawali Khan. In August, Former Guantanamo Bay detainee David Hicks has filed an appeal [JURIST report] with the UN Human Rights Committee complaining of multiple violations of international law stemming from his five-year incarceration at Guantanamo from 2002 to 2007. In July, an EU official told the Miami Herald that Europe is still willing to resettle Guantanamo Bay detainees [JURIST report] despite Congress' efforts to prevent closure and transfers. In a display of commitment to a 2009 agreement [JURIST report] with the US, the EU reiterated that detainees would still be accepted on a case-by-case basis.

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Alaska judge allows tax exemption for same-sex couples
Sarah Posner on September 20, 2011 1:05 PM ET

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[JURIST] Alaska Superior Court Judge Frank Pfiffner on Friday ruled it unconstitutional [opinion, PDF] for Alaska to deny same-sex couples the senior citizen and disabled veteran property tax exemptions given to married couples. The American Civil Liberties Union (ACLU) and the ACLU of Alaska [advocacy websites] challenged [complaint, PDF] the state's tax exemption law on behalf of three same-sex couples in Anchorage who were denied tax benefits [AP report] for lacking marital status. The complaint alleged that Alaska's Constitution forbids discrimination against same-sex domestic partners in qualifications for tax exemptions. The complaint further alleged that denying tax exemptions to same-sex couples infringed on the plaintiffs' natural right to liberty, equal rights, opportunities, and protection under the law, as well as the right to be free from sex discrimination, and the right to privacy. Pfiffner found that the denial violates the equal protection clause of the Alaska Constitution [text].

Rights for same-sex couples continue to be debated across the US. Last week, New York Attorney General Eric Schneiderman filed a motion to dismiss [JURIST report] a lawsuit challenging the validity of the state's newly passed Marriage Equality Act [JURIST report]. Also last week, the North Carolina Legislature approved putting a constitutional amendment to ban same-sex marriage [JURIST report] on a statewide ballot to be voted on in May. Earlier this month, the US Court of Appeals for the Ninth Circuit ruled [JURIST report] that House Bill 2013, a law rescinding health benefits for same-sex couples in the public sector, is in violation of the equal protection clause of the US Constitution.

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Europe court rules Russia violated Yukos oil's rights
Jennie Ryan on September 20, 2011 11:23 AM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] ruled [judgment text] Tuesday that, although Russia did not misuse legal proceedings in order to destroy an oil company, it did violate the business's rights. The former Russian oil company, Yukos Oil, filed suit against the country alleging that it forced the company into liquidation through unfair taxation practices. In 2003, Russian officials arrested former Yukos Oil owner Mikhail Khodorkovsky [defense website; JURIST news archive] and his business partner Platon Lebedev [defense website] on charges of fraud and tax evasion. The court ruled that Russia violated Article 1 and Article 6 of the European Convention on Human Rights [text, PDF] in relation to its tax assessment proceedings against Yukos and by giving the company insufficient time to prepare its case before the lower courts. The court did not determine an award of damages and costs. Yukos sought recovery of USD $98 billion, the largest claim in the history of the ECHR. The ruling may be appealed by either party, but it is not immediately clear if either will do so.

Khodorkovsky and Lebedev were convicted in December and sentenced [JURIST reports] in the Khamovinchesky District Court [official website, in Russian] on charges connected with embezzling more than $27 billion from Yukos Oil. Prior to this conviction, Khodorkovsky and Lebedev were already serving eight-year prison sentences for fraud and tax evasion [JURIST report]. Earlier this month, the Supreme Court of Russia [official website, in Russian] ruled that Khodorkovsky and Lebedev were illegally detained [JURIST report] for their trial last year, a symbolic victory for the pair that will have no effect on their sentences. International human rights organizations and numerous governments criticized Russia's justice system following the guilty verdict [JURIST reports]. Last year, former Russian prime minister Mikhail Kasyanov [BBC profile] testified [JURIST report] that former president and current prime minister Vladimir Putin [JURIST news archive] ordered Khodorkovsky's arrest for political reasons, indicating that Khodorkovsky had funded the Communist Party [party website, in Russian] without first getting approval to do so from the president.

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'Don't Ask Don't Tell' officially repealed
Jennie Ryan on September 20, 2011 10:36 AM ET

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[JURIST] The repeal of Don't Ask, Don't Tell (DADT) [10 USC § 654; JURIST news archive] officially took effect [memo, PDF] Tuesday at 12:01 AM ET. With the repeal of the law, the military can no longer prevent gays and lesbians from serving openly among its ranks. The occasion was marked by statements of commemoration from various government agencies, as well as individual officials. President Barack Obama [official website] released a statement [text] celebrating the fact that "patriotic Americans in uniform will no longer have to lie about who they are in order to serve the country they love." The US Army [official website] released a statement [text, PDF], signed by three of its highest ranking officials, heralding the end of the controversial law:
From this day forward, gay and lesbian Soldiers may serve in our Army with the dignity and respect they deserve. Our rules, regulations and policies reflect the repeal guidance issued by the Department of Defense and will apply uniformly without regard to sexual orientation, which is a personal and private matter.
The letter also highlighted the training military personnel have received in preparation for the change. Department of Defense (DOD) [official website] press secretary George Little said that that the military is adequately prepared for the end of the current policy, with approximately 97 percent of the military having undergone specific DADT repeal preparation. Various Washington leaders have scheduled news conferences for later Tuesday. At the Pentagon, Defense Secretary Leon Panetta [official profile] and the Chairman of the Joint Chiefs of Staff Admiral Mike Mullen [official profile] will field questions about the repeal, while a bipartisan group of congressional supporters of the repeal will be answering questions on Capitol Hill.

The repeal took effect as scheduled despite opposition from some. Four days before the repeal was scheduled to go into effect, two Republican Congressmen sent a letter to Panetta asking to delay the repeal [JURIST report] of DADT. Earlier this month, lawyers for the US Department of Justice (DOJ) asked the US Court of Appeals for the Ninth Circuit [official websites] to overturn a ruling that the DADT policy is a violation of service members' constitutional rights, arguing that the impendency of repeal renders the original court decision moot. In July, the Ninth Circuit ruled that DADT would remain partially in effect [JURIST report] during the 60 days prior to its newly-scheduled repeal. The court effectively reiterated its order issued [JURIST report] the previous week, in which it reinstated DADT but explicitly ordered the military to refrain from investigating, penalizing or discharging any of its members as originally provided for under the policy. Hours earlier, Obama, Panetta and the Joint Chiefs of Staff certified DADT's repeal [JURIST report], scheduling the policy to end on September 20. Obama signed the bill to repeal DADT [JURIST report] in December. The Don't Ask, Don't Tell Repeal Act of 2010 [HR 2965 materials] 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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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
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CUNY School of Law

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