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Legal news from Wednesday, February 29, 2012

Supreme Court rules state tort law claims preempted by federal locomotive statute
Maureen Cosgrove on February 29, 2012 2:19 PM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Wednesday in Kurns v. Railroad Friction Products Corp. [SCOTUSblog backgrounder] that the federal Locomotive Inspection Act (LIA) [49 USC § 20701] preempts state-law design-defect and failure-to-warn claims because these claims fall within the field of locomotive equipment regulation preempted by the act. The petitioner, George Corson, contracted mesothelioma and passed away after working as a welder and mechanic on the braking system of trains which contained asbestos. Corson had urged the court [JURIST report] to construe the LIA narrowly as applying to the safety of locomotives in use on railroad lines and not applying to hazards to mechanics conducting repairs. The court relied on its decision in Napier v. Atlantic Coast Line R. Co. [text] to hold that the petitioner's claims were preempted pursuant to the field preemption doctrine, which applies "when the scope of a [federal] statute indicates that Congress intended federal law to occupy a field exclusively." The court rejected the petitioner's arguments that the Federal Railroad Safety Act of 1970 (FRSA) altered the LIA's preemptive scope and that the failure-to-warn claim could prevail even if the design-defect claim was preempted.

Justice Elena Kagan, in her concurring opinion, concluded that the design-defect and failure-to-warn claims were preempted by the LIA because "Napier recognized the federal agency's delegated authority over "the design, the construction and the material of every part of the locomotive."" Justice Sonia Sotomayor concurred in part and dissented in part, and was joined by Justices Stephen Breyer and Ruth Bader Ginsburg. Though they agreed that the design-defect claim was preempted by the LIA, they concluded that the failure-to-warn claim was not preempted because the field defined in Napier differently today because recent cases have regularly rejected the field preemption doctrine when statutory language does not contain an express preemption clause.

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US House approves bill restricting eminent domain
Sarah Posner on February 29, 2012 1:56 PM ET

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[JURIST] The US House of Representatives [official website] approved legislation [HR 1443 text] on Tuesday restricting the ability of states to take control over private property for public use under eminent domain [Cornell LII backgrounder; JURIST news archive]. The Private Property Rights Protection Act of 2012 [materials] would effectively overturn the 2005 US Supreme Court [official website] decision in Kelo v. City of New London [text], authored by retired justice John Paul Stevens. The Kelo case drew sharp criticism, particularly from Republicans who believed the court disregarded the traditional standard for "public use." The proposed act would prevent states from seizing private property for the purpose of economic development and create a private cause of action for property owners. The act reads:
No State or political subdivision of a State shall exercise its power of eminent domain, or allow the exercise of such power by any person or entity to which such power has been delegated, over property to be used for economic development or over property that is used for economic development within 7 years after that exercise, if that State or political subdivision receives Federal economic development funds during any fiscal year in which the property is so used or intended to be used.
The White House has remained silent regarding its position on the proposed legislation, and the Senate has yet to decide whether to consider the act.

The power of the government to take private property and convert it into public use is a doctrine long held. States can enact limitations on government takings to further citizen protections flowing from the Fifth Amendment. In November, Mississippi voters overwhelmingly approved an amendment to the state constitution limiting the power of eminent domain [JURIST report] in the state. The approved measure would prohibit, with certain exceptions, state and local government from conveying acquired private property to other persons or private businesses for a period of 10 years after acquisition. In 2010, voters in Nevada rejected a ballot initiative [JURIST report] that would have expanded state power by defining five exceptions to an existing general prohibition against exercising eminent domain to transfer property from one private party to another.

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Top al Qaeda official reportedly arrested at Egypt airport
Max Slater on February 29, 2012 12:27 PM ET

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[JURIST] Former al Qaeda [JURIST news archive] military commander Saif al-Adel [Telegraph profile] was arrested at an airport in Cairo [Al Ahram report] on Tuesday, according to the Egyptian media. Egyptian security officials detained al-Adel upon his arrival after noticing that his name appeared on the passenger list on a flight from Pakistan. Before he was taken away for questioning, however, al-Adel contended that Egyptian officials had mistaken his identity [BBC report], and that he was not the al Qaeda official that authorities sought. Doubts have since emerged over whether the man detained on Tuesday is actually al-Adel. The Christian Science Monitor reported [text] that the man arrested by Egyptian officials was probably an Egyptian militant who shares a similar alias to al-Adel. al-Adel has been on the FBI Most Wanted Terrorists Lists [materials] since 1998 for his connection with the August 7, 1998, bombings of US embassies in Nairobi, Kenya and Dar Es Salaam, Tanzania. The US Department of State [official website] is offering a five million dollar reward for his capture.

In September a CIA drone strike in Yemen killed senior al Qaeda leader [JURIST report] and US citizen Anwar al-Awlaqi [BBC profile; JURIST news archive]. The strike marked the US government's most successful attack against al Qaeda since the raid leading to the death of Osama bin Laden [JURIST report] in Pakistan last May. In June al Qaeda operative Fazul Abdullah Mohammed was killed [JURIST report] by security forces at a checkpoint in Somalia. Mohammed was on the FBI Most Wanted Terrorists Lists [materials] for his involvement in the 1998 US embassy bombings. Al-Adel, who has also gone by the alias Mohammed Ibrahim Makkawi, has drawn a great deal of international interest since the US embassy bombings. In May, following Osama Bin-Laden's death, al-Adel operated as the interim head of Al Qaeda [Telegraph report]. In March 2011, al-Adel published a series of letters [materials] covering the Arab Spring [JURIST news archive] uprisings.

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Egypt judges withdraw from NGO case
Rebecca DiLeonardo on February 29, 2012 12:18 PM ET

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[JURIST] All three judges responsible for adjudicating the criminal prosecution of 43 non-governmental organization (NGO) employees withdrew from the case on Tuesday. It is not clear why the judges chose to withdraw [AP report], but Egyptian lawyer and rights activist Ahmed Seif al-Islam suggested it could be a result of political pressure. The case, tried in a Cairo Criminal Court, involves individuals that have been charged with promoting democracy [JURIST report] in Egypt without proper documentation and through the use of illegal funds. The suspects, including 16 Americans, 27 other foreigners and Egyptians, are employees of NGOs that advocate democracy in Egypt. The case has strained Egypt's relationship with the US. Earlier this month, US Ambassador to the UN Susan Rice [official profile] called on Egypt to release the suspects [Politico report], and US Secretary of State Hillary Clinton [official profile] threatened to reconsider the $1.3 billion in annual aid [Reuters report] given to Egypt. On Wednesday, however, Clinton said she believed the issue would be resolved in the near future [Reuters report]. An Egyptian court official said Tuesday that new judges will be assigned to try the NGO case. If convicted, the suspects face up to five years in prison.

The Egyptian government has faced criticism recently for its persecution of NGO employees. On Sunday, A Cairo Criminal Court judge adjourned the trial until April [JURIST report] following the first day of the trial. None of the defendants from America or Europe was present for the first day of trial. In an interview [text], Clinton said the US is "working with the highest levels of the existing Egyptian authorities and ... hoping to get this resolved." Earlier this month, Egyptian investigative judges referred the NGO case to a criminal court in Cairo [JURIST report]. In January, the Egyptian government denied cracking down on NGOs [JURIST report] amid accusations by various human rights groups that Egypt was trying to silence the military council's vocal opposition. In December the Egyptian government agreed to cease its raids of NGOs [JURIST report], after the US expressed concern about Egypt's approach toward NGO activity. Egyptian police raided the offices of 17 pro-democracy and human rights groups [Reuters report] in December, citing foreign funding as a main concern.

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Guantanamo Bay prisoner pleads guilty to terror charges
Saheli Chakrabarty on February 29, 2012 12:08 PM ET

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[JURIST] Majid Khan [GlobalSecurity profile], a Guantanamo Bay [JURIST backgrounder] prisoner who is linked with al Qaeda, pleaded guilty [text, PDF] on Wednesday to five terror charges including conspiracy, attempted murder and murder. Per his plea bargain, Khan must testify against fellow "high value" prisoners who are alleged to have been involved in the 9/11 terrorist attacks [JURIST backgrounder]. The list of detainees against whom Khan will testify includes Khalid Sheikh Mohammed [BBC profile], one of the alleged designers of the 9/11 attacks, and others who are also believed to have been involved. In return for his cooperation Khan will get a reduced sentence of up to 25 years in prison, rather than life in prison, which he previously faced. Khan stipulated [text, PDF] to aiding in the 2003 terror attacks in Jakarta, Indonesia, and conspiring to carry out other terrorist activities, including the attempted assassination of former Pakistani President Pervez Musharraf [BBC profile; JURIST news archive]. Khan is set to be sentenced in 2016, giving him time to testify at other military trials. This is the first agreement offered to a Guantanamo detainee that guarantees freedom in exchange for testimony.

Khan was charged with war crimes, including murder, attempted murder, spying and providing material support for terrorism. Before being transferred to Guantanamo in 2006, both Khan's father and Khan's lawyer [JURIST reports] claimed in 2007 that the detainee had been subject to "state-sanctioned" torture while being held in secret CIA prisons. Khan was denied access to civilian legal counsel [JURIST report] by a federal judge in 2006. Gitanjali Gutierrez, a Guantanamo Global Justice Initiative Attorney from the Center for Constitutional Rights [official website] criticized the US government [JURIST comment] in 2006 for prohibiting Kahn from sharing certain classified information with his counsel. Khan was captured in Pakistan in March 2003 and held in CIA prisons until he and 13 other high-profile detainees, including Sheikh Mohammed, were transferred to the US prison [DNI profiles, PDF; BBC profiles] at Guantanamo Bay, Cuba.

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Federal court issues new Texas voting district maps
Jennie Ryan on February 29, 2012 11:01 AM ET

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[JURIST] A panel of three judges in the US District Court for the Western District of Texas [official website] on Tuesday issued new voting maps [materials] for use in the 2012 elections. The new maps were issued after the US Supreme Court [official website] rejected [JURIST report] Texas's interim redistricting maps in an emergency appeal [JURIST report] filed to challenge an interim map drawn up by the US District Court for the Western District of Texas. The Supreme Court rejected the initial interim maps, finding that, "it is unclear whether the District Court for the Western District of Texas followed the appropriate standards." State Attorney General Greg Abbott [official website] released a statement [press release] calling the new maps a "substantial improvement" and stating that the "new interim maps more accurately reflect the decisions of elected Texas legislators" as per the requirement of the Supreme Court. The new maps clear the way for the Texas primary election which has been delayed twice. The tentative date for the primary has been set [NYT report] for May 29, but, if there is an appeal of the new maps the date could be pushed back once again.

According to the 2010 census, Texas' population grew by 4.3 million, which gave it four more seats in the US House of Representatives. The Republican-controlled state legislature redrew the congressional districts in a way that challengers claim would make it more likely for Republicans to win those new seats. The plan must be approved by either the Justice Department or a federal court under Section 5 of the Voting Rights Act (VRA) [Cornell LII backgrounder], and the Obama administration has objected to the plan. In the meantime, the federal court in Texas drew an "interim map" for use in the 2012 election. That is the map that was challenged before the Supreme Court. The Obama administration urged the Supreme Court to reject the interim maps, and the court heard arguments [JURIST reports] in the case last month.

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Supreme Court hears arguments on corporate liability for torture overseas
Dan Taglioli on February 29, 2012 10:51 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Tuesday. In Kiobel v. Royal Dutch Petroleum Co. [transcript; JURIST report], the court heard arguments on whether three oil companies are immune from US lawsuits under the Alien Tort Statute of 1789 (ATS) [text] for alleged torture and international law violations that took place overseas. International law does not address corporations in defining who can be sued for human rights abuses. While accepting that international law is the proper authority to define human rights violations, the petitioners, Nigerian plaintiffs suing foreign-based oil companies, argued that domestic US common law should fill in the blank in ATS over who could actually be sued for such atrocities. The US government sided with the petitioners, with Deputy Solicitor General Edwin Kneedler providing the additional argument that international law does not independently foreclose foreign corporate liability the way that it immunizes a foreign government from liability for official wrongdoings. The respondent oil companies argued that international law is wholly controlling in such a situation and that domestic US common law has no bearing on the proceedings. Respondents pressed the fact that not only does international law not recognize corporate responsibility for the alleged offenses, but the world community has never recognized corporate liability for the misdeeds of individuals: "No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection." While the issue in the case was supposed to focus on "the narrow issue of whether a corporation can ever be held liable for violating fundamental human rights norms under the Alien Tort Statute," the court frequently pushed petitioners on the specific point of whether Congress intended ATS to permit suits by aliens against aliens for overseas acts.

The court also heard arguments for a similar case, Mohamad v. Palestinian Authority [transcript], in which the court will decide whether political organizations including the Palestinian Authority and the Palestine Liberation Organization are immune from liability under the Torture Victims Protection Act of 1992 (TVPA) [text]. As in Kiobel, the plaintiffs in this case allege human rights violations against an entity other than an individual person. The TVPA allows lawsuits to be brought in US courts against "any individual who, under actual or apparent authority, or color of law, of any foreign nation" subjects another individual to torture. The petitioners argued that, unlike Kiobel, there is no issue as to whether "Congress expressly created the cause of action at issue in a statute" because "in every single other Federal court statute that Congress has ever enacted, it has provided for organizational liability." Respondents argued that the petitioners' argument is merely an "attempt to inject ambiguity into what is a very unambiguous term in US legal usage by referring ... to a supposed subtle definition of 'individual' in international law." Respondents argued that "individual" is not a term of art with specialized meaning in international law that would differentiate its usage is US law, and that Congress was proceeding incrementally in enacting liability under the statute, limiting its reach short of imposing secondary liability on a class of institutions such as political organizations.

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UK urges changes to the European human rights convention
Katherine Getty on February 29, 2012 10:33 AM ET

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[JURIST] The UK has begun circulating a proposal for changes to the European Convention on Human Rights [text], which was leaked to the press on Tuesday. The proposal, entitled the Brighton Declaration [text, PDF], began circulating to member states last week. It is expected to be voted on in April when members states meet to discuss the future of the European Court of Human Rights (ECHR) [official website]. The proposal calls for a number of amendments [BBC report] to the convention with the most notable allowing the court to issue advisory opinions. Additionally, the would allow nations greater leeway in applying the court's decisions on their citizens. This proposed amendment is directly in line with a statement [JURIST report] by the UK's highest judge in October that found ECHR decisions are not binding. Due to the controversial nature of the amendments, unanimous approval from all 46 member states must be received before the proposal can go through. The government's actions were not unexpected, though, because members of the government have promised for years to use the rotation of the court's presidency as a platform for reform.

Earlier this month a UK think tank urged the country to withdraw [JURIST report] from the ECHR altogether in favor of a national high court. Tensions between the court and the country have been high for years due to the UK's lack of agreement with some of the court's rulings. In 2005 the court found that British prisoners should be given the right to vote [JURIST report]. The ECHR and the UK have also clashed over the issue of extradition of terror suspects. In February 2011 the UK government's independent reviewer of terror laws published a report [JURIST report] saying that rulings from the ECHR made it difficult to remove foreign terror suspects from Britain. The ECHR refused to grant the government's request that a terror suspect be required to show that it is more likely than not that he would be subject to ill-treatment. The ruling lowered the suspect's burden of proving that he would be faced with ill-treatment upon returning to his home country. In July 2008, the ECHR stayed the extradition of four terrorism suspects [JURIST report] from the UK to the US, holding that potential punishment could violate Convention's provisions on the prohibition of torture and inhumane or degrading treatment.

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Virginia senate approves bill requiring ultrasound before abortion
Jerry Votava on February 29, 2012 8:44 AM ET

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[JURIST] The Virginia Senate [official website] approved a bill [text] on Tuesday that would require a woman seeking an abortion [JURIST news archive] to have an ultrasound before the procedure. The bill was passed [JURIST report] by the Virginia House of Delegates [official website], and is a scaled-back version of a similar bill [text] that was passed [JURIST report] earlier this month. The current version of the bill removes the requirement for a transvaginal ultrasound to be performed, but continues to require a traditional transabdominal ultrasound. The bill retains the requirement that the women be provided with information regarding the gestational age and physical development of the fetus. In addition to altering the ultrasound requirements, the updated legislation redacts the portion of the previous version that would have required the medical professional to give the woman the option of listening to the fetal heart tone. The contentious bill was narrowly approved [results] by a margin of 21 to 19, with the vote split relatively along party lines.

Virignia is not the first state to pass such legislation, and similar rules have drawn various results when challenged in the court system. Last month the US Court of Appeals for the Fifth Circuit [official website] lifted an injunction [JURIST report] on a Texas law [JURIST report] that requires women to have a sonogram before undergoing an abortion, allowing the law to be enforced. In October, a judge for the US District Court for the Middle District of North Carolina [official website] issued a preliminary injunction [JURIST report], blocking part of the state's abortion law that required a physician to perform an ultrasound and describe the images to the patient. In March 2010 the Supreme Court of Oklahoma [official website] ruled [JURIST report] that a state law [SB 1878, DOC] imposing broad restrictions on abortion, including the requirement of an ultrasound prior to the procedure, violated that state's constitution.

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

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