[JURIST] Government prosecutors in the Zacarias Moussaoui sentencing trial [JURIST news archive] asked US District Judge Leonie Brinkema late Wednesday to reconsider her Tuesday order [PDF] prohibiting the government from presenting the aviation portion of its case, including witnesses, testimony, and exhibits. Brinkema barred the evidence after being informed [JURIST report] that a government attorney violated the judge's witness sequestration ruling [JURIST report] and coached witnesses from the Federal Aviation Administration by sharing information and partial transcripts from the government's argument in what Brinkema called in court "the most egregious violation of the court's rules on witnesses" she had seen "in all the years I've been on the bench."

In its motion for reconsideration, the government said that excluding the aviation component of its case was "patently disproportionate" to the prejudice suffered by the defendant in the witness coaching, was "unprecedented and overbroad", made it impossible for the government to present its theory of the case to the jury, and was "grossly punitive." Read the full text of the government motion [PDF]. Reuters has more.

[JURIST] Denmark's Director of Public Prosecutions [official website, in English] Henning Fode has decided not to press criminal charges against Jyllands-Posten [media website], the Danish newspaper that first published caricatures of the Prophet Muhammad [JURIST news archive] which last month set off worldwide protests amongst Muslims leading to multiple deaths, the burning of Danish embassy buildings, and boycotts of Danish goods. The top prosecutor upheld the earlier decision of a regional prosecutor who maintained the drawings were protected by freedom of speech laws and did not violate bans on racist and blasphemous speech. In a press release [PDF] on the full ruling [English version], Fode said:

I have today decided not to institute criminal proceedings in the case of Jyllands-Posten's article "The Face of Muhammed", which was published on 30 September 2005 and where complaints were filed against Jyllands-Posten for violation of Sections 140 and 266 b of the Danish Criminal Code. My decision is that there is no violation of the said rules of the Danish Criminal Code.

Although there is no basis for instituting criminal proceedings in this case, it should be noted that both provisions of the Danish Criminal Code contain a restriction of the freedom of expression. Section 140 of the Criminal Code protects religious feelings against mockery and scorn and Section 266 b protects groups of persons against scorn and degradation on account of their religion among other things. To the extent publicly made expressions fall within the scope of these rules there is, therefore, no free and unrestricted right to express opinions about religious subjects. It is thus not a correct description of existing law when the article in Jyllands-Posten states that it is incompatible with the right to freedom of expression to demand special consideration for religious feelings and one has to be ready to put up with “scorn, mockery and ridicule”. My decision in the matter cannot be appealed to a higher administrative authority. This follows from Section 99(3) of the Danish Administration of Justice Act.

[JURIST] Four former senior Kenyan government officials and a top businessman are to be charged with corruption for their roles in a $1 billion scam known as the Goldenberg affair [BBC report; Wikipedia backgrounder]. The graft charges will be the first laid by the administration of President Mwai Kibaki [official profile], who was elected to office in 2002 due largely to his promises to clean up widespread government corruption but had so far failed make any significant arrests. Last month, Kibaki’s current education and energy ministers both resigned [JURIST report] after being implicated, but not charged, in the Goldenberg case while serving in the previous regime.

The Goldenberg affair involved a bogus gold and diamond import/export business known as Goldenberg International which fleeced government funds - mostly composed of Western donations - under the not-so-watchful eye of former President Daniel arap Moi [official profile], whose 24 year regime has become a synonym in the country for fraud. Reuters has more.

[JURIST] The Federal Communications Commission [official website] on Wednesday proposed a record $3.6 million fine against CBS, its stations and affiliates for violating decency standards [FCC materials] by airing a graphic sex scene in the program "Without a Trace." The recommendation [FCC notice, PDF] comes as the FCC resolved over 300,000 complaints [press release, PDF] about close to 50 television programs on multiple networks aired between February 2002 and March 2005. Under the FCC proposal, dozens of stations and affiliates will be fined $32,500, the current maximum fine per indecency violation. The record fines were part of the first round of fines to be issued under current FCC Chairman Kevin Martin [official profile], who in the past has supported raising the maximum fine for indecency violations [JURIST news archive].

Also Wednesday, the FCC upheld its previously-proposed $550,000 fine against 20 CBS stations [JURIST report] for what it called the "broadcast of indecent material during the February 1, 2004 Super Bowl XXXVIII halftime show":

The Commission rejects CBS' claim that the pulling off a portion of Janet Jackson's bustier to reveal her breast is not indecent. The Commission also holds that CBS consciously and willfully failed to take actions to prevent the broadcast of the material, and that CBS is responsible for the halftime show.

[JURIST] Zimbabwe prosecutors have dropped charges against six men accused of a plot to assassinate President Robert Mugabe [BBC profile], according to lawyers involved in the case speaking Wednesday. Media reports originally indicated that eight men had been charged, but police said Wednesday the number was only seven, and that only one, a policeman and former Rhodesian soldier, remained in custody on a lesser charge. The six, all members of the opposition Movement for Democratic Change (MDC) [official website], were among a group arrested last week [JURIST report] after an arms cache was discovered at a house in Mutare which allegedly had ties to an organization called the Zimbabwe Freedom Movement (ZFM) [manifesto], a clandestine UK-based group which seeks the immediate and forceful overthrow of Mugabe's government. The MDC has repeatedly denied it has ties to ZFM and other insurgency efforts.

Political analysts viewed the plot allegations as a government attempt to silence growing discontent with Mugabe's regime. Reuters has more.

[JURIST] A panel of judges at the International Criminal Tribunal for the former Yugoslavia [official website; JURIST news archive] on Wednesday convicted [press release; ICTY judgment summary] former Bosnian Muslim General Enver Hadzihasanovic and former Brigadier Amir Kubura for their failure to check or punish war atrocities [ICTY case backgrounder] committed against Bosnian Croat and Serb civilians by troops under their command during the Bosnian war from 1992-1995 [JURIST news archive]. The Hague tribunal sentenced Hadzihasanovic to 5 years in jail and Kubura to 2 1/2 years. Although prosecutors urged the court to give 20 years to Hadzihasanovic and 10 years to Kubura for their war crimes, the tribunal elected shorter sentencing, which would take into account time already spent by the men in detention.

The court said that prosecutors had failed to fully persuade the court that the men had complete knowledge of the abuses and retained effective control over all perpetrators, who, in many cases, were non-Bosnian fighters. Reuters has more.

[JURIST] New York Attorney General Elliot Spitzer [official website] Wednesday launched a $250 million lawsuit [complaint, PDF] against H&R Block [corporate website], the largest tax preparation service in the US, for fraudulently coaxing its customers into a retirement account plan that lost them money. Spitzer said that money in the retirement accounts decreased over time because the low interest rate did not cover the fees associated with the account. The state began its probe of H&R Block in 2005 after being tipped off by an H&R block tax preparer. Spitzer claims that H&R Block opened more than 500,000 Express IRA [product backgrounder] accounts in the past four years, and 85% of customers who opened the accounts paid H&R Block more in fees than they earned in interest on their accounts. The lawsuit calls for H&R block to stop engaging in fraudulent practices, disgorge profits, and to pay damages, restitution, and civil penalties of no less than $250 million. Read Spitzer's press release on the suit; recorded audio [MP3] of part of his announcement is also available.

H&R Block Chairman and CEO Mark A. Ernst [official profile] defended [press release] the Express IRA product Wednesday, noting that "...of all the Express IRA accounts opened between 2001 and 2005, 78% have experienced positive net tax savings benefits and interest earnings." AP has more.

[JURIST] British police arrested five men on Wednesday for their suspected role in protests staged outside the Danish embassy in London on February 3 and 4 against the publication of Muhammad cartoons [JURIST news archive] that first appeared in a Danish newspaper in September 2005. The arrests follow weeks of investigation by a special law enforcement team set up by the London Metropolitan Police called Operation Laverda, which collected video, audio, photographs and other evidence of protestors. During the protests, demonstrators displayed placards threatening terrorist attacks like those on September 11th and July 7th, as well as the "massacre" of people who insult Islam.

The protests sparked substantial political response in Britain, including rebuke by the Muslim Council of Britain [official website], which called for the prosecution of the protesters, and a call [JURIST report] for the revival of a "glorifying terrorism" crime by UK Home Secretary Charles Clarke [official profile]. Police charged four of the suspects with incitement to murder, and held all five on charges of "using threatening words or written material to stir up racial hatred." On February 7, police arrested a protester [Local London report] who dressed as a suicide bomber at the demonstration. The Times has more.

[JURIST] A lawyer for Flight Lieutenant Malcolm Kendall-Smith, a medical officer in the UK's Royal Air Force [official website], argued in a pre-trial military hearing Wednesday that his client was entitled to say in a court-martial defense against five charges of failing to comply with an order [JURIST report] to serve in Iraq that the Iraq war was illegal. Kendall-Smith has maintained that his refusal to attend preliminary training and briefings stemmed from his beliefs that since no attack by Iraq on the UK or one of its allies was imminent, the war was legally impermissible and he could not be compelled to go.

Kendall-Smith's defense lawyer stressed that although Kendall-Smith would have taken a non-combatant role, serving as a doctor, he believed he would have been asked to supervise legally ambiguous situations such as prisoner interrogations. Prosecutors asserted that the legal questions surrounding the invasion of Iraq were irrelevant as the case should center only around the official orders given to Kendall-Smith. A ruling by a military judge advocate is expected before the scheduled beginning of Kendall-Smith's court-martial on April 6. Reuters has more. The Independent has local coverage.

[JURIST] AP is reporting that the UN General Assembly [official website] has approved a resolution [JURIST document] creating a new Human Rights Council by a 170-4 vote, despite US opposition. The new rights body will replace the widely criticized Commission on Human Rights [official website].

General Assembly President Jan Eliasson's proposal [JURIST report] reflected months of negotiations between UN member countries, but the US quickly rejected the proposal [JURIST report] and had hoped to block passage of the resolution [NYT report] unless additional amendments were made. AP has more.

3:11 PM - Joining the US in voting against the resolution were Israel, the Marshall Islands and Palau. Venezuela, Iran and Belarus abstained. Calling the vote "historic," UN Secretary General Kofi Annan said the new Human Rights Council:

gives the United Nations the chance – a much-needed chance – to make a new beginning in its work for human rights around the world. ... No country will be wholly satisfied with every paragraph in the resolution, but such is the nature of international negotiations. It preserves important strengths of the Commission on Human Rights, such as the system of special procedures and the participation of NGOs, while also setting forth important innovations to address the Commission's weaknesses. Taken as a whole, the resolution gives us a solid foundation, on which all who are truly committed to the cause of human rights must now build. I believe they will succeed in building a framework within which governments from all parts of the world can work together to promote human rights, more effectively than ever before.

The Secretary-General ... proposed that the Council elect its members by a two-thirds majority. This proposal is not included in the resolution before us today, and it should be. The higher hurdle for membership would have made it harder for countries that are not demonstrably committed to human rights to win seats on the Council. It would have helped to prevent the election of countries that only seek to undermine the new body from within.

The United States also proposed an exclusionary criteria to keep gross abusers of human rights off the Council. This proposal would have excluded Member States against which measures are in effect under Chapter VII of the UN Charter related to human rights abuses or acts of terrorism. We also expressed a willingness to consider alternatives to satisfy the need for a strong mechanism to exclude the worst human rights violators.

Sadly, these suggestions were not included in the new text. The resolution before us merely requires Member States to "take into account" a candidate's human rights record when voting. And the provision for the General Assembly to suspend an elected member of the Council requires a two-thirds vote, a standard higher than that for electing members.

Our position on the need for a strong, credible membership is one of principle...

We had a historic opportunity to create a primary human rights organ in the UN poised to help those most in need and offer a hand to governments to build what the Charter calls "fundamental freedoms." The Council that is created will be our legacy. We must not let the victims of human rights abuses throughout the world think that UN Member States were willing to settle for "good enough". We must not let history remember us as the architects of a Council that was a "compromise" and merely "the best we could do" rather than one that ensured doing "all we could do" to promote human rights.

Mr. President, absent stronger mechanisms for maintaining credible membership, the United States could not join consensus on this resolution. We did not have sufficient confidence in this text to be able to say that the HRC would be better than its predecessor.

[JURIST] The Federal Bureau of Investigation (FBI) [official website] monitored gatherings organized by the Thomas Merton Center for Peace and Justice [advocacy website], an anti-war activist organization based in Pittsburgh, according to documents [press release; ACLU backgrounder] released Tuesday by the American Civil Liberties Union (ACLU) [advocacy website]. The ACLU contends that the FBI based its investigation solely on the organization's political views, particularly its opposition to the war in Iraq. An FBI spokesperson responded to the claims, stating that the agency was "acting with all appropriate investigative authorities." In addition to the documents released by the ACLU on Tuesday, an FBI report also indicates that agents photographed members of the Thomas Merton Center during a November 2002 gathering, during which members handed out leaflets opposing the war in Iraq. The documents came from Freedom of Information Act (FOIA) [DOJ backgrounder] requests filed by the ACLU in twenty states on behalf of over 150 organizations and individuals. The Washington Post has more.

On the heels of the ACLU's announcement, the New York Civil Liberties Union (NYCLU) [advocacy website] on Tuesday announced [press release] that it filed a FOIA request [document, PDF] on behalf of itself and fourteen New York-based political and religious groups to determine whether the FBI is investigating them as well. The NYCLU also filed FOIA requests with the New York, Buffalo, Rochester, and Syracuse police departments. AP has more.

[JURIST] In an unpublicized 18-page document circulated last year by National Security Advisor Stephen Hadley [official profile], the Bush administration altered the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information [current text effective 12/29/05; prior version], making changes which could allow the federal government to use sexual orientation as a factor in denying clearances to applicants. Under the old version of the rule, "Sexual orientation or preference may not be used as a basis for or a disqualifying factor in determining a person's eligibility for a security clearance." The new rules remove this clause and instead mandate that "No adverse inference concerning the standards in the Guideline may be raised solely on the basis of the sexual orientation of the individual."

A spokesperson for the National Security Council [official website] said Tuesday that the new version of the rule was not intended to change the federal government's policy on sexual orientation, but that the disputed language was removed to bring the rule into compliance with a 1995 executive order [EO 12968 text] regarding access to classified information. The Human Rights Campaign [advocacy website] has sharply criticized [press release] the new version of the rule, saying that it opens the door to broader interpretation of the guidelines, which could lead to gays and lesbians being denied security clearances. AP has more.

[JURIST] The president of the International Criminal Tribunal for the Former Yugoslavia [official website] has directed the court's Trial Chamber to consider varying or lifting protective measures applied to certain materials in the case against former Yugoslav president Slobodan Milosevic in order to assist Dutch authorities and the Tribunal's own team investigating the circumstances of Milosevic's death. Tribunal President Judge Fausto Pocar said in his order [PDF] disclosed Wednesday that it was in the interests of the Tribunal and the public that investigators have at their disposal all of the relevant documents required for a thorough investigation into Slobodan Milosevic’s death.

In other late developments in the Milosevic matter, Russia's lower house of parliament, the Duma [official website] passed a resolution Wednesday calling for an independent international investigation into the circumstances of Milosevic's death and urging the ICTY's shutdown, saying its proceedings testified to a "a high degree of politicization and bias", and that the court was "useless." The Duma was an outspoken supporter of Milosevic during the NATO bombing campaign against Yugoslavia in the 1999 Kosovo conflict. Also Wednesday, Russian doctors who flew to The Hague to earlier this week to review the initial autopsy results on Milosevic [JURIST report] said they agreed that the cause of the death was a heart attack. AFP has more; RFE/RL has additional coverage of the Duma resolution.

Milosevic's body was flown back to Serbia on Wednesday, with burial now expected in his hometown of Pozarevac [Radio Netherlands report] on Saturday.

[JURIST] Saddam Hussein formally testified in his own defense for the first time Wednesday at his trial [JURIST news archive] in Iraq, calling the Iraqi High Criminal Court a "comedy" before the hearing was closed to the public. Chief Judge Ra'uf Rasheed Abdel-Rahman [BBC profile] closed the courtroom after Hussein called on Iraqis to put an end to sectarian violence and focus their efforts on attacking American troops. In a heated exchange, Abdel-Rahman told Hussein he was not allowed to give political speeches in the court, but Hussein continued to read from his prepared speech even after his microphone was turned off. Abdel-Rahman eventually ordered the session closed to the public, cut the video feed, and ordered all journalists out of the courtroom.

Hussein and his co-defendants face charges of murder, torture, forced expulsions and illegal imprisonment stemming from the 1982 massacre in Dujail [JURIST report]. Prosecutors are trying to show that Hussein's forces sought to punish the town's civilian population through hundreds of arrests and detentions. Before Hussein began his defense, his half-brother and former intelligence chief Barzan Ibrahim denied any involvement [AP report] in the Dujail crackdown, saying that he did not order any detentions of the Shiite villagers. Ibrahim also said that he has been poorly treated while in US custody and that his requests for medical tests have been ignored. The trial has now been adjourned until April 5. BBC News has more.

[JURIST] Acting Israeli Prime Minister Ehud Olmert [BBC profile] said Wednesday that Israel plans to put a group of Palestinian prisoners [backgrounder] on trial for the 2001 killing of an Israeli tourism minister. The men were seized after Israeli forces stormed a Palestinian prison [JURIST report; IDF press release] in the West Bank Tuesday. Olmert vowed that the men will be "indicted according to Israeli law and they will be punished as they deserve," but certain legal obstacles need to be overcome before that can happen. Israeli Justice Minister Tzipi Livni said Wednesday that legal authorities must determine if Ahmed Saadat [BBC profile], leader of the Popular Front for the Liberation of Palestine, can be retried.

The raid by Israeli forces came shortly after US and UK withdrew prison monitors [UK FCO statement] at the Jericho prison, citing security concerns. Olmert said that the raid was prompted by the Palestinian Authority's failure to provide adequate security at the prison. Haaretz has more.

[JURIST] More than 1,500 US federal judges have requested government-paid home security systems approved by Congress last year, Attorney General Alberto Gonzales said Tuesday. After a man broke into the home of District Judge Joan Humphrey Lefkow [official profile] and murdered her husband and mother [JURIST report] last March, the Judicial Conference of the United States [official website], the policymaking board for federal courts, urged Congress to provide additional security measures [JURIST report] for judges and their families. Gonzales said that three-fourths of the country's federal judges have said they want the home security system.

Also Tuesday, the Judicial Conference held its first meeting under the leadership of US Supreme Court Chief Justice John Roberts. Judges called for security officers in courthouse to receive better training [press release] and equipment and urged more rigorous screening of inmate mail. AP has more.

[JURIST] Almost 300 photographs and 19 videos showing abuse at Abu Ghraib prison [JURIST news archive] have been published by Salon.com [report and photo archive], in what Salon says is the entire archive of Army photographic materials related to abuse at the Iraqi prison. The photos published Tuesday date back to late 2003 and include a picture of a naked Iraqi prisoner with injuries allegedly caused by US military dogs. The web magazine said it obtained the archive of Army photos from "a military source who spent time at Abu Ghraib and who is familiar with the Army probe." An Army spokesman said the photos, most of which have been published previously, provide no new information about the abuse scandal at Abu Ghraib.

Previously unpublished images from Abu Ghraib caused humanitarian groups to condemn the acts of abuse [JURIST report] when they were shown on Australian television [JURIST report; program transcript] in February. The Pentagon has criticized the release of new pictures, saying they could increase the danger to American soldiers. AP has more.

[JURIST] The Italian lawyer for former Iraqi Deputy Prime Minister Tariq Aziz [BBC profile] has requested that Aziz be moved to Bakulev Heart Surgery Center in Moscow for heart treatment. Aziz is currently being held by US forces in Baghdad pending possible trial by the Iraqi High Criminal Court now trying Saddam Hussein and seven co-defendants. The request was sent to the Russian embassy in Rome to be passed on to Russian President Vladimir Putin [official website, English version]. Giovanni Di Stefano made reference to requests by the late Slobodan Milosevic [JURIST news archive] for release from the International Criminal Tribunal for the Former Yugoslavia [official website] to Moscow for the treatment of similar heart problems and told reporters "Now we are waiting for an answer... we hope we don’t see another death." Aziz's family [JURIST report] and legal team [JURIST report] have said for months that he is seriously ill.

Aziz was a prominent figure in Hussein's regime despite the fact he is not considered to have been part of Saddam's innermost circle [BBC report], which consisted mainly of members of the Tikriti clan. MosNews has more.

[JURIST] The Italian lawyer for former Iraqi Deputy Prime Minister Tariq Aziz [BBC profile] has requested that Aziz be moved to Bakulev Heart Surgery Center in Moscow for heart treatment. Aziz is currently being held by US forces in Baghdad pending possible trial by the Iraqi High Criminal Court now trying Saddam Hussein and seven co-defendants. The request was sent to the Russian embassy in Rome to be passed on to Russian President Vladimir Putin [official website, English version]. Giovanni Di Stefano made reference to requests by the late Slobodan Milosevic [JURIST news archive] for release from the International Criminal Tribunal for the Former Yugoslavia [official website] to Moscow for the treatment of similar heart problems and told reporters "Now we are waiting for an answer... we hope we don’t see another death." Aziz's family [JURIST report] and legal team [JURIST report] have said for months that he is seriously ill.

Aziz was a prominent figure in Hussein's regime despite the fact he is not considered to have been part of Saddam's innermost circle [BBC report], which consisted mainly of members of the Tikriti clan. MosNews has more.

[JURIST] A witness at the court-martial [JURIST report] of Abu Ghraib [JURIST news archive] dog handler Sgt. Michael J. Smith told a military jury Tuesday that he saw Smith using his black Belgian shepherd to terrify two teenage detainees in the area of the prison reserved for women and juveniles and later heard him claim that he and another canine team were competing to see if the detainees would soil themselves, although the witness later said in cross-examination that he thought that was a joke. The testimony was broadly consistent with statements made by Private Ivan L. "Chip" Frederick II, himself convicted [JURIST report] in 2004 of abusing Abu Ghraib detainees, at an Article 32 hearing in July when Frederick claimed [JURIST report] that Smith and the other dog-handler were competing to see who could frighten the most Iraqi detainees with their dogs when the animals bit and injured two prisoners.

Smith is facing 13 counts of maltreatment, assault, conspiracy to mistreat detainees and indecency that could amount to 29 1/2 years in prison. Prosecutors maintain that Smith and Sgt. Santos A. Cardona, the other dog handler whose trial begins May 22, were rogue military policemen. The defense insists that use of the dogs was authorized by superiors. AP has more.

[JURIST] UN officials from the Office of Administration of the Khmer Rouge Tribunal are urging the timely start of the genocide trial of aging Khmer Rouge [JURIST news archive] leaders, noting the weekend death of Slobodan Milosevic in the fifth year of his high-profile war crimes trial at The Hague. The communist Khmer Rouge were responsible for the deaths of approximately 1.7 million people by disease, forced labor, starvation, and execution during their 1975-1978 rule over Cambodia. Most of their former leaders are in their 70s, including Ieng Sary, the former foreign minister who was recently in the hospital for a heart condition [JURIST report], 'Brother Number Two' Nuon Chea, Deputy Prime Minister and Deputy Secretary of the Communist Party, and Ta Mok [Trial Watch Profile], the 78 year old military chief known as the Butcher. Duch [Trial Watch Profile], (real name, Kang Kek Ieu), the head of the Tuol Sleng interrogation and torture center, is younger at 59 years old. Both Ta Mok and Duch have been detained and charged with war crimes, genocide, and crimes against humanity.

Helen Jarvis, Chief of Public Affairs for the Extraordinary Chambers of Cambodia, emphasized that getting proceedings underway quickly was also important for "the victims and Cambodians who are waiting for justice". She made the comments at a ceremony to mark the signing of a logistical agreement on the operation of the Cambodian tribunal. Last week UN Secretary General Kofi Annan nominated 12 international legal experts [JURIST report] to serve with the court in various capacities. The Cambodian government is finalizing a similar list. The trial has been allocated a three-year budget of $56.3 million. Reuters has more.