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Legal news from Tuesday, April 25, 2006 |
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UN Security Council imposes sanctions on individuals for Sudan abuses
Bernard Hibbitts on April 25, 2006 9:06 PM ET

[JURIST] The UN Security Council passed a resolution 12-0 Tuesday imposing sanctions on four individuals for acts or abuses committed in the troubled Darfur [JURIST news archive] region of Sudan and calling for the conclusion of a peace agreement for the area by the end of the month. China, the Russian Federation and Qatar all abstained from the vote on the measure sponsored [JURIST report] by United States, Britain and six other Council members, saying that the sanctions would disrupt the tenuous peace process.
Under Resolution 1672 [text], restrictions were placed on the assets and international travel of Major General Gaffar Mohamed Elhassan, Commander of the Western Military Region for the Sudanese Air Force; Adam Yacub Shant, Commander of the Sudanese Liberation Army rebel group; Gabril Abdul Kareem Badri, the Field Commander of another rebel group, the National Movement for Reform; and Sheikh Musa Hilal, the Paramount Chief of the Jalul Tribe in North Darfur. The latest resolution implements Resolution 1591 (2005) [text], adopted in March of last year, which allowed the Council to take action against those individuals...who impede the peace process, constitute a threat to stability in Darfur and the region, commit violations of international humanitarian or human rights law or other atrocities, violate the measures implemented by Member States in accordance with paragraphs 7 and 8 of resolution 1556 (2004) and paragraph 7 of this resolution as implemented by a state, or are responsible for offensive military overflights.... Reuters has more. The UN News Center has additional coverage.


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Supreme Court considers duress defense, federal question, death penalty cases
Jeannie Shawl on April 25, 2006 7:39 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday considered whether a criminal defendant must prove a duress defense by a preponderance of the evidence or, instead, if the government must prove absence of duress beyond a reasonable doubt. In Dixon v. United States [Duke Law case backgrounder; merit briefs], Dixon was charged with firearms offenses and at trial raised battered woman's syndrome [Wikipedia backgrounder] as a defense. The trial court instructed the jury that Dixon bore the burden of persuasion and the US Court of Appeals for the Fifth Circuit affirmed her conviction [opinion, PDF], ruling that duress is an affirmative defense. During arguments Tuesday, the justices noted that the 29 states who put the burden of persuasion on prosecutors have not experienced problems with that scheme. AP has more.
The Court also heard arguments in Empire HealthChoice Assurance v. McVeigh [Duke Law case backgrounder; merit briefs], where the Court will decide whether federal question jurisdiction exists over a suit by a federal government contractor to enforce, on behalf of the United States, a provision in a health benefits plan for federal employees that is part of a government contract established pursuant to the Federal Employees Health Benefits Act. The Second Circuit found no federal question jurisdiction [opinion, PDF] in the case, where Empire sued for reimbursement of insurance benefits paid under the Federal Employees Health Benefits Program [OPM materials].
Finally, the Court heard re-arguments [JURIST report] in Kansas v. Marsh [Duke Law case backgrounder; merit briefs], concerning whether a sentencing scheme is constitutional when it imposes the death penalty when jurors found mitigating and aggravating evidence to be equal, in order to allow Justice Alito to participate in consideration of the case. The Court first heard arguments in December [JURIST report], but were unable to reach a decision before Justice Sandra Day O'Connor retired from the bench. On re-argument, Alito asked several questions, but didn't give any indication of how he might vote. AP has more.


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House intelligence bill gives CIA, NSA more arrest, pension power to counter leaks
Jeannie Shawl on April 25, 2006 4:27 PM ET

[JURIST] The Intelligence Authorization Bill for Fiscal Year 2007 [HR 5020 summary], up for a vote in the US House this week, contains several provisions which would expand the authority [POGO letter] of the National Security Agency and Central Intelligence Agency [official websites] to crack down on unauthorized leaks of classified information. Sections 423 and 432 of the bill would authorize CIA and NSA security personnel to make warrantless arrests for "any felony" committed in their presence, even if the felony occurs off CIA or NSA premises. The expansion of arrest powers would overrule a 2005 opinion [PDF text] from the Maryland attorney general, which limits NSA police powers to NSA grounds plus 500 feet. The proposed legislation would also require the director of national intelligence to look into revoking the pensions of anyone found to have made unauthorized disclosures.
The proposals come amid Bush administration efforts to crack down on unauthorized leaks. Former vice-presidential chief of staff I. Lewis "Scooter" Libby [defense profile], though not charged with directly leaking information, is being prosecuted in connection with the leak [JURIST news archive] of former CIA operative Valerie Plame's identity. Just last week, a CIA employee was fired [JURIST report] for unauthorized disclosure of information, reportedly in connection with a Washington Post story alleging CIA secret prisons in Europe [JURIST report], though there has not been an official confirmation of the information leaked, and associates of the leaker have denied that she leaked the information. Siobhan Gorman of the Baltimore Sun has more.


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Bush takes legal steps to address gasoline price rise
Greg Sampson on April 25, 2006 4:14 PM ET

[JURIST] As part of a larger response to record high gasoline prices, President George W. Bush on Tuesday announced [official transcript] that the US Environmental Protection Agency [official website] would suspend certain rules governing the refining of gasoline. By avoiding additive requirements originally imposed to meet clean air requirements, the move will supposedly make it easier for gasoline producers to market their product, which in turn will bring down the overall cost at the pump. Some petrochemical experts have voiced concern over the move [Bloomberg report], however, arguing that the government should not change gasoline blending rules without a clear showing of what the effect of the change will be.
The President has also directed an investigation into possible gasoline price fixing. In a joint effort by the Federal Trade Commission (FTC) [official website], the US Department of Justice [official website], and the Department of Energy [official website], the federal government will look into whether oil companies took advantage of the record high price of crude oil to unfairly manipulate gasoline prices. The Justice Department has contacted Attorneys General in all 50 US states, asking for technical assistance and requesting that they conduct their own investigations into possible price fixing within their own states. AP has more.


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Abu Ghraib chief of interrogations to face military charges
Jeannie Shawl on April 25, 2006 3:39 PM ET

[JURIST] Lt. Col. Steven L. Jordan, who was in charge of the Joint Interrogation and Debriefing Center [backgrounder] at Iraq's Abu Ghraib prison [JURIST news archive] in 2003, will face charges in connection to the prison abuse scandal, a lawyer for Jordan said Tuesday. The lawyer, Samuel Spitzberg, said he had been informed that the US Army plans to charge Jordan with dereliction of duty, lying to investigators and conduct unbecoming an officer, but an Army spokesman said Tuesday that there has not been a final decision on the allegations against Jordan. Jordan, who was trained as a civil affairs officer and put in charge of the Abu Ghraib interrogation center when it was formed in September 2003, admitted to Maj. Gen. Antonio Taguba [Times profile], who investigated the Abu Ghraib abuses, that he was a poor choice to oversee interrogations [NYT report]. The Taguba report [PDF text] recommended that Jordan be relieved from duty and reprimanded for "failing to ensure that Soldiers under his direct control knew, understood, and followed the protections afforded to detainees in the Geneva Convention Relative to the Treatment of Prisoners of War" and "failing to properly supervise soldiers under his direct authority." In addition, the August 2004 Fay report [PDF text; JURIST report] recommended that Jordan and Col. Thomas Pappas [Wikipedia profile], Jordan's superior, be punished for their role in the abuse scandal. It was disclosed in January that Army investigators had recommended [LA Times report] Jordan be charged.
If charged, Jordan will be the highest-ranking Army officer to face criminal charges as a result of the abuse scandal. Several lower-ranking officers have been convicted in connection with the abuse investigation, but superior officers have so far only received other punishments, including reprimands, fines and being relieved of command. US Army Reserve Colonel Janis Karpinski, the former US commander of Abu Ghraib, was relieved of her command and demoted for dereliction of duty [JURIST reports] in 2005. The New York Times has more.


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Supreme Court rules in sovereign immunity, habeas time limit cases
Jeannie Shawl on April 25, 2006 10:17 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday handed down opinions in two cases, including Northern Insurance v. Chatham County [Duke Law case backgrounder], 04-1618, where the Court held that an entity that is not entitled to immunity under the Eleventh Amendment cannot assert "residual sovereign immunity" as a defense to an admiralty suit under common law. In the case, an insured's boat was destroyed by a drawbridge operated by Chatham County, Georgia, but when the insurance company sued for negligent maintenance of the bridge, the county government asserted immunity under the Eleventh Amendment. The US Court of Appeals for the Eleventh Circuit ruled [text] that the county was acting as an "arm of the state" and was entitled to sovereign immunity based on common law, but not under the Eleventh Amendment, but the Supreme Court overturned the lower court in a unanimous decision. Read the Court's opinion [text], written by Justice Thomas.
In the second case decided Tuesday, the Court held in Day v. McDonough [Duke Law case backgrounder], 04-1324, that a trial court has discretion to dismiss a habeas corpus petition as untimely under the Antiterrorism and Effective Death Penalty Act of 1996 [PDF text]. In the 5-4 decision, the Court upheld an Eleventh Circuit decision [PDF text] affirming the dismissal of a habeas petition that was filed after the one-year statute of limitations had expired. The district court dismissed the petition sua sponte without the state raising the statute of limitations as an affirmative defense. Read the Court's majority opinion [text], per Justice Ginsburg, along with dissent [text] from Justice Scalia, joined by Justices Breyer and Thomas, and a separate dissent [text] by Justice Stevens, who was joined in part by Justice Breyer. SCOTUSblog has more.


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Sixth Circuit refuses to rehear Ten Commandments courthouse display case
Krista-Ann Staley on April 25, 2006 9:23 AM ET

[JURIST] The US Court of Appeals for the Sixth Circuit [official website] has refused to conduct a full court rehearing [order, PDF] of a three-judge panel's ruling [JURIST report] that a Mercer County, Kentucky courthouse display containing the Ten Commandments is constitutional. In the decision [PDF text] last December, the judges distinguished the Mercer County display from displays ruled unconstitutional by the Supreme Court [JURIST report] last year based upon its history. The court cited the inclusion of other historical documents in the original Mercer County display as evidence that the display did not demonstrate a religious intent or purpose.
Five judges joined in a dissent [PDF text] from the decision not to rehear the case, arguing that the majority blatantly disregarded the county's religious intent and misconstrued the Supreme Court's decision: In short, the panel essentially ignored the Supreme Court's characterization of the content of the Mercer County display. The panel flouted the Supreme Court's charge that the reasonable observer not be "absentminded," and the panel viewed context as coterminous with legislative history. Compare Mercer County, 432 F.3d at 632 ("The objective observer has no recent history of religiously motivated governmental acts or resolutions to incorporate into the display.") with McCreary County, 125 S. Ct. 2737 ("The Counties' position just bucks common sense; reasonable observers have reasonable memories, and our precedents sensibly forbid an observer 'to turn a blind eye to the context in which [the] policy arose.'"). The panel read Mercer County's action of quickly and exactly copying its fellow counties' embattled and religiously motivated display out of the record. Rather, the panel held as a matter of law, ostensibly construing the evidence in the light most favorable to the nonmoving party, that the reasonable observer would perceive a predominantly secular purpose behind Mercer County's display. The Louisville Courier-Journal has more.


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International brief ~ Iran could face mandatory UN resolution on nuclear compliance
D. Wes Rist on April 25, 2006 9:00 AM ET

[JURIST] Leading Tuesday's international brief, Iran could be the target of a new UN Security Council [official website] resolution mandating compliance with an International Atomic Energy Agency [official website] order that Iran cease production of enriched uranium [BBC report]. US, UK, and French officials have reportedly met and agreed on a template for a binding resolution that would force Iran to cease production of nuclear materials. A previous UN resolution passed in connection with the same order was not worded to invoke Chapter 7 of the UN Charter [official text], which gives authority to the Security Council to mandate the compliance of a UN member in the name of international peace and security. Iranian President Mahmoud Ahmadinejad told reporters Monday that sanctions would hurt other nations more than Iran, and hinted again [JURIST report] that if the UN passed the resolution, Iran would consider withdrawing from the Nuclear Non-Proliferation Treaty [official text]. Aljazeera has local coverage. AFP has more.
In other international legal news ... - Spokesman for the US Mission to the UN Richard Grenell told reporters Monday evening that the US may call for a vote on the Sudan sanctions resolution [JURIST report] currently before the UN Security Council [official website] despite continued opposition to the measure by permanent members Russia and China. Both nations view the sanctions as risky, in light of current negotiations between Darfur rebels and Sudan being mediated by the African Union [official website]. Either China or Russia could block the resolution with a veto, due to their position as permanent members of the Security Council, but the call to vote on the resolution would force the representatives to actually use the veto, instead of merely threatening its use, as is usual in Security Council negotiations. JURIST's Paper Chase has continuing coverage of Darfur [JURIST news archive]. The Sudan Tribune has local coverage.
- A key state witness in the ongoing treason trial against Ugandan opposition leader Dr. Kizza Besigye [JURIST news archive] has admitted on cross-examination that he lied under oath while testifying for the state. George Abedo, a self-confessed murderer and rapist and acknowledged member of the Lord's Resistance Army [MIPT backgrounder], told the court during his Monday testimony for the state that he had been granted amnesty for his crimes. When asked on cross-examination to produce his letter of amnesty, however, Abedo could only produce a letter he had intended to send to the local government requesting amnesty. Upon questioning by the judge, Abedo admitted that he lied about his amnesty. The judge said he would rule on what actions would be taken by Abedo following the conclusion of the testimony. The admission creates concerns about the credibility of a star witness of the state and continues the trouble faced by Ugandan prosecutor's trying Besigye. Uganda's Daily Monitor has local coverage.
- The head of South Africa's National Prosecuting Authority [government website] has issued a denial of Monday's report that NPA Chief Executive Officer Marion Sparg and a significant number of other NPA officials faced charges of corruption and tender rigging [JURIST report] in an ongoing public probe into the department. Vusi Pikoli told reporters that no criminal charges were pending against any NPA employee, but did confirm that Sparg and other employees were facing an internal disciplinary hearing for "alleged poor administration in the NPA during the period 2001 to 2003". Vusi said that internal disciplinary matters are confidential and not open to press review. JURIST's Paper Chase has continuing coverage of South Africa [JURIST news archive]. South Africa's Mail & Guardian Online has local coverage.


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