[JURIST] The US DC Circuit Court of Appeals Tuesday directed that US District Judge Royce Lamberth [official profile], the outspoken jurist presiding over the 10-year old Indian Trust case [Cobell v. Norton litigation website] involving the alleged mismanagement of American Indian money [DOI Indian Trust Fund website] by the US Department of the Interior [official website], be removed from the proceeding. A three-judge panel agreed with US Department of Justice lawyers who had argued [JURIST report] in April that in a July 12, 2005 ruling [JURIST report] and a string of orders against the Interior Department Lamberth had compromised his status as an "impartial arbiter."

In the July ruling [PDF], Lamberth had, among other things, called the Department "a dinosaur - the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the last pathetic outpost of the indifference and Anglocentrism we thought we had left behind." The Court of Appeals wrote [PDF]:

From all of this evidence, “an objective observer is left with the overall impression,” Microsoft I, 56 F.3d at 1463, that the district court’s professed hostility to Interior has become “so extreme as to display clear inability to render fair judgment,” Liteky, 510 U.S. at 551. What distinguishes this case from one in which a judge has merely become “exceedingly ill disposed towards [a party which] has been shown to be . . . thoroughly reprehensible,” id. at 550-51, is, most certainly, not any redeeming aspect of Interior’s behavior as trustee. Rather, what distinguishes this case is the combination of the content of the July 12 opinion and the nature of the district court’s actions. Given these seemingly unique circumstances, and given that “justice must satisfy the appearance of justice,” Offutt v. United States, 348 U.S. 11, 14 (1954)—that is, reasonable observers must have confidence that judicial decisions flow from the impartial application of law to fact, not from a judge’s animosity toward a party—we conclude, reluctantly, that this is one of those rare cases in which reassignment is necessary.

[JURIST] The Entertainment Software Association (ESA) [official website] Tuesday asked a federal district court judge to block a Minnesota law [text] taking effect August 1 that imposes fines of up to $25 on minors who purchase games rated for adults and requires retailers to post notice of the fines. The ESA claims [press release] that although the law targets consumers rather than retailers, it violates the First Amendment [text] of the US Constitution. Minnesota legislators supporting the law contend that it is constitutional because it assesses civil fines instead of criminal penalties. In 2003, the US Court of Appeals for the Eighth Circuit [official website] declared that video games are protected under the First Amendment, but many lawyers believe the ruling could be overturned.

Judges have struck down similar laws as unconstitutional in Michigan, California and Illinois [JURIST reports]. In Louisiana, a federal judge has temporarily blocked the enforcement [JURIST report] of Louisiana's new law banning the sale of violent video games to minors. AP has more. The Star-Tribune has local coverage.

[JURIST] A lawyer for the US Department of Defense (DOD) told the Senate Judiciary Committee [official website] on Tuesday that US military treatment of detainees complies with Article 3 [text] of the Geneva Conventions [ICRC materials], even though the Bush administration had insisted until last week that detainees designated as enemy combatants were not entitled to Geneva protections. Responding to senators' questions, Daniel Dell'Orto, the Pentagon's principal deputy general counsel, said that detainees' treatment already meets or exceeds the Article 3 standard. Read Dell'Orto's prepared remarks. At the White House, press secretary Tony Snow also said that detainees have been treated humanely, while denying that last week's DOD memo [JURIST report] stating that Common Article 3 would apply to all detainees in military custody was a reversal of policy.

The Judiciary Committee hearing [committee materials] on military commissions [JURIST news archive] for detainees at Guantanamo Bay [JURIST news archive] follows the US Supreme Court's decision last month in Hamdan v. Rumsfeld [text], which held that the commissions as constituted by President Bush lack proper legal authorization [JURIST report]. Bush has said he would work with congressional leaders [JURIST report] on legislation that would allow military trials to go forward while addressing the concerns of the court. At Tuesday's hearing, Judiciary Committee Chairman Arlen Specter (R-PA) [official website] said Congress would not give the Pentagon a "blank check" to establish standards for detainee trials, while Sen. Patrick Leahy (D-VT) [official website] denounced "kangaroo court procedures." According to his prepared statement [text], Leahy said:

Military commissions should not be set up as a sham. They should be consistent with the high-standard of American military justice that has worked for decades. If they are to be United States military commissions, they should dispense just punishment fairly, not just be an easier way to punish.

[JURIST] A group of Sunni legislators known as the Iraqi Accordance Front [Aljazeera backgrounder] announced plans Tuesday to end their boycott of the Iraqi parliament [official website] after Shiite cleric Muqtada al-Sadr [CFR profile] called for unity. Members of the Front - the largest Sunni bloc, holding 44 of the 275 seats in the National Assembly - will return to legislative sessions on Wednesday, said their leader, Adnan al-Dulaimi. The bloc walked out of parliament [CBC report] earlier this month after one of its members, Tayseer al-Mashhadani, was kidnapped by captors who demanded the release of all Shiite detainees [JURIST report], as well as an end to attacks on Shiite mosques and a timetable for the withdrawal of foreign troops from Iraq [JURIST news archive].

Al-Mashhadani is still missing. Al-Sadr's militia has denied involvement in the kidnapping, despite the suspicions of many Sunnis. AP has more.

[JURIST] Defense lawyers argued that Croatian journalist Josip Jovic should not have been prosecuted for contempt as his trial began Tuesday at the International Criminal Tribunal for the Former Yugoslavia (ICTY) [official website; JURIST news archive] in The Hague. Jovic, editor of Slobodna Dalmacija [newspaper website, in Croatian], has pleaded not guilty [JURIST report] to contempt of court charges [indictment text] for violating an ICTY injunction against publishing the name of a protected witness in the Tihomir Blaskic case [ICTY case backgrounder]. While the prosecution described the contempt case as "egregious," Jovic's lawyers asserted that the witness - former Yugoslavian president and current Croatian President Stipe Mesic [official website, in Croatian; Wikipedia profile] - had already been identified in other media and should not have been allowed to testify anonymously because of his prominence as a political figure. Prosecutors responded that those mitigating factors could be considered at sentencing. If convicted, Jovic could receive to up to seven years in prison and be fined up to 100,000 euros (about $127,700 US).

The contempt trial was scheduled to begin on July 3, but it was postponed [ICTY press release] after Jovic failed to appear in court. ICTY chief prosecutor Carla Del Ponte [BBC profile], who must clear a massive caseload before her UN mandate expires in 2010, dropped contempt charges against three other journalists last month in the interests of "justice and judicial economy." AP has more.

[JURIST] The government of Italy [JURIST news archive] was not involved in and did not know in advance of the CIA's alleged extraordinary rendition [JURIST news archive] of an Egyptian cleric [JURIST report], an Italian defense official told legislators Tuesday. The official, Giovanni Lorenzo Forceri, told Italian Senate committees investigating the alleged kidnapping that Italy has never "accepted or practiced" such techniques of fighting terrorism and that its Military Intelligence and Security Service (SISMI) [official website; Wikipedia backgrounder] learned about the kidnapping only after it had occurred in 2003. The cleric, Osama Moustafa Hassan Nasr [Wikipedia profile], also known as Abu Omar, was allegedly taken from a Milan street and then flown to Egypt, where he was tortured. Silvio Berlusconi, then Italy's prime minister, called the alleged kidnapping a violation of Italy's sovereignty [JURIST report], and Forceri said Tuesday that current Prime Minister Romano Prodi [official profile; BBC profile] supports the investigation.

Last Wednesday, police arrested two Italian intelligence officers [JURIST report], including a senior official, suspected of collaborating with CIA operatives in the alleged rendition. Arrest warrants have been issued for 26 Americans, most of them CIA agents, said to have been involved in the abduction. The Italian justice department has said it would not seek their extradition [JURIST report], but they may be prosecuted in absentia [JURIST report]. AP has more.

[JURIST] A lawyer representing one of 17 Canadians arrested on terror charges [JURIST report] in June argued Monday in an Ontario court that Canada's anti-terror legislation [Canada DOJ backgrounder] discriminates because it focuses only on "brown" Muslim and Arab groups and excludes "white" groups such as the Ku Klux Klan [Wikipedia backgrounder]. Rocco Galati [Wikipedia profile] asked that the bail hearing for his client, Ahmad Ghany [Wikipedia backgrounder] be held in front of a Superior Court Justice instead of a justice of the peace because the justice of the peace cannot address issues arising under the Canadian Charter of Rights and Freedoms [text] issues. No decision was immediately made on Galati's request, however, because the court is also considering an application from media organizations to lift a media ban [JURIST report] on part of the proceedings.

In June, Galati asserted that the Canadian terror suspects do not stand a chance at a fair trial [JURIST report] because both Canadian Prime Minister Stephen Harper [statement; official website] and Toronto Mayor David Miller [official profile], as well as several Muslim leaders, had publicly declared that the suspects are guilty. The Toronto Sun has more.

[JURIST] President Bush again [JURIST report] urged the US Senate on Tuesday to pass legislation allowing him to use a line-item veto [JURIST news archive] to weed out what the White House has labeled wasteful spending. In White House remarks [transcript] on the Office of Management and Budget's Mid-Session Review [OMB fact sheet] for 2006, Bush called for the Senate to approve the line-item veto bill [text, PDF; summary, PDF] approved by the House [JURIST report] last month:

Under this proposal, the President can approve spending that's necessary; redline spending that's not; and send back the wasteful, unnecessary spending to the Congress for a prompt up or down vote. In other words, it's a collaborative effort between the two branches of government, all aimed at making sure we can earn the trust of the taxpayers.

Listen, the line-item veto works. Forty-three governors of both parties have this authority, and they use it effectively to help restrain spending in their state budgets. I've talked to some of these governors, used to be a governor. I know what I'm talking about when it comes to line-item veto being an effective tool. The line-item veto provides a lot of advantages, and one of them is it acts as a deterrent. See, when legislators think they can slip their individual items in a spending bill without notice, they do it.

[JURIST] The European Court of Justice [official website] Tuesday found former French prime minister Edith Cresson [BBC profile] breached the obligations of her office [press release, PDF] by indulging in favoritism and abuse of office when she served as a European Commissioner in the 1990s. The European Commission [official website] referred Cresson's case [JURIST report] to the court in 2004. The Court found that Cresson twice appointed a close friend as a visiting scientist because Commission rules barred him from serving as a member of Cresson's office based on his age. In his role as a visiting scientist, Rene Berthelot actually performed the functions of a personal advisor. In addition, Berthelot's two appointments as visiting scientist lasted over two years, while the Commission allows visiting scientists to serve for a maximum of one year. The full court ruled [opinion text] that:

Having regard to her personal involvement in that appointment, since it took place at her express request, after she had been informed that she could not recruit Mr Berthelot to her Cabinet, Mrs Cresson must be held responsible for that appointment and for the circumvention of the rules which it involved. She cannot extricate herself from her responsibility by taking refuge behind the authority to appoint granted by the administration since at no time did she express any concern that the responsible departments should observe the purpose of the applicable rules, even by questioning them on the matter or issuing recommendations to that effect.

Thus, in appointing a close acquaintance, Mr Berthelot, as a visiting scientist, when he was not going to be engaged in the activities associated with that position, in order to allow him to undertake the role of personal adviser in her Cabinet, even though the latter was fully-staffed and, moreover, Mr Berthelot had passed the permitted age-limit for performing that role, Mrs Cresson became liable for a breach of her obligations that is of a certain degree of gravity.

[JURIST] China has rejected a strongly worded UN Security Council official website] resolution [JURIST report] responding to North Korea's missile launches earlier this month, instead proposing a mild resolution to encourage North Korea [JURIST news archive] not to launch test-missiles. As with the tougher resolution, circulated by Japan on Friday, China's proposal would urge North Korea to stop developing missiles and return to a September 2005 joint agreement [statement] where North Korea "committed to abandoning all nuclear weapons and existing nuclear programs and returning, at an early date, to the Treaty on the Non-Proliferation of Nuclear Weapons and to IAEA safeguards." The draft resolution would also encourage North Korea to return to the six-party talks on the North Korea's nuclear program [GlobalSecurity.org backgrounder]. The Japanese resolution had the support of the United States, Britain and France, but Russia and China have steadfastly opposed the possibility of sanctions [AP report] against North Korea. The Security Council agreed on Monday to delay voting on the resolutions for several days pending a high-level Chinese delegation visit to North Korea.

The biggest difference between the Japanese and Chinese resolutions is that Japan referred to the missile tests as a threat to international peace and security under Chapter 7 [text] of the UN Charter [text], and would have included a binding provision directing states to take whatever steps necessary to prevent North Korea from obtaining materials that could be used in their missile program. Amid concern that the Security Council would not pass the Japanese resolution, Japan has begun considering whether the Japanese constitution [text] would permit a pre-emptive strike on North Korean missile bases [JURIST report] if there is no other option to prevent an attack from North Korea on Monday. CNS News has more. AFP has additional coverage.

[JURIST] A group of twenty retired military officers has submitted a letter [PDF text] to the US Senate Judiciary Committee [official website] expressing "deep concern" about the fitness of William Haynes II [official profile; resumé], the current Pentagon general counsel, to serve as a federal judge. The twenty officers, including former commander of US forces in the Middle East, Marine Gen. Joseph. Hoar [SourceWatch profile], and former chief of staff of Secretary for State Colin Powell, Army Col. Lawrence Wilkerson [official profile], believe that Haynes may not be suited for a federal judgeship because he approved coercive interrogation techniques for terror suspects. The letter adds concerns that Haynes "compromised military values, ignored federal and international law," and recommended that interrogators use dogs to scare detainees. Human Rights First [advocacy website] expressed similar concerns [press release; HRF materials] Monday about Haynes' character and fitness for the bench, and urged the Senate to closely examine Haynes' record and public statements.

President Bush nominated Haynes to serve on the US Court of Appeals for the Fourth Circuit [official website] in 2003, but Democrats in the last Congress blocked his nomination. Bush resubmitted Haynes' nomination [JURIST report] in 2004. The Senate Judiciary Committee will hold a nomination hearing [press release] for Haynes on Tuesday afternoon. Bloomberg has more.

[JURIST] Khieu Samphan [Wikipedia profile], the former head of state of Cambodia's Khmer Rouge [JURIST news archive] regime, left his home overnight and headed toward a neighboring province, just hours after prosecutors began compiling evidence [JURIST report] against former Khmer Rouge leaders. It is not clear whether he and his wife fled their home to avoid prosecution or whether the former leader simply left to visit friends. Prosecutors from the Khmer Rouge genocide tribunal [official task force website; timeline] began their formal investigation Monday of criminal acts allegedly committed by surviving leaders of the communist Khmer Rouge regime which ruled Cambodia from 1975-1978 and was responsible for the deaths of at least 1.5 million Cambodians by execution, forced hardships, or starvation in the so-called "Killing Fields." AP has more.

In a related development, potential witnesses in the upcoming genocide trials, which are expected to begin next year [JURIST report], have gone into hiding. Witnesses, both former prison guards that played a small role in the Khmer Rouge regime and victims of the regime, fear they will not have adequate protections if they testify before the genocide tribunal. Top genocide researcher Youk Chhang, head of the Documentation Center of Cambodia [advocacy website], believes that two missing prison guards that worked at Tuol Sleng [Wikipedia backgrounder], the Khmer Rouge's main torture center, have gone into hiding for fear that their testimony may open themselves up to prosecution. AFP has more.

[JURIST] Colorado state lawmakers passed a bill [HB 06S-1023 text, PDF] Monday that will force residents receiving state or federal benefits to prove their citizenship in order to continue receiving aid, in what some are calling one of the toughest illegal immigration measures in the country. The legislation will deny non-emergency state benefits to approximately 50,000 illegal immigrants currently receiving aid, out of an estimated 250,000 illegal immigrants in the state. The deal reached between Democratic lawmakers and Republican Gov. Bill Owens [official website] will force one million people to prove their Colorado residency before they can collect taxpayer-funded benefits. Also on Monday, Owens agreed to sign a bill [HB 06S-1017 text, PDF] that will require employers to verify the legal status of their employees. Owens wanted a stricter version of both bills [press release], but later agreed to a compromise.

The Colorado measures come amid US Congress negotiations on comprehensive immigration reform [JURIST news archive]. President Bush has urged lawmakers to find a compromise [JURIST report] between the Senate version [S 2611 summary; JURIST report], which includes a pathway to citizenship favored by Bush, and the House bill [HR 4437 summary; JURIST report], which focuses on law enforcement. AP has more. The Denver Post has local coverage.

[JURIST] Judge Raouf Abdel-Rahman [BBC profile], presiding over the Saddam Hussein trial [JURIST news archive], on Tuesday adjourned the trial until July 24 in a bid to give Hussein and his lawyers time to return from a boycott of proceedings. Hussein, along with several co-defendants and defense lawyers, on Monday boycotted trial proceedings [JURIST report] at the Iraq High Tribunal as other members of the defense team began closing arguments. Closing arguments continued Tuesday with two more defendants giving their statements. Abdel-Rahman then adjourned the trial, saying that proceedings will resume in two weeks, even if the boycotting lawyers fail to show up. Though Abdel-Rahman said it would hurt the case, court appointed lawyers will present closing arguments for the remaining defendants if necessary.

Defense lawyers for Barzan al-Tikriti, Taha Yassin Ramadan and Awad al-Bander have decided to boycott closing arguments until the court meets a list of demands, including greater security measures for the lawyers and their families. Monday's proceedings were the first since a third defense lawyer was murdered last month [JURIST report], just days after the prosecution presented closing arguments, calling for the death penalty [JURIST reports] for Hussein and three other defendants. AP has more.

[JURIST] Russia's Federal Security Service (FSB) [official website, in Russian] killed the self-confessed mastermind [press release] of the 2004 Beslan school siege [BBC backgrounder; JURIST news archive] along with 12 other militants in an early morning special operation Monday, according to Nikolai Patrushev [MosNews profile], head of the FSB. Russian President Vladimir Putin [official website, English version] expressed relief that security forces killed Shamil Basayev [BBC profile], who was also responsible for a 1995 hostage crisis in Budyonnovsk [Wikipedia backgrounder].

In May, a Russian court sentenced the only surviving Beslan hostage-taker, Nurpashi Kulayev [Wikipedia profile], to life in prison after convicting him on terrorism and murder charges [JURIST reports]. Kulayev's appeal, and an appeal by a group of Beslan survivors [JURIST reports] are both pending.

Some 1,300 people, most of them children, were taken hostage in a school building in Beslan, North Ossetia, in September 2004 by militants demanding that Russian soldiers leave Chechnya. Many hostages died when the school roof collapsed in flames during a rescue effort. All told, 330 people were killed and another 783 were wounded. The Guardian has more. MosNews has local coverage.

[JURIST] The US military has decided to apply the Geneva Conventions [ICRC materials] to all detainees held in US military custody around the world, according to Tuesday's Financial Times. The move marks a sharp reversal from a previous policy classifying detainees as "enemy combatants" outside the protections of Article 3 [text] of the Geneva Conventions. The provision, often called Common Article 3 as it is common to all four Geneva Conventions, prohibits torture and other inhumane treatment and mandates basic legal rights - "all the judicial guarantees which are recognized as indispensable by civilized peoples" - at trial before a "regularly constituted court." Deputy Secretary of Defense Gordon England [official profile] reportedly told senior military officials in a memo on Friday that Common Article 3 would apply to all detainees in military custody. Gordon's memo follows last month's US Supreme Court ruling in Hamdan v. Rumsfeld [text], where the Court struck down [JURIST report] military commissions as currently constituted for Guantanamo Bay [JURIST news archives] detainees, ruling that commission structures and procedures violate both the Geneva Conventions and the Uniform Code of Military Justice [text]. The Court also rejected the government's argument that Hamdan, a Guantanamo Bay detainee, was not entitled to Geneva Convention protections because he was not part of a uniformed enemy, ruling instead that the Geneva Conventions apply to the war on terror [JURIST op-ed].

Though the new Pentagon policy applies to all detainees held in military custody, it will not apply to any prisoners outside of the military detention system, including any prisoners held in alleged secret CIA prisons [COE materials; JURIST report]. The Financial Times has more.

10:19 AM ET - White House Press Secretary Tony Snow confirmed Tuesday morning that Common Article 3 will be applied to all detainees held in military custody, but refuted the characterization that England's memo reflects a reversal of policy. Snow said that Defense Department manuals already require that detainees be treated humanely. AP has more.

12:16 PM ET - In the July 7 memo, England wrote:

The Supreme Court has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.

It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 and, therefore, actions by DoD personnel that comply with such issuances would comply with the standards of Common Article 3. ... In addition, you will recall the President's prior directive that "the United States Armed Forces shall continue to treat detainees humanely," humane treatment being the overarching requirement of Common Article 3.

You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices, and procedures under your purview to ensure that they comply with the standards of Common Article 3.