[JURIST] A panel of the US Court of Appeals for the Fourth Circuit [official website] on Wednesday ruled [opinion, PDF] that the federal Employee Retirement Income Security Act (ERISA) [text] preempts the Maryland Fair Share Health Care Fund Act [text, PDF] requiring Wal-Mart to spend the equivalent of eight percent of each individual store's payroll on employee health insurance. In a 2-1 decision, the court upheld a district court ruling [JURIST report] and determined that the Maryland violates ERISA by not allowing Wal-Mart to create a uniform employee health benefit program nationwide. Judge Paul V. Niemeyer wrote:

Because Maryland's Fair Share Health Care Fund Act effectively requires employers in Maryland covered by the Act to restructure their employee health insurance plans, it conflicts with ERISA's goal of permitting uniform nationwide administration of these plans...The Maryland General Assembly, in furtherance of its effort to require Wal-Mart to spend more money on employee health benefits and thus reduce Wal-Mart's employees' reliance on Medicaid, enacted the Fair Share Act. Not disguised was Maryland's purpose to require Wal-Mart to change, at least in Maryland, its employee benefit plans and how they are administered. This goal, however, directly clashes with ERISA's preemption provision and ERISA's purpose of authorizing Wal-Mart and others like it to provide uniform health benefits to its employees on a nationwide basis.

[JURIST] Walter Forbes, former Chairman of Cendant Corp. [official website], the huge New York-based company that owns Ramada, Howard Johnson, Avis, Coldwell Banker and Century 21, was sentenced Wednesday to 12 years and seven months in prison pursuant to a October 2006 conviction [US DOJ press release] arising from a multi-billion dollar accounting fraud in the 1990s. Forbes was found guilty of conspiracy to commit securities fraud and two counts of making false statements in the corporate scandal which affected at least 119,000 employees and investors and which cost the company more than $3 billion. He was ordered to pay $3.275 billion [AP report] in restitution and to serve 12 years and 7 months in prison.

According to prosecutors, Forbes and co-defendant ex-Cendant Vice Chairman E. Kirk Shelton inflated the company's stock value by $500 million and after the fraud was discovered in 1998, the company's value dropped by more than $14 billion in less than 24 hours. Forbes denied that he was aware of the fraud and had asked for leniency based on his age and his community work over the years. Cendant recently changed its name to Avis Budget Group [corporate website]. AP has more.

[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website; JURIST news archive] announced Wednesday that three former Croatian generals will begin their war crimes trial at The Hague in May. Ante Gotovina [BBC profile], Ivan Cermak and Mladen Markac have all pleaded not guilty [JURIST report] to crimes against humanity and war crimes [indictment, PDF] in connection with the killing of Croatian Serb civilians during the Balkan wars in the 1990s, including failing to prevent the murder of 150 people in Krajina during the 1995 Operation Storm offensive [Wikipedia backgrounder] which forced some 90,000 other Serbs from their homes. In September, the government of Croatia asked the ICTY for friend-of-the-court status [JURIST report] to refute the indictments' "unacceptable allegations" about the military's activities in Operation Storm.

Gotovina's defense lawyer Gregory Kehoe had said he would not be prepared for trial until at least September, but ICTY judge Bakone Moloto disregarded Kehoe's objections, citing an obligation to bring a "fair and expeditious" trial. Opening statements are scheduled to begin on May 7, and prosecutors expect the trial to last up to a year. AP has more.

[JURIST] European Commission [official website] investigators have again asked EU Competition Commissioner Neelie Kroes [official website] to formally charge computer chip maker Intel [corporate website] with antitrust violations, according to a Wall Street Journal report [subscription required] Wednesday. In October, investigators first announced that they had gathered enough evidence to prosecute Intel [JURIST report] on antitrust charges, and brought their information to Kroes, but an internal "devil's advocate" panel disapproved the suggested charges. Kroes must now decide whether to formally prosecute Intel in the six-year old investigation, or drop the case.

Consumer groups and rival chip maker Advanced Micro Designs (AMD) [corporate website] say consumers have fewer options because Intel has used coercive tactics to gain an edge on its competitors. Tactics include issuing rebates to PC makers in exchange for their use of Intel chips. In September, a US federal judge ruled [JURIST report] that AMD could not proceed with a major portion of its case accusing Intel of anticompetitive practices [JURIST report] outside the United States. Reuters has more.

[JURIST] The Bush Administration will from now on submit all domestic surveillance requests to the Foreign Intelligence Surveillance Court (FISC) [FJC backgrounder] for review and approval under the Foreign Intelligence Surveillance Act, according to a letter [PDF text; US DOJ background briefing transcript, DOC] sent Wednesday by US Attorney General Alberto Gonzales to members of the Senate Judiciary Committee.

The letter explained that the a member of FISC had authorized government surveillance of transmissions coming into or going outside of the country where one party was suspected of association with a terrorist organization:

On January 10, 2007, a Judge on the Foreign Intelligence Surveillance Court issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization. As a result of these orders, any electronic surveillance that was occurring as a result of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court.

[JURIST] A US military judge ruled Tuesday that 1st Lt. Ehren Watada [advocacy website; JURIST news archive], a US Army officer who refused deployment to Iraq [JURIST report] because he felt the war is 'unlawful,' cannot argue that point in his upcoming court-martial. Lt. Col. John Head further ruled that Watada may not raise a free speech defense, as soldiers do not enjoy the same constitutional rights as civilians. Watada was charged [charge sheet, PDF; JURIST report] in July with missing troop movement, contempt toward officials, and multiple specifications [JURIST report] of conduct unbecoming, before an investigating officer recommended [JURIST report] proceeding with only the missing troop movement and conduct unbecoming charges, for which he faces a maximum sentence of six years. His court-martial is scheduled for February 5.

Watada, a 28 year old from Honolulu, joined the Army in 2003 and has served in Korea. He refuses to be classified as a conscientious objector because he does not object to war in general, just to the "illegal" war in Iraq. He had offered to instead serve in Afghanistan, however the Army refused. Watada is the first commissioned officer in the US military to publicly refuse deployment to Iraq. His vocal protests and participation in rallies by Veterans for Peace [advocacy website] and Courage to Resist [advocacy website] led to the charges of conduct unbecoming an officer and the original charge of contempt toward officials. AP has more.

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [transcript, PDF] Wednesday in Smith v. Texas [Duke Law case backgrounder; merit briefs], 05-11304, where the court must decide whether the Texas Court of Criminal Appeals was correct to apply a "daunting standard of harm ('egregious harm')" in correcting the constitutional violation found by the Supreme Court in an earlier decision in the same case. LaRoyce Lathair Smith was sentenced to death when the trial judge refused to issue a special jury instruction allowing the jury to consider evidence of Smith's low IQ and special education class attendance to mitigate his sentence. In 2004, the Supreme Court reversed Smith's death sentence [JURIST report; Duke Law backgrounder] and remanded the case in a 2004 per curiam opinion [text, PDF] holding that the jury should have received the instruction. On remand, the Texas Court of Criminal Appeals held [decision text] that the trial judge's failure to issue the special jury instruction was harmless error not affecting the constitutionality of Smith's conviction. At least four justices seemed to agree with the "egregious harm' standard used by the Texas Court of Criminal Appeals to decide whether Smith had a fair trial, including Chief Justice John Roberts. AP has more.

The Court also heard oral arguments [transcript, PDF] in the consolidated cases of Abdul-Kabir v. Quarterman and Brewer v. Quarterman [Duke Law case backgrounder; merit briefs], where the Court considered jury instructions used in two Texas death penalty cases. The "special issue" instructions, not currently used in Texas courts, ask jurors to answer "yes" or "no" to two questions - whether a defendant killed "deliberately" and whether the defendant would likely pose a "continuing threat to society."

[JURIST] Former Iraqi Vice President Taha Yassin Ramadan [Trial Watch profile] will be sentenced to death at a hearing before the Iraqi High Tribunal [official website] now scheduled for January 25, according to a court spokesperson speaking to the press on Tuesday. Ramadan was convicted [JURIST report; BBC verdict summary] in November in connection with crimes against humanity committed in the town of Dujail in 1982. In the tribunal appeals chamber's December 26 decision upholding Saddam Hussein's death sentence [JURIST report], the court also ruled that a life sentence for Ramadan was too lenient and ordered the trial court to re-sentence him.

Two other co-defendants in the Saddam Hussein trial [JURIST news archive], former chief judge of Iraq's Hussein-era Revolutionary Court Awad Hamed al-Bandar [Wikipedia profile] and former Iraqi intelligence chief Barzan Ibrahim al Tikriti [GlobalSecurity profile; BBC profile] were executed [JURIST report] earlier this week. AP has more.

[JURIST] The US Supreme Court [official website; JURIST news archive] ruled Wednesday that an alien convicted for aiding and abetting a theft offense can be deported under the Immigration and Nationality Act (INA) [USCIS backgrounder]. In Gonzales v. Duenas-Alvarez [Duke Law case backgrounder], Luis Alexander Duenas-Alvarez, a legal permanent resident, pleaded guilty to the unlawful driving or taking of a vehicle in violation of California law - Cal. Veh. Code Ann. §10851(a) [text] - and the Department of Homeland Security took steps to remove him from the country under the INA, specifically under 8 USC §1101(a)(43)(G) [text]. The immigration judge hearing the case and the Board of Immigration Appeals dismissed Duenas-Alvarez's appeal, but the US Court of Appeals for the Ninth Circuit disagreed [opinion text] in light of its recent decision in Penuliar v. Ashcroft [PDF text], where the Ninth Circuit held that violating §10851(a) of the California Vehicle Code is not a theft offense under the INA.

The Supreme Court vacated the lower court decision, concluding that the Ninth Circuit "erred" in "holding that 'aiding and abetting' a theft is not itself a crime that falls within the generic definition of theft." Read the Court's opinion per Justice Breyer, along with a concurrence in part and dissent in part [text] per Justice Stevens. AP has more.

[JURIST] German Chancellor Angela Merkel [official website, in German; BBC profile] told the European Parliament [speech transcript, in German] at a session in Strasbourg Wednesday that EU member nations should ratify the European constitution [official website; JURIST news archive] before the next round of European Parliament elections [Wikipedia backgrounder] scheduled for June 2009, saying "failure would be a historic mistake." Merkel emphasized the advantages of the proposed constitution, including the clear demarcation of the powers of the Union and member states and efficient transnational government.

Merkel attended [press release] the Strasbourg meeting to present Germany's Presidency Work Programme [PDF text], the product of joint Germany, Portugal, and Slovenia efforts to coordinate the next eighteen months of European economic policy. Also speaking [transcript] at the Strasbourg parliamentary meeting, European Commission President Jose Manuel Barroso called on member states to sign the pending Berlin Declaration, which he described as a roadmap, "which should create the momentum to settle the institutional question."

Merkel promised to put the constitution back on the EU agenda [JURIST report] upon assuming the six-month Presidency on January 1, 2007. She announced her intent to set a timetable for constitutional ratification in October, though responses have been lukewarm [JURIST reports] in some quarters, especially from aspirants in the upcoming French presidential elections. Consideration of the charter has been on hold since it was rejected by voters in France and the Netherlands [JURIST reports] last year. AFP has more.

[JURIST] US Attorney General Alberto Gonzales [official profile] used the occasion of a Wednesday speech [transcript] to the conservative American Enterprise Institute [website] on the perils of judicial activism to suggest that judges are not the appropriate agents to rule on national security issues, and that they should otherwise exercise extreme caution when declaring executive and legislative action as unconstitutional. Gonzales said:

I do not believe the Framers ever intended for the Judicial Branch – the Supreme Court or the lower courts – to make policy. It is worth recalling Hamilton's famous words, again from Federalist 78: "The Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them." ...

Of course, if a law or an agency action is unconstitutional, then judges, consistent with their oaths of office, should not hesitate to strike it down or prohibit it. But courts should exercise extreme caution. Members of Congress and Executive Branch officials take an oath to uphold the Constitution just as judges do. Courts that rush to invoke the Constitution to strike down the actions of the other branches sell short the wisdom and the prerogatives of the legislature, the President, and the people. ...

A judge with life tenure who gives his own views on political and policy matters greater weight than the considered viewpoint of the elected representatives of the people, or who believes he alone knows what is the best policy, can make great mischief. The Framers understood this. Hamilton said, "It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature." ...

Activist judges – those who on a pretense substitute their own views for the will of the legislatures – can find some rationale to support any outcome they desire. They can find in legislative history some quote to support their viewpoint. They can find a footnote in an earlier decision, and extrapolate from that a new principle despite what the language of the law itself says. But in the end, distorting history or precedent to support a pre-determined outcome weakens the Judiciary, undermines the rule of law, and harms our democracy. ...

We want to determine whether he understands the inherent limits that make an unelected Judiciary inferior to Congress or the President in making policy judgments. That, for example, a judge will never be in the best position to know what is in the national security interests of our country. That a judge cannot hold hearings or conduct studies to understand all the possible implications of a policy decision.

[JURIST] Spain's National Court [official website] has reissued a warrant for the arrest of three US soldiers who killed Spanish Telecinco cameraman Jose Couso [Guardian report; advocacy website] in 2003 when their tank opened fire on a hotel in Baghdad. The warrant follows a December Supreme Court reversal [IFEX report] of a March 2006 ruling by a panel of three National Court judges revoking a previous warrant [CNN report] and holding that Spain did not have jurisdiction to try to the case. Former US Secretary of State Colin Powell [official profile] said shortly after the incident that the use of force was justified because the tank was being attacked from hostiles inside the hotel. The warrant lists Sgt. Shawn Gibson, Capt. Philip Wolford and Lt. Col. Philip de Camp as the three soldiers responsible for Couso's death. The US previously denied extradition of the soldiers, and is not now expected to allow the soldiers to be extradited to Spain.

The original warrant was issued [JURIST report] in October 2005 after a Spanish judge stated that US officials had failed to cooperate in an investigation into the incident [JURIST report] and did not respond to requests to question the soldiers [JURIST report]. AP has more.

[JURIST] US Defense Department Deputy Assistant Secretary for Detainee Affairs Charles "Cully" Stimson apologized Wednesday for remarks [JURIST report] he made last week criticizing lawyers at top US law firms for representing Guantanamo detainees pro bono. In a letter published in the Washington Post, Stimson wrote:

During a radio interview last week, I brought up the topic of pro bono work and habeas corpus representation of detainees in Guantanamo Bay, Cuba. Regrettably, my comments left the impression that I question the integrity of those engaged in the zealous defense of detainees in Guantanamo. I do not.

I believe firmly that a foundational principle of our legal system is that the system works best when both sides are represented by competent legal counsel. I support pro bono work, as I said in the interview. I was a criminal defense attorney in two of my three tours in the Navy Judge Advocate General's Corps. I zealously represented unpopular clients -- people charged with crimes that did not make them, or their attorneys, popular in the military. I believe that our justice system requires vigorous representation.

I apologize for what I said and to those lawyers and law firms who are representing clients at Guantanamo. I hope that my record of public service makes clear that those comments do not reflect my core beliefs.

[JURIST] President Bush Tuesday offered his strongest criticism yet [JURIST report] of the Iraqi government's handling of the execution of Saddam Hussein [JURIST news archive], saying in a PBS Newshour interview [transcript; recorded audio] with Jim Lehrer that it resembled a “revenge killing:”

I was disappointed and felt like they [the Iraqi government] fumbled the - particularly the Saddam Hussein - execution. It reinforced doubts in people's minds that the Maliki government and the unity government of Iraq is a serious government, and - which makes it harder for me to make the case to the American people that this is a government that does want to unify the country and move forward. The Saddam execution, however, was an important moment in some ways because it closed a terrible chapter and gives the unity government a chance to move forward...

[I]t looked like it was kind of a revenge killing. And it sent a mixed signal to the American people and the people around the world. And it just goes to show that this is a government that has still got some maturation to do.

[JURIST] Russian Prosecutor-General Yuri Chaika confirmed Tuesday that his office is preparing new money laundering and embezzlement charges [MBK press release] against former Yukos CEO Mikhail Khodorkovsky [advocacy website; JURIST news archive]. Lawyers for Khodorkovsky first said they expected new charges [JURIST report] last month, but Chaika's comments Tuesday are the first official confirmation of the new investigation. Reuters has more.

Khodorkovsky was convicted in May 2005 of tax evasion [JURIST report], and the Russian government effectively nationalized Yukos to pay off $33 billion in back taxes. Khodorkovsky's lawyers have insisted that legal actions against their client have been politically motivated.

[JURIST] A UN human rights expert has received permission from US officials to visit the United States to examine US practices when detaining terror suspects. Martin Scheinin [official profile], the Special Rapporteur on the promotion and protection of human rights while countering terrorism [official website], issued a statement on the upcoming visit Tuesday:

I look forward to having an open and constructive dialogue with the Government, the judiciary, lawyers, security and law enforcement personnel, non-government organizations, civil society and all other relevant actors in order to study and discuss US counter terrorism laws, policies and practices. I intend to examine, in depth, issues regarding the detention, arrest and trial of terrorist suspects and the rights of victims of terrorism or persons negatively impacted by counter terrorism measures. I also aim to identify effective measures of preventing and countering terrorism and to formulate pertinent conclusions and concrete recommendations with the objective of helping to ensure respect for human rights and fundamental freedoms in the fight against terrorism.