[JURIST] The Australian Federal Police (AFP) [official website] plan to subject former Guantanamo Bay inmate David Hicks [JURIST news archive] to a control order [JURIST news archive] that would restrict his movements and communications as well as require him to check in with police once every year, according to Monday reports. Hicks said in May that he does not plan to challenge the legality of any control order [JURIST report] imposed after his release from prison in Australia. Australia's Anti-Terrorism Act (No.2) 2005 [ANS backgrounder] allows the "overt close monitoring of terrorist suspects who pose a risk to the community." ABC News has more.

Hicks was transferred to Australia [JURIST report] in May to serve the remainder of his nine-month prison sentence at a maximum security prison near his hometown of Adelaide, South Australia. He pleaded guilty to a charge of supporting terrorism [JURIST reports] before a US military commission in March after spending more than five years in US custody since being captured in Afghanistan.

[JURIST] US Homeland Security Secretary Michael Chertoff [official profile] Monday utilized his power under the Real ID Act [PDF text; JURIST news archive] to circumvent a federal district court decision handed down last week that on environmental grounds ordered the delay of fence construction along part of the Arizona-Mexico border. Judge Ellen Segal Huvelle [official profile] of the US District Court for the District of Columbia held that the federal government did not take into account the environmental impact [AP report] of that portion of the fence. Title I sec. 102 of the Real ID Act, as included in a 2005 emergency supplemental appropriations bill, provides "Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section." This is the third time Chertoff has invoked the waiver provision; in September 2005 he used it to waive provisions of the Endangered Species Act, the Migratory Bird Treaty Act, the National Environmental Policy Act, the Coastal Zone Management Act, the Clean Water Act, the Clean Air Act, and the National Historic Preservation Act applicable to construction of fencing through the Tijuana River National Estuarine Research Reserve near San Diego, and this January he used it to push fencing through the Barry M. Goldwater Air Force Range in Arizona [DW press release].

Huvelle had granted a temporary restraining order sought by two environmental advocacy groups to enjoin the Bureau of Land Management [official website] from building a 1.5 mile portion of the fence along the US-Mexico border over the San Pedro river until an appropriate environmental impact assessment had been completed, berating the government for beginning construction on the fence after taking only three weeks to assess its potential environmental impact. The San Pedro river, which flows across the Arizona-US border, is considered a National Conservation Area (NCA) [text] by the government. Huvelle noted in her ruling that the Homeland Security Department had legal authority to waive all environmental laws and build the fence despite the restraining order. AP has more.

[JURIST] UN High Commissioner for Human Rights Louise Arbour [official website] Monday chided the Canadian government for not doing enough to maintain Canada's reputation in the global community as an advocate for human rights [JURIST news archive]. Arbour, a former Canadian Supreme Court justice, said at a diversity conference in Ottawa that her country's longstanding commitment to the protection and advancement of rights worldwide has been slipping, especially after Canada's rejection of a new UN treaty [text] outlining the global human rights of approximately 370 million indigenous people and banning discrimination against them. The treaty text was approved by the UN General Assembly [JURIST report] last month despite additional opposition by the United States, Australia, and New Zealand. Canadian UN ambassador John McNee [official website] at the time expressed "significant concerns" [statement text] that the treaty contradicted provisions of the Canadian Charter of Rights and Freedoms [text] and did not provide adequate guidance on issues such as implementation.

In June, Amnesty International (AI) accused [JURIST report] the Conservative Party government of Canadian Prime Minister Stephen Harper [official website; JURIST news archive] of actively lobbying other states with questionable human rights records to oppose the UN declaration. Reuters has more.

[JURIST] The European Court of Human Rights (ECHR) [official website] Monday upheld [judgment, DOC; press release] a 1999 conviction of French author Mathieu Lindon for defamation. In his book "The Trial of Jean-Marie Le Pen," Lindon suggested that France's far-right National Front [party website, in French] leader Jean-Marie Le Pen [BBC profile] bore responsibility for two 1995 murders committed by supporters of his party. Le Pen and the National Front brought a defamation suit against Lindon in 1998, alleging he had committed public defamation against a private individual. The ECHR Monday rejected arguments by Lindon that the eventual defamation conviction against him, in which he was ordered to pay damages to Le Pen and the National Front, violated his freedom of expression.

In July 2006, Le Pen faced trial [JURIST report] in Paris for allegedly denying the brutality of the Nazi occupation of France during World War II. Under French anti-racism laws [text, in French; Wikipedia backgrounder], denying the Holocaust is a crime and carries charges for "complicity in contesting crimes against humanity and complicity in justifying war crimes." Le Pen surprised observers with his strong performance in the 2002 French presidential election [BBC backgrounder]. He ran again in 2007, but finished fourth. Bloomberg has more.

[JURIST] Myanmar agreed Monday to accept a visit by UN Special Rapporteur on Human Rights Paulo Sergio Pinheiro [official profile] ahead of Association of Southeast Asian Nations (ASEAN) [official website] summit meetings next month. Pinheiro has been blocked from visiting Myanmar since 2003. The announcement came as UN special envoy to Myanmar Ibrahim Gambari [official profile], continued his tour of the region after visiting the country [JURIST report] earlier this month. Gambari plans to return to Myanmar in November in order to continue efforts to encourage the country's military junta to move towards democratization and reconciliation.

The decision to allow Pinheiro to visit comes shortly after the government lifted a curfew [JURIST report] in the capital Yangon and ended a ban on assembly imposed during the junta's deadly crackdown on pro-democracy protests last month. Observers suggest that the move reflects the military's confidence that they have in fact quashed the country's largest pro-democracy uprising in two decades. The UN News Service has more.

[JURIST] The Canadian government Monday introduced a new security certificates bill [press release] in the House of Commons [official website] in response to a February Supreme Court decision [text] that gave it one year to re-write existing law or have that voided as unconstitutional. Security certificates [PSC backgrounder] allow the Canadian government to order the detention and deportation of foreign terrorist suspects in private hearings without the presence of suspects or their lawyers. The new bill would give detainees access to a UK-style special advocate [JURIST report] at private hearings empowered to review and challenge materials that detainees themselves could not see. Currently, five men are subject to security certificates and Hassan Almrei [Amnesty International profile], of Syria, alleged to be part of a "forgery ring" linked to al-Qaeda, is the only person held in formal custody; the others have been released under strict bail terms.

The Supreme Court of Canada [official website] ruled [text] in February that the government's use of security certificates to indefinitely detain and deport foreigners with suspected ties to terrorism violated the Canadian Charter of Rights and Freedoms [text; CDCH materials]. Three Arab Muslim men - Adil Charkaoui, Hassan Almrei and Mohamed Harkat [case summaries] - argued [JURIST report] before the high court in June 2006 that their indefinite detentions were unconstitutional. Suspected of membership in al Qaeda, the men were arrested on special security certificates authorized by the Immigration and Refugee Protection Act [text]. The Court said in its ruling that indefinite detentions under security certificates were permissible as long as evidence that detainees themselves could not see could be challenged; it said it would delay application of its judgment for one year in order to allow Parliament time to comply with its ruling. CBC News has more.

[JURIST] The US Federal Trade Commission (FTC) [official website] will not open a formal investigation into allegations that computer chip maker Intel offered unfair discounts to convince computer makers to buy its products over those made by rival Advanced Micro Devices (AMD) [corporate websites], according to the New York Times Monday, citing unnamed officials and lawyers involved in the matter. The FTC had been conducting an informal investigation into complaints made by AMD regarding Intel, but the decision not to launch a formal probe would have allowed the Commission to issue subpoenas and compel testimony.

The news comes as a blow to lawmakers and at least two of the five FTC commissioners who had pushed for a formal US inquiry into Intel's corporate behavior. In August, American Antitrust Institute [advocacy website] President Albert Foer wrote a letter [PDF text] to the FTC urging such an investigation. The letter came after the European Commission [official website] filed formal charges [Business Wire report] against Intel in July for violating European Union competition laws. Similar probes have been conducted by the Korean Fair Trade Commission and the Japan Fair Trade Commission [official websites]. Intel has insisted that it merely engaged in "pro-competition" which was "ultimately beneficial to consumers." Intel could face fines in both Europe and Korea for engaging in anti-competitive behavior. The New York Times has more.

[JURIST] Former Democratic Republic of the Congo (DRC) warlord Germain Katanga [Trial Watch profile; ICC materials] made an anticipated appearance [press release; JURIST report] in the International Criminal Court (ICC) [official website] at The Hague Monday. Katanga, only the second criminal defendant to appear before the tribunal so far, is accused of ordering fighters under his command to "wipe out" [ICC OTP press release] the northeast Congolese village of Bogoro in 2003, where hundreds of civilians were killed and women were forced into sexual slavery. Katanga is charged with three counts of crimes against humanity and six counts of war crimes for his role in the attack. Before the ICC Monday, Katanga alleged that he has been detained without charge since 2005, after being arrested for his possible role in the killing of nine United Nations workers [NY Times report]. AP has more.

Union of Patriotic Congolese militia leader Thomas Lubanga [Trial Watch backgrounder; JURIST news archive] became the first war crimes defendant to appear before the ICC after he was taken into ICC custody [JURIST reports] in March last year to face charges of widespread human rights abuses in eastern Congo’s Ituri district [HRW backgrounder]. Lubanga is also suspected of ordering the 2005 killing of the nine UN peacekeepers and of filling the ranks of his militia with child soldiers [BBC report]. The ICC is considering moving Lubanga's trial back to the DRC [JURIST report] to highlight it more for the country's citizens.

[JURIST] Russian prosecutors will push for a nine-year prison sentence for exiled business tycoon Boris Berezovsky [BBC profile; JURIST news archive] in connection with charges that he embezzled millions from the Russian national airline Aeroflot [corporate website], a lawyer appointed to Berezovsky's case said Monday. Berezovsky, who has been residing in the UK since 2001 as a political refugee and who has been tried in absentia since proceedings began in July [JURIST report], has denied the allegations and refused to use his lawyers to represent himself, calling the charges against politically motivated. Proceedings will resume later this month.

Berezovsky has faced a flurry of accusations by Russian authorities. After leaving Russia in 2001 because of his discord with Russian President Vladimir Putin [official website] for vocally opposing the war in Chechnya [BBC timeline], Berezovsky was granted asylum in Great Britain. Russian authorities have demanded that the UK extradite Berezovsky, who has been charged with plotting a coup [JURIST reports] against Putin. In July, Russian prosecutors brought fresh charges against the ousted businessman that in 1997 he took part in a $13 million scheme to embezzle credit funds from SBS-Agro Bank [EBRD profile], which he then owned, to purchase real estate in southern France. Berezovsky has denied those charges as well. RIA Novosti has more.

[JURIST] US Department of Justice (DOJ) lawyers argued [motion, PDF] in documents filed with the US Court of Appeals for the DC Circuit Friday that the court does not have jurisdiction to hear an appeal from the US Court of Military Commission Review (CMCR) [DOD materials] by Guantanamo detainee Omar Khadr [JURIST news archive]. The DOJ argued that under the Military Commissions Act of 2006 (MCA) [S 3930 materials] no civilian court can consider an appeal of a war crimes case until a military court has issued a final judgment on the case. The DOJ also pointed to the MCA's "court-stripping" provision, which prevents federal courts from hearing habeas challenges. Khadr US military lawyer Lt. Cmdr. William Kuebler criticized the move [press release, DOC], describing it as "an effort to hit the 'delete' button on language ... which gives the defense a coequal right to seek review of decisions by the Court of Military Commission Review." The Canadian Press has more. SCOTUSblog has additional coverage.

Khadr filed [JURIST report] his appeal with the US Court of Appeals for the DC Circuit earlier this month, challenging the CMCR decision to send Khadr's case back to a military tribunal. Before that, the CMCR refused to reconsider its September ruling [JURIST reports] that the charges against Khadr could be reinstated, after a military commission judge dropped the charges [JURIST report] in June. Col. Peter Brownback reasoned that the court had no jurisdiction because a Guantanamo Combatant Status Review Tribunal [DOD materials] had found that Khadr was an "enemy combatant," but not an "unlawful enemy combatant" under the Military Commissions Act of 2006 [PDF text]. The appeals court overturned Brownback's decision and directed him to hear evidence concerning, and ultimately decide, Khadr's "unlawful enemy combatant" status. Khadr was detained in Afghanistan in 2002 after allegedly throwing a grenade that killed one US soldier and wounded another while fighting with the Taliban.

[JURIST] A Dallas federal judge declared a mistrial Monday on nearly all 197 counts in a controversial case against the Islamic Holy Land Foundation [LOC archived website; ADL backgrounder] charity and five of its leaders. Judge A. Joe Fish took the step after three jurors insisted that the verdicts of acquittal [verdict for HLF chairman Mohammad El-Mazain, PDF] read by the court were incorrect. According to the jury forewoman, the three jurors had not raised any issue on the findings during deliberations, saying that the verdicts were unanimous. Fish sent the jury back for further discussion but declared a mistrial when the matter could not be resolved.

Once the largest Muslim charity in the United States, the Foundation was shut down in 2001 by federal prosecutors who accused it of financing international terrorism by supporting the Palestinian group Hamas [BBC backgrounder]. It and five of its leaders were subsequently charged [JURIST report] in 2004 on 42 counts of conspiracy, providing support to a foreign terrorist organization, conspiracy to deal in the property of a terrorist, dealing in the property of a specially designated terrorist, money laundering, conspiracy to impede an investigation by the IRS, and filing false tax returns. The defense said during closing arguments [JURIST report] at the trial in September that the charity's funds were used only to help Palestinians in need, while the prosecution argued the charity was in place only to funnel money used to support Hamas through Palestinian schools and charities. AP has more.

9:15 PM ET - In a statement late Monday the Council on American-Islamic Relations (CAIR), the largest Islamic civil liberties group in the US, called the declaration of a mistrial in the Holy Land Foundation case a "stunning defeat" for the prosecution [press release].

[JURIST] A Supreme Court of Pakistan [official website] justice said at a hearing Monday on the results of the recent presidential election ostensibly re-electing President Pervez Musharraf that the spectre of martial law continues "haunting" the country, despite efforts to move past the issue. Justice Khalil-ur-Rehman Ramday said that the court has been unable to forget official threats, although Justice Javed Iqbal insisted last week that such statements would not affect its pending decision [JURIST reports]. Aitzaz Ahsan, a lawyer for a retired judge who contested the presidential poll, argued that the Supreme Court should act decisively to rid the country of the threat with the appropriate ruling.

Pakistani Minister for Parliamentary Affairs Sher Afgan Niazi said last week that martial law might be declared if the Court ruled against Musharraf's re-election bid. Earlier this month, Musharraf won an overwhelming victory [JURIST report] in legislative elections for the presidency, according to unofficial results. The Supreme Court had previously ruled that the controversial ballot could proceed in the face of Musharraf's refusal to step down as Army chief, but it barred the Election Commission of Pakistan [official website] from officially declaring a winner until the high court ruled on whether Musharraf was in fact eligible to run under the circumstances. His current term expires November 15. PTI has more.

[JURIST] Reversing the US Supreme Court's abortion decision in Roe v. Wade [LII backgrounder; opinion text] would not prevent wealthy women from getting abortions, but would have a "devastating" effect on underprivileged females, Justice Ruth Bader Ginsburg [OYEZ profile] said in a Sunday speech at an Atlanta synagogue. Ginsburg said that upper- and middle-class women who can afford to travel will go to states allowing the procedure, while poor women will be blocked from doing so. Noting the recent conservative swing of the Court, Ginsburg indicated that should the issue come up, she will continue to hold in favor of the right to an abortion as established in Roe.

In April, the Supreme Court [official website; JURIST news archive] issued an order [PDF text; JURIST report] vacating a 2005 decision [PDF text] by the US Court of Appeals for the Eighth Circuit striking down Missouri's 1999 "partial-birth" abortion ban. Earlier that month, the Court held in Gonzales v. Carhart [Duke Law case backgrounder; JURIST report] that groups challenging the ban [JURIST news archive] had "not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman's right to abortion based on its overbreadth or lack of a health exception." The 5-4 decision marked the first time the Court has upheld a complete ban on an abortion procedure. AP has more. The Atlanta Journal-Constitution has local coverage.

[JURIST] Microsoft will take the necessary steps [EU press release] to comply with a 2004 European Commission (EC) [official website] antitrust ruling [text; EU materials] against it, the EC announced Monday. The software company has agreed to allow open source software developers to access and use interoperability information, reduce the royalties for a worldwide license, and make agreements between third party developers and Microsoft enforceable before the High Court in London. EC Competition Commissioner Neelie Kroes [official website] welcomed Microsoft's changes but noted that it is "regrettable that Microsoft has only complied after a considerable delay, two court decisions, and the imposition of daily penalty payments."

On September 17, the European Court of First Instance upheld [text] the European Commission's landmark ruling [JURIST report] against Microsoft's appeal [JURIST report] of the $613 million fine and order for Microsoft to share its communications code with competitors. The court agreed with the Commission that Microsoft had abused its monopoly power [JURIST report] in the computer market by trying to force consumers into buying Microsoft software, noting that selling media software with its Windows operating system damaged European competitors. Microsoft will not appeal the decision, a Microsoft spokesman told AFP Monday. AFP has more.

[JURIST] Russia will create an organization to track and monitor human rights abuses in Europe and the US, according to Anatoly Kucherena, a lawyer on Russia's new Public Chamber [official website, in Russian], an ombudsman-like body established two years ago at the urging of Russian President Vladimir Putin to analyze draft legislation and serve as a watchdog on federal and regional administrative authorities. Kucherena said Friday that the new organization would have its headquarters in either Brussels or Germany and would have Russian human rights activists prepare human rights reports on European nations and the US. The impetus behind the creation of the organization was reportedly the receipt of letters from Russian-speakers in Europe and the US complaining about rights violations there. Kucherena emphasized that the purpose of the human rights monitoring center would be to facilitate "an exchange of opinions" within the human rights community, not to get into a political confrontation with Western nations. Reuters has more.

For several years China has issued an annual counterblast [JURIST report] to the annual US country reports on human rights [official website] in an effort to turn the political tables on Washington in the face of its ongoing criticism of Beijing by highlighting rights-related problems in the United States itself.

[JURIST] UK Secretary of State for Justice and Lord Chancellor Jack Straw [official profile] favors televising proceedings of the UK Supreme Court, the Times reported Monday. The new top court, created by the Constitutional Reform Act of 2005 [text], is expected to open in October 2009 and would technically replace the judicial panel of the House of Lords [official website] as Britain's highest tribunal, with the 12 current law lords as the first Supreme Court justices. Straw's recommendation to allow television cameras is said to be supported by senior judges and could also lead the way to televising other appeal hearings. The proposal does not, however, extend to jury trials and is still contingent on having the full backing of the judiciary. Times has more.

American political leaders and judges are similarly struggling with the issue of whether to permit televising of US Supreme Court [JURIST news archive] proceedings. In March of last year the US Senate Judiciary Committee under the leadership of Sen. Arlen Specter (R-PA) [official websites] approved an amendment to 28 USC 45 that would have permitted Supreme Court proceedings to be televised [JURIST report], "unless the Court decides by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court." The bill failed to pass the Senate itself, however. Last Friday Justice Samuel Alito [JURIST news archive; OYEZ profile] became the latest high court member to publicly criticize [JURIST report] the possibility of televising the court's proceedings. All the other justices, including Chief Justice John Roberts [JURIST report] and Justices Anthony Kennedy, Clarence Thomas [JURIST reports], Stephen Breyer and David Souter have already spoken publicly against allowing cameras [AP report] in the Supreme Court.

[JURIST] Iranian Foreign Minister Manouchehr Mottaki [Iran MFA website] urged the International Court of Justice (ICJ) [official website] Monday to "take legal action" against 400 companies that allegedly supplied chemical weapons to Saddam Hussein [JURIST news archive] during the 1980-1988 Iraqi war with Iran [Wikipedia backgrounder]. Mottaki said that action against the companies involved in supplying chemical weapons to Hussein "will prevent expansion of such weapons." He was speaking to reporters at an international seminar on the Consequences of the Use of Chemical Weapons against Iran [seminar website] marking the tenth anniversary of the Chemical Weapons Convention (CWC) [UN materials].

It is unclear, however, what form an ICJ action could take in this instance as the court only deals in legal disputes between states submitted to it by them and requests for advisory opinions on legal questions referred to it by UN organs and specialized agencies. IRNA has more.

[JURIST] Taiwanese lawmaker Gao Jyh-peng of the ruling Democratic Progressive Party (DPP) [party website] led by beleaguered Taiwanese President Chen Shui-bian [official profile; BBC profile] was indicted Monday on graft charges. Prosecutors allege that Gao, a close acquaintance of Chen, accepted $15,300 worth of New Taiwan dollars to help a company rent state-owned land. Gao disclaimed any involvement in the scandal, and blamed the charges on an aide who was arrested earlier this year for his involvement in the same corruption scandal.

The indictment is the latest in a series of high-profile corruption cases that have dominated Taiwanese politics in recent months. Last month, Taiwanese prosecutors indicted Vice President Annette Lu [official profile] and two other leading members of the DPP on charges of corruption and forgery [JURIST report]. Former Taiwanese opposition party leader Ma Ying-jeou [personal website, in Chinese; Wikipedia profile] was acquitted [JURIST report] of corruption and accounting fraud charges by the Taipei District Court [official website, in Chinese] in August. In June, a high court affirmed the conviction [JURIST report] of Chen's son-in-law on insider trading charges. Chen's wife, Wu Shu-chen, was indicted [JURIST report] last year for embezzlement and falsifying documents. Prosecutors have indicated that they have enough evidence to also indict Chen, but Chen enjoys Article 52 [text] constitutional immunity from most criminal charges while he remains in office. AP has more.