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Legal news from Tuesday, October 30, 2007 |
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DOJ reaches settlement allowing telecom merger
James M Yoch Jr on October 30, 2007 8:39 PM ET

[JURIST] AT&T [corporate website] and the US Department of Justice [official website] reached a consent decree [press release] Tuesday under which the telecommunications giant agreed to sell assets in seven rural US markets in exchange for DOJ approval of AT&T's acquisition of Dobson Communications Corp. [corporate website] and the withdrawal of the DOJ's lawsuit seeking to block the merger. The DOJ required the sale of AT&T assets in seven markets in five states to prevent harm to competition because Dobson also dominated those cellular markets. The acquisition of Dobson for $13 per share was announced last June, and will increase AT&T's customer base by 1.7 million subscribers. It would, however, have opened the door for AT&T to increase prices and decrease the quality of customer service in the identified markets. According to DOJ Antitrust Division Chief Thomas O. Barnett [official profile]: "The required divestitures will preserve competition for residents in rural areas in Kentucky, Oklahoma, Missouri, Pennsylvania and Texas and ensure that these consumers continue to enjoy the benefits of competition, such as lower prices, and higher quality."
Although the DOJ has tentatively approved the merger contingent upon AT&T's divestiture of the seven rural markets, the transaction still requires the approval of the Federal Communications Commission (FCC) [official website]. The DOJ has said that its investigators and the FCC have cooperated in scrutinizing the AT&T-Dobson deal. To garner FCC approval, AT&T will be required to limit the amount of subsidization it receives from the Universal Service Fund [FCC backgrounder], which provides funding for increased access to telecommunications across the US, especially in low income, rural, insular, and high cost areas. In addition, the DOJ on Tuesday filed a complaint challenging the merger in the US District Court for the District of DC, which will be withdrawn if and when AT&T sells the assets, which includes divestiture of the rights to the Cellular One brand owned by Dobson. Dow Jones has more.


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Mukasey balks at calling waterboarding illegal in response to judiciary panel
Devin Montgomery on October 30, 2007 6:32 PM ET

[JURIST] US Attorney General nominee Michael Mukasey [WH profile; JURIST news archive] wrote in a letter [PDF text] to Democrats on the Senate Judiciary Committee Tuesday that he did not know if waterboarding [JURIST news archive] was illegal, and that it would be "irresponsible" of him to provide a legal opinion on any specific interrogation technique without an in depth analysis of relevant laws and more information about its use. In his letter, Mukasey said: I was asked at the hearing and in your letter questions about the hypothetical use of certain coercive interrogation techniques. As described in your letter, these techniques seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans. But hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical. As a judge, I tried to be objective in my decision-making and to put aside even strongly held personal beliefs when assessing a legal question because legal questions must be answered based solely on the actual facts, circumstances, and legal standards presented. A legal opinion based on hypothetical facts and circumstances may be of some limited academic appeal but has scant practical effect or value.
I have said repeatedly, and reiterate here, that no one, including a President, is above the law, and that I would leave office sooner than participate in a violation of law. If confirmed, any legal opinions I offer will reflect that I appreciate the need for the United States to remain a nation of laws and to set the highest standards. I will be mindful also of our shared obligation to ensure that our Nation has the tools it needs, within the law, to protect the American people. ...
I do know, however, that "waterboarding" cannot be used by the United States military because its use by the military would be a clear violation of the Detainee Treatment Act ("DTA"). That is because "waterboarding" and certain other coercive interrogation techniques are expressly prohibited by the Army Field Manual on Intelligence Interrogation, and Congress specifically legislated in the DTA that no person in the custody or control of the Department of Defense ("DOD") or held in a DOD facility may be subject to any interrogation techniques not authorized and listed in the Manual.
In the absence of legislation expressly banning certain interrogation techniques in all circumstances, one must consider whether a particular technique complies with relevant legal standards. Mukasey went on to summarize the analysis he would use to determine "whether coercive interrogation techniques, including 'waterboarding' as described in your letter, would constitute torture, cruel, inhuman or degrading treatment, or a violation of Common Article 3 of the Geneva Conventions."
Senate Judiciary Committee chairman Patrick Leahy (D-VT) released a statement [text] in response to Mukasey's letter late Tuesday, saying that he remained "very concerned that Judge Mukasey finds himself unable to state unequivocally that waterboarding is illegal and below the standards and values of the United States." Both Democrats and Republicans [JURIST reports] on the committee have urged Mukasey to take a position on waterboarding - a technique that replicates the effects of being drowned - in order to receive a favorable recommendation to the full Senate. AP has more.


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Bangladesh ex-home minister sentenced to 10 years for illegal weapons possession
Deirdre Jurand on October 30, 2007 6:21 PM ET

[JURIST] A Bangladesh special tribunal sentenced former state minister Lutfozzaman Babar to 10 years in jail Tuesday for illegal possession of firearms. Babar, who served as home minister until October 2006, was found guilty of illegally possessing two pistols, a revolver and ammunition. The court officially sentenced him to a total of 17 years, but he will serve his 10-year gun possession and seven-year ammunition possession sentences concurrently. Police forces found the weapons during raids of Babar's house in May after the government detained him on suspicion of corruption at the recommendation of the country's anti-corruption commission [governing statute, PDF]. Bangladeshi citizens can keep small firearms as long as they have permits, which Babar could not produce [AP report] for police. Babar pleaded not guilty and plans to appeal the judgment [AP report], according to his lawyer.
Babar's conviction comes on the same day that his political party, the Bangladesh Nationalist Party, forced former party leader and prime minister Khaleda Zia [UN profile] to step down [AFP report] while she is under investigation on charges of corruption. Both recent actions are part of a continuing anti-corruption crackdown [JURIST news archive] in Bangladesh. The government declared a state of emergency [JURIST report] in January and has since detained more than 150 prominent political and business leaders. BBC News has more. ZeeNews.com has local coverage.


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Myanmar releases six more political dissidents
Caitlin Price on October 30, 2007 4:23 PM ET

[JURIST] The military junta in Myanmar [JURIST news archive] has released six more dissidents held in the wake of a late summer crackdown against protesters and political opponents, the pro-democracy National League for Democracy (NLD) said Tuesday. Three members of the NLD, headed by the long-detained Aung San Suu Kyi [BBC profile; JURIST news archive], were among those released. Five of the prisoners were detained in September 27 raids on two monasteries, days after government soldiers fired shots into nonviolent crowds [JURIST reports] of protesters, resulting in at least 10 deaths. Prominent politician Win Naing, detained since September 25, was also among those freed. Earlier this week, the military government released 87 detainees [JURIST report], including over 50 NLD members.
The releases follow reports [JURIST report] last week that UN Special Rapporteur on the situation of hhuman rights in Myanmar Paulo Sergio Pinheiro [official profile] has been given permission to visit the country in November to investigate alleged human rights abuses [press release]. In August and September the Myanmar government detained an estimated 3,000 protesters [JURIST report] involved in anti-government demonstrations; dissident groups say that 200 people have been killed since the crackdown began. Reuters has more.


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Supreme Court hears child pornography, sentencing cases
Caitlin Price on October 30, 2007 3:13 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [transcript, PDF] Tuesday in United States v. Williams [LII case backgrounder; merit briefs], 06-694, to determine whether part of the federal anti-child abuse PROTECT Act of 2003 [PDF text] is unconstitutional for criminalizing speech protected by the First Amendment. Critics have challenged the law for creating criminal penalties for the advertisement or promotion of material that implies the existence of child pornography - even if there is no actual pornography. The US Court of Appeals for the Eleventh Circuit held [opinion, PDF] in April 2006 that "non-commercial, non-inciteful promotion of illegal child pornography, even if repugnant, is protected speech under the First Amendment." Solicitor General Paul Clement [official profile] defended the government's position before the Court and addressed concerns about limits on artistic expression, saying that mainstream movies depicting or referencing underage sex will not be affected by the law. AP has more.
The Court also heard oral arguments [transcript, PDF] Tuesday in Logan v. United States [Duke Law case backgrounder; merit briefs ], 06-6911, in which it will consider when repeat criminals can be treated as career criminals for sentencing purposes, when the previous convictions are for misdemeanor crimes. Under the Armed Career Criminal Act (ACCA) [44 USC 924 text], defendants may be subjected to longer sentences if the defendant has three prior convictions for violent felonies or serious drug offenses. Defendant James Logan argued that his three previous misdemeanor battery convictions should not count toward ACCA sentencing because he did not lose his civil rights. The US Court of Appeals for the Seventh Circuit [official website] held that the ACCA did apply.


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ICTY prosecutors appeal 'lenient' sentences in Vukovar massacre trial
James M Yoch Jr on October 30, 2007 12:01 PM ET

[JURIST] Prosecutors for the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Tuesday appealed the sentences [JURIST report] imposed on war crimes convicts Mile Mrksic and Veselin Sljivancanin [BBC profiles; ICTY case backgrounder], who were convicted in connection with the killings of over 200 Croatian prisoners of war near Vukovar [BBC backgrounder] in 1991. The tribunal found Mrksic guilty on three counts of war crimes [JURIST news archive] and sentenced him to 20 years in prison for his part in the massacre. Sljivancanin received a five-year sentence on aiding and abetting charges. The prosecutors appealed on the grounds that the sentences were grossly inadequate for the crimes committed by Mrksic and Sljivancanin considering the extreme suffering of the victims and the magnitude of the massacre. In addition, the prosecutors appealed the prisoners' acquittal on charges of crimes against humanity. Meanwhile, both Mrksic and Sljivancanin appealed the convictions, alleging that the evidence was insufficient to support the decisions against them.
ICTY Chief Prosecutor Carla Del Ponte [official profile] had expressed immediate disapproval of the verdicts for being too lenient. Croatian Prime Minister Ivo Sanader [official website] also criticized [JURIST report] the ICTY for the judgments, saying in a letter sent last month to UN Secretary-General Ban Ki-moon that the ICTY failed to act in a "balanced and impartial way" and calling for a review of the court's judgments. This month, Sanader addressed [press release] the UN General Assembly, calling for justice for the Vukovar massacre. In addition, Croatian President Stipe Mesic, known to be a supporter of the ICTY, said that his own confidence in the ICTY has been eroded. In December 2006, the Serbian Supreme Court ordered a retrial in the case of 14 former members of Serb militias who were originally convicted [JURIST reports] of war crimes for their roles in the Vukovar massacre. The Serbian judicial proceedings, which opened in March 2004 [JURIST report], have been seen as a test of Serbia's domestic war crimes process. AP has more.


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Cattle producers sue USDA to stop Canada cattle imports said to carry 'mad cow' risk
James M Yoch Jr on October 30, 2007 8:11 AM ET

[JURIST] Eleven plaintiffs, including the R-CALF United Stockgrowers of America (R-CALF) [trade association website] have sued [press release] the US Dept. of Agriculture (USDA) to prevent a rule change that would allow Canadian cattle over 30 months old and beef products from such cattle to be imported into the country starting Nov. 19. The lawsuit, filed in the US District Court for the District of South Dakota, alleges that cows older than 30 months place US cattle at increased risk for bovine spongiform encephalopathy (BSE) [USDA backgrounder, PDF], otherwise known as "mad cow" disease [CBC backgrounder]. The USDA has said that the rule change, commonly known as the Over Thirty Month (OTM) Rule, comports with fair trade practices and that slaughterhouse regulations and inspections will protect against the spread of BSE. However, a spokesman for R-CALF alleges that By USDA's own analysis, it is a virtual certainty that the OTM Rule will result in the importation of Canadian cattle infected with BSE, the meat from which will enter the US food supply, and that the OTM Rule also will result in the importation of billions of pounds of meat from OTM cattle slaughtered in Canada, which almost certainly include products from cattle infected with BSE. There also lies the possibility of contamination of U.S. cattle feed caused from the use of Canadian cattle products, like blood, in the manufacturing of cattle feed. The plaintiffs also claim that the rule change will impose severe economic hardship on the US cattle-producing industry because purchasers will be reluctant to buy cattle and beef products that may derive from Canada and contain BSE.
In July 2005, the US Court of Appeals for the Ninth Circuit ruled [opinion, PDF; JURIST report] that the USDA could lift the ban on Canadian cattle imposed in 2003 and that the move neither harmed the economic interests of the cattle producer plaintiffs nor increased the risk of BSE infection in the US. In June 2007, the Superior Court of Quebec ruled [JURIST report] that some 20,000 cattle breeders could proceed with a class action lawsuit [CTV report] against the federal government of Canada for its handling of BSE, alleging that Canada was negligent by allowing cattle infected with BSE to be imported from the UK, and subsequently failing to inform the public or the cattle industry. AP has more.


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UN rights expert urges US to prosecute or release Guantanamo prisoners
Jaime Jansen on October 30, 2007 7:52 AM ET

[JURIST] UN Special Rapporteur on human rights and counterterrorism Martin Scheinin [official website] called on the US in a report [DOC text] released Monday to quickly prosecute or release terror suspects detained at Guantanamo Bay [JURIST news archive] so that the US can close the detention center. Scheinin paid an official visit to the United States in May after receiving permission from US officials [JURIST report] to examine US detention practices, although he was not allowed to interview Guantanamo detainees in private. In Monday's report, an addendum to a larger report [DOC text; press release] to the UN General assembly on human rights and counter-terrorism efforts worldwide, Scheinin also recommended: - that legislative amendments be made to remove the denial of habeas corpus rights under the Military Commissions Act 2006 and the restrictions upon the ability of Guantánamo Bay detainees to seek full judicial review of their combatant status, with the authority of the reviewing court to order release...;
- that other States be willing to receive persons currently detained at Guantánamo Bay. The United States and the United Nations High Commissioner for Refugees should work together to establish a joint process by which detainees can be resettled in accordance with international law, including refugee law and the principle of non-refoulement...;
- that [military commissions] be disestablished. Wherever possible, ordinary civilian courts should be used to try terrorist suspects...;
- [that the United States] ensure that all its officials and agencies comply with international standards, including the article 7 of ICCPR, the Convention against Torture and, in the context of an armed conflict, common article 3 of the Geneva Conventions...;
- [that the US government] take transparent steps to ensure that the CIA practice of extraordinary rendition is discontinued and is not conducted in the future...;
- that all detainees are held in accordance with international human rights standards, including the requirement that all detainees be held in regularized facilities, that they be registered, that they be allowed contact with the outside world (lawyers, International Committee of the Red Cross, where applicable, and family), and that any form of detention is subject to accessible and effective court review, which entails the possibility of release...;
- [that the US government] restrict definitions of international terrorism, domestic terrorism and material support to terrorist organizations in a way that is precise and restricted to the type of conduct identified by the Security Council as conduct to be suppressed in the fight against terrorism...[and ensure] that it does not participate in the extrajudicial execution of any person, including terrorist suspects.
Last year, Scheinin said US officials have been stonewalling investigations [JURIST report] into allegations that the Central Intelligence Agency (CIA) flew terrorism suspects through Europe to countries where they could be tortured. He also expressed concern [JURIST report] that the US Military Commissions Act of 2006 (MCA) [text; JURIST news archive] would lead to lower worldwide standards regarding interrogation techniques and trial procedures for noncitizen detainees. AP has more.


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Chad charges French charity workers with attempted kidnapping of Darfur orphans
Jaime Jansen on October 30, 2007 7:03 AM ET

[JURIST] A judge in Chad has approved kidnapping charges against six French nationals after French charity Zoe's Arc [advocacy website, in French] tried to fly 103 children believed to be orphans [ZA backgrounder, in French] from the embattled Darfur region of Sudan [JURIST news archives] to France, Chadean officials said Tuesday. If found guilty the six accused could face up to 20 years in prison. Three French journalists and a seven-person Barcelona-based flight crew will also be charged with complicity in the alleged kidnapping. Zoe's Arc said it had arranged for French host families to care for the children. French authorities searched the headquarters of Zoe's Arc to see if the charity broke any French adoption laws because the charity had allegedly told some of the host families they would eventually be able to adopt the orphans.
UN children's agency UNICEF [advocacy website] is investigating whether the children, who were living as refugees in Chad [JURIST news archive], were actually orphans. Initial evidence indicates that many of the children were actually citizens of Chad, not refugees from Sudan. Chad President Idriss Deby Itno [AE profile, in French] promised to punish the suspects, calling the alleged attempted kidnapping "child trafficking" and suggesting that Zoe's Arc planned to sell the children to pedophiles or kill the children. The botched flyout occurred just before the European Union planned to deploy a 4,000 man peacekeeping force in Chad and the Central African Republic [BBC profile; JURIST news archive] to aid in the refugee crisis created by the Darfur conflict. While Deby has assured French President Nicolas Sarkozy that the scandal will not impact the incoming peacekeeping force, lawyers for Zoe's Arc have already accused Deby of making outrageous public comments about the alleged kidnapping to use as a "bargaining chip" with France in talks over the peacekeeping force. AP has more. AFP has additional coverage.


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