[JURIST] Malaysian opposition leader Anwar Ibrahim [BBC profile; JURIST news archive] was released on bail Thursday, one day after being arrested [JURIST report] by Malaysian authorities investigating sodomy allegations [JURIST report] made against him by a former aide. According to a statement [Anwar blog post] posted Thursday, Anwar was told that he would be released immediately after undergoing DNA testing, but was instead held overnight. In his statement, Anwar indicated that he has no confidence in the Malaysian criminal system, and doubted the credibility of DNA evidence, saying "My accuser is still under police protection, and as such, any fabrication is possible if they take my DNA." The Star reports that at a Thursday afternoon press conference, Anwar demanded a copy of the police report [The Star report] filed by his accuser, and questioned why neither he nor his lawyers had been provided with the report. AFP has more. The New Straits Times has local coverage.

Anwar has claimed that the sodomy allegations leveled against him are politically motivated, and filed a lawsuit against his accuser [JURIST report] in late June. Under Malaysian law, sodomy is punishable by 20 years in prison regardless of consent. Anwar was Malaysia's Deputy Prime Minister under former Prime Minister Mahathir bin Mohamad [BBC profile] until he was fired in 1998 following earlier sodomy charges of which he was initially convicted but later acquitted. He only recently reentered Malaysian politics following the expiration of a ten-year ban [JURIST report] against him for unrelated corruption charges. Earlier this month the Federal Court of Malaysia ruled he could challenge the constitutionality [JURIST report] of his original dismissal from office.

[JURIST] The California Supreme Court Wednesday rejected [conference actions list, PDF] without comment a challenge [petition, PDF] seeking to remove a November ballot initiative that would ban same-sex marriage in the state. The petition, filed by Equality California, the National Center for Lesbian Rights, Lambda Legal and the American Civil Liberties Union [advocacy websites], argued that the amendment would deprive same-sex couples of fundamental rights. If approved by voters, the California Marriage Protection Act [ballot materials, PDF; proposition website] would amend the state constitution [text] to read, "Only marriage between a man and a woman is valid or recognized in California." The ballot initiative comes in reaction to a May 15 California Supreme Court decision [opinion, PDF; JURIST report] overturning a ban on same-sex marriage in the state. The San Francisco Chronicle has more.

The approval of the ballot initiative came after the Attorneys General of ten states submitted a brief [JURIST report] to the Supreme Court of California [official website], asking it to stay its decision until after the November elections. They asserted that allowing same-sex marriages would cause citizens in their own states to become "marriage tourists" in California, and their own state courts would then face unfair, extensive, and burdensome litigation on whether to recognize the marriages. A conservative advocacy group filed a similar petition [JURIST report] requesting a stay until November. In May, the California Office of Vital Records [official website] issued a memorandum [JURIST report] setting June 17 as the start day for issuing marriage licenses to same-sex couples. The court's May 15 decision stemmed from San Francisco Mayor Gavin Newsom's 2004 decision to issue marriage licenses to 4,000 same-sex couples [JURIST report].

[JURIST] The US House of Representatives Wednesday approved by voice vote a ban prohibiting the Central Intelligence Agency (CIA) [official website] from allowing private contractors to interrogate detainees. The ban is part of a bill [HR 5959 materials] authorizing intelligence expenditures for the 2009 fiscal year. US President George W. Bush has threatened to veto the legislation, objecting to provisions that would require the administration to disclose certain national security information to Congress and to appoint an inspector general for each of the 16 US intelligence agencies. Reuters has more.

In May, the US Senate Select Committee on Intelligence [official website] approved [JURIST report] a similar measure intended to prevent intelligence agencies from holding "ghost detainees" [JURIST news archive], prisoners who are held in secret without record or communication. That bill also contains a provision that restricts CIA interrogators [JURIST report] to techniques included in the 2006 Army Field Manual on Human Intelligence Collector Operations [PDF text; press release]. In March, Bush vetoed [JURIST report] the Intelligence Authorization Act of 2008 [HR 2082 materials], which included a similar provision limiting CIA interrogators to interrogation techniques explicitly authorized by the 2006 Army Field Manual, and an attempt to override the veto failed [JURIST report].

[JURIST] A Swedish legal organization Monday filed a complaint [PDF text] with the European Court of Human Rights [official website], challenging a controversial warrantless wiretapping law [draft text, in Swedish] passed [JURIST report] by the Swedish parliament last month. The law gives Sweden's National Defence Radio Establishment [official website] broad authority to monitor international telephone and electronic communications passing through the country. The Centrum för Rättvisa (CFR) [advocacy website] argues that the law could violate the right to privacy enshrined in Article 8 of the European Convention on Human Rights [text], noting that the ECHR has recently struck down [ECHR judgment, PDF] a similar UK eavesdropping law.

The Swedish law, which had been initially rejected by parliament [JURIST report], passed by a narrow 143-138 margin after last-minute changes made by lawmakers. The changes included a provision for independent oversight of the program, but critics say the law still does not do enough to protect privacy interests. Opposition party members say the program could also be used to intercept domestic communications [press release, in Swedish], and the International Federation of Journalists argued it could compromise source anonymity [press release]. Millions of Swedish citizens have filed electronic petitions [sample petitions, in Swedish; JURIST report] against the law, which will take effect in January 2009.

[JURIST] The US Court of Appeals for the Armed Forces [official website] Tuesday ruled [PDF text] that racist comments made online by a US Army soldier were protected by the First Amendment to the US Constitution. The court confirmed that the free speech rights of military personnel were more limited than those of civilians because they had to be balanced against military policy and readiness, but found that statements made by Pfc. Jeremy T. Wilcox were not actionable because they did not interfere with his job performance or with any military mission:

There is no evidence that any of Appellant’s statements were directed at military members or ever reached his unit. And it is pure speculation that the racist views propounded on the Internet by a single person purporting to be a paratrooper either were viewed or would be viewed by other servicemembers or would be perceived by the public or a servicemember as an expression of Army or military policy.

[JURIST] A committee of the Italian House of Deputies [official website, in Italian] Wednesday approved funding for a national fingerprinting effort to begin in 2010. Italian leaders have pushed to require all Italian citizens and resident foreigners to be fingerprinted for national ID cards. The move is seen by some as an attempt to deflect accusations of "ethnic cataloguing" [EUobserver report] for efforts to fingerprint the country's Roma minority [JURIST news archive]. AP has more.

Despite intense criticism [JURIST report] by the international human rights community [COE statement] and Roma advocates [ERRC materials], the Italian government began carrying out the fingerprinting of Roma [JURIST report] earlier this month. That fingerprinting scheme, announced last month by Interior Minister Roberto Maroni [OECD profile], involves recording the fingerprints of thousands of Roma, including children, ostensibly to reduce street crime and begging. Vincenzo Spadafora, head of UNICEF in Italy [official website], had said UNICEF was "deeply concerned" by the proposal, commenting that "If this is being brought in to protect the rights of Roma children, Italian children should also be fingerprinted to protect them as well."

[JURIST] The UK officially completed its ratification of the EU reform treaty [JURIST news archive], formally known as the Treaty of Lisbon [official website; PDF text], by filing approval documents in Rome on Thursday. The Treaty was incorporated into British law by a bill [text; explanatory notes] that was passed by the House of Commons in March and the House of Lords [JURIST report] in June before receiving Royal Assent [government backgrounder] and surviving a court challenge [decision, PDF; JURIST report] seeking a national referendum [JURIST report] on the Treaty later that month. The Treaty will not take effect until all 27 EU member states approve the new rules, and its future has been uncertain since Ireland rejected the treaty [JURIST report] in a June referendum. AFP has more.

Several EU members, including Spain, Belgium and the Netherlands, have joined the UK in continuing the ratification process despite the rejection, while others, including Poland and Austria, have refused to move forward [JURIST reports] until after an October meeting designed to reconcile the future of the agreement. EU leaders signed the reform treaty [JURIST report] in December, and 14 countries had ratified the document [JURIST news archive] before the Irish rejection. In 2005, an earlier draft European constitution [JURIST news archive] also failed when voters in France and the Netherlands [JURIST reports] rejected the proposal in national referenda.

[JURIST] US President George W. Bush [official profile] invoked executive privilege Wednesday to prevent members of the House Committee on Oversight and Government Reform [official website] from obtaining an FBI report on an interview with Vice President Dick Cheney concerning the Valerie Plame CIA leak scandal [JURIST news archive]. The Committee had subpoenaed [JURIST report] Attorney General Michael Mukasey [official profile] in late June, attempting to gain access to the documents. The assertion of executive privilege by President Bush came in a letter [text, PDF] to Committee Chairman Rep. Henry Waxman (D-CA) [official website]. The letter to Rep. Waxman also contained a letter [text, PDF] from Mukasey to President Bush outlining the legal justification for invoking the privilege. In that letter, Mukasey wrote:

Much of the content of the subpoenaed documents falls squarely within the presidential communications and deliberative process components of executive privilege. Several of the subpoenaed interview reports summarize conversations between you and your advisors, which are direct presidential communications. Other portions of the documents fall within the scope of the presidential communications component of the privilege because they summarize deliberations among your most senior advisers in the course of preparing information or advice for presentation to you, including information related to the preparation of your 2003 State of the Union Address and possible responses to public assertions that the address contained an inaccurate statement. In addition, many of the documents summarize deliberations among senior White House officials about how to respond to media inquiries concerning the 2003 State of the Union Address and Ambassador Wilson's trip to Niger. Such internal deliberations among White House staff clearly fall within the scope of the deliberative process component of the privilege. As the Supreme Court explained, "human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process."

This unfounded assertion of executive privilege does not protect a principle; it protects a person. The President is wrong to shield Vice President Cheney from scrutiny. In our system of government, even the Vice President should be accountable for his action.

[JURIST] The International Criminal Tribunal for the Former Yugoslavia [official website] Thursday convicted [judgment summary; press release] former Yugoslav general Pavle Strugar [ICTY factsheet, PDF] on additional charges related to his role in the 1991 shelling of Dubrovnik [BBC report], the historic Croatian city that UNESCO has declared a World Cultural Heritage [UNESCO website] site. The Appeals Chamber found that the Trial Chamber had erred by finding Strugar not guilty on counts of devastation and unlawful attacks against civilians. It also reduced Strugar's sentence to seven and a half years’ imprisonment in consideration of his poor health. AP has more.

In 2005, the ICTY sentenced [ruling text; JURIST report] Strugar to eight years in prison for failing to prevent attacks by his soldiers on civilians and for damaging or destroying cultural institutions or artifacts during the Dubrovnik siege. Strugar, who commanded Yugoslav forces during the siege, was found guilty of violating Article 3 of the Statute of the Tribunal [text], which governs the laws of war. The Trial Chamber found him not guilty on four other counts, including murder, cruel treatment, devastation unjustified by military necessity, and unlawful attack on civilian objects. Both the Prosecution and the Defense appealed the trial judgment.

[JURIST] The French Senate on Wednesday passed a constitutional reform bill [text, in French; materials, in French] which is backed by French president Nicolas Sarkozy and which was designed to modernize the constitution [text] and redefine governmental powers. The subject text of the bill, which passed by a vote of 162-125 [roll call, in French], said that

The draft constitutional revision aims to improve control of the executive, to strengthen the powers of Parliament and to assign new rights to citizens.

[JURIST] The Indonesian Supreme Court Thursday rejected the third appeal [JURIST report] made by Mukhlas, Imam Samudra and Amrozi Nurhasyim [BBC profiles] of their convictions for the 2002 Bali nightclub bombings [BBC backgrounder]. Lawyers for the three said they had been denied an earlier opportunity to present expert testimony in their clients' defense, but the court dismissed the request for a new hearing, and said that it would not accept additional appeals. Under Indonesian law, the only remaining way for the three to avoid execution is to be granted a presidential pardon, but they have thus far refused to request one. The group plans to file a challenge to the country's use of the death penalty [AI backgrounder], but it is not clear whether officials will stay their execution for such a challenge. AFP has more. AP has additional coverage.


Mukhlas, Imam Samudra , and Amrozi are members of of the Southeast Asian terror group Jemaah Islamiyah (JI) [CFR backgrounder; JURIST news archive] and their first appeal was rejected late last year, prompting an unusual second appeal, which was later withdrawn [JURIST reports]. In May, Indonesian police arrested [JURIST report] another JI member, Faiz Fauzan, in connection with the 2005 Bali bombings [BBC report]. In March, an Indonesian judge handed down 15-year sentences [JURIST report] to two JI leaders, Zarkasih and Abu Dujana [BBC profiles], after convicting them on other terrorism charges.

[JURIST] A military judge has denied [ruling, PDF] a motion to dismiss by Guantanamo Bay detainee Salim Ahmed Hamdan [DOD materials; JURIST news archive], holding that the military commission assigned to his trial has the appropriate jurisdiction to hear the case. Hamdan's lawyers moved for dismissal of the charges [motions, PDF] in January, arguing that because the charges of conspiracy and providing material support for terrorism did not exist at the time Hamdan allegedly committed them, they violated the ex post facto clause of the US Constitution and Common Article 3 of the Geneva Conventions [texts]. They said that the charges only became crimes after the passage of the Military Commissions Act of 2006 (MCA) [DOD materials], and that they could not be applied retroactively. The judge rejected the argument, writing that Congress's passage of the MCA was appropriate and allowed the charges against Hamdan:

In light of Congress's enumerated power to define and punish offenses against the law of nations, and its express declaration that in doing so, it had not enacted a "new crimes that did not exist before its enactment", the Commission is inclined to defer to Congress's determination that this is not a new offense. There is adequate historical basis for this determination with respect to each of these offenses.

[JURIST] The UK parliament [official website] approved [debate text] legislation Wednesday that would allow the use of testimony from anonymous witnesses at criminal trials. The Criminal Evidence (Witness Anonymity) Act 2008 [text, PDF; parliament backgrounder] was introduced [JURIST report] last month by UK Justice Secretary Jack Straw [official profile] as an emergency measure following the Law Lords [government backgrounder, PDF] ruling in Regina v. Davis [PDF text], which challenged the recently adopted judicial practice of permitting anonymous witnesses in specific cases. According to a statement [text] by the Ministry of Justice [official website]:

[The Bill] makes provision for any party to criminal proceedings to apply for a witness anonymity order, so either the prosecution or a defendant may apply, [it] sets out the conditions which must be satisfied before a court can make a witness anonymity order and the considerations the court must have regard to when deciding whether to make an order, [it] sets out an indicative list of the kinds of special measures that the courts may apply in order to protect the identity of an anonymous witness, for example, the use of screens and voice distortion, [and it] makes transitional provisions in respect of the trials under way when the Act comes into force and in respect of the hearing of appeals against convictions secured on the basis of anonymous evidence before the passing of the Act.

[JURIST] The Supreme Court of Wisconsin [official website] on Wednesday ruled [opinion text, PDF] that a homeowner's insurance policy does not cover a wife's negligence in not preventing her husband, who was covered by the same policy, from sexually abusing a child. With a 4-3 decision in J.G. v. Wangard [case history; oral argument audio], the Supreme Court upheld the decision of the Waukesha County Circuit Court [official website] that Deborah Wangard's alleged negligence was not covered by either of the couple's homeowner's policies issued by Great Northern Insurance Co. [corporate website] or Pacific Indemnity Insurance Co. [corporate website] because her husband, Steven Wangard, caused injury through an intentional act. The Court rejected the wife's argument that the language of the insurance contract was ambiguous and that she had a reasonable expectation of coverage. Following precedents and referring to the express language of the policy, the Court explained:

We agree with the analysis in Taryn E.F. and conclude that Great Northern and Pacific's use of the phrase "any covered person" in the policies' intentional acts exclusions, like the phrase "any insured" in the Taryn E.F. policy, unambiguously precludes coverage for all insureds.

[T]he policies in question unambiguously state that personal injury damages "arising out of" the intentional acts of "any covered person" are excluded from coverage. Deborah cannot reasonably argue that this policy language should be construed to cover the damages arising out of the intentional sexual contact with J.G. by her husband Steven, a covered person. In addition, as the court of appeals recognized in Jessica M.F., an insured cannot reasonably expect coverage for harms resulting from sexual assaults committed by one's spouse.