[JURIST]New York Supreme Court Judge Jacquelyn Silbermann [official website] Wednesday rejected a petition brought by two members of New York City Council [official website] trying to prevent a council vote on a resolution to extend New York mayoral and city council term limits [materials] from eight to 12 years. Council members Bill de Blasio and Letitia James [official websites] filed the complaint to prevent the vote, arguing that voting on an option to extend their own terms presented members with a conflict of interest. Silberman ruled again them, noting that members opposed to extension could vote no or abstain. The council is scheduled to vote on the resolution [text] introduced by Mayor Michael Bloomberg [official website] Thursday. Reuters has more. Newsday has local coverage.

Last month, Bloomberg announced his plan to seek a third term [NYT report], arguing his financial expertise and business background is necessary to lead New York through the rough financial times caused by the credit crisis. To seek re-election, Bloomberg introduced a council resolution to extend mayoral term limits from two to three 4 year terms. The current term limits were enacted in 1993 by city-wide referendum and upheld in 1996 again by referendum [NY Times report]. Critics argue Bloomberg's resolution overturns a decision by popular referendum with a council vote that requires only a simple majority to pass.

[JURIST] The US Court of Appeals for the Eleventh Circuit [official website] has ruled [opinion, PDF] that a physician who was accused of writing illegal prescriptions could pursue claims of false arrest, false imprisonment and malicious prosecution against the federal government. The court held Tuesday that a provision of the Federal Tort Claims Act (FTCA) [text] permitted such claims as an exception to the United States' sovereign immunity. The plaintiff, Dr. Andrew Nguyen, fled Vietnam in the late 1970s, bought a practice in rural Trenton, Florida, after earning US medical licenses, and became a US citizen in 1986. His practice was decimated after he was arrested on suspicion of unauthorized delivery of controlled substances [statute text] in 2000, even though the charges were dropped for lack of evidence two months later. In its opinion reversing a judgment of the US District Court for the Northern District of Florida [official website], the Eleventh Circuit panel wrote:

What happened to Dr. Nguyen's practice is what happens to the established professional practices of medical doctors who are caught committing crimes involving controlled substances. If the record before us is to be believed, however, Dr. Nguyen committed no crime. It is not just that the charges against him were dismissed on insufficient evidence grounds. It is more than that. The record, as it now exists, indicates that Dr. Nguyen's arrest was not based on any evidence of wrongdoing at all. All of the evidence that law enforcement officers had then, as well as now, showed that he was guilty of no crime. They arrested him anyway.

[JURIST] The death sentence of Afghan journalism student Sayad Parwaz Kambaksh [JURIST news archive] was reduced Tuesday to 20 years' imprisonment by an Afghan appeals court. Kambaksh was sentenced to death [JURIST report] in January for distributing papers questioning gender roles under Islam. In May, Kambaksh appealed his death sentence [JURIST report] before the appeals court. He denied the accusations in front of a three-judge panel Sunday, saying they were made by Balkh University professors and students with “private hostilities” against him. He told the court that his confessions were the result of torture by the Balkh province intelligence service. The Times has more.

Kambaksh was sentenced to death following his trial, where he had no legal representation [JURIST report] and was allowed only three minutes to present his defense. The closed court invoked Article 130 of the Afghanistan Constitution [text] to pass down the death sentence, a penalty for blasphemy consistent with Hanafi [GlobalSecurity backgrounder] Islamic law. Afghanistan President Hamid Karzai was put under international pressure to pardon Kambaksh, but said that he would not intervene [JURIST report] during the pendency of Kambaksh's appeal.

[JURIST] US Homeland Security Secretary Michael Chertoff [official profile] Wednesday issued a final rule setting out the details of his department's air passenger screening program [TSA official site]. Under the Secure Flight Final Rule [PDF text], responsibility for vetting the nation's air passengers moves from individual airlines to the Transportation Security Administration (TSA)[offical site]. Airlines will collect the names, birthdays and genders of their passengers and transmit this information to the TSA, which will compare that against the government's "no fly" terrorist watch list and instruct airlines whether or not to issue a boarding pass. The collection of additional information is intended to reduce the number of misidentifications and increase the efficacy of the watch list, which has been criticized [JURIST report] by the Government Accountability Office [official site] for being inefficient. Screening for domestic flights is set to begin in early 2009, with matching on international flights slated for later in the year. The Washington Post has more

In response to privacy concerns [EFF report; ACLU report], TSA Administrator Kip Hawley said

Secure Flight will improve security by maintaining the confidentiality of the government's watch list information while fully protecting passengers' privacy and civil liberties. ... Ensuring privacy has been a cornerstone of this program and TSA has developed a comprehensive privacy plan to incorporate privacy laws and practices into all areas of Secure Flight.

[JURIST] US District Judge Benjamin Settle ruled [order, PDF] Tuesday that Iraq war objector 1st Lt. Ehren Watada [advocacy website; JURIST news archive] cannot face a second court-martial on all charges for which he already faced court-martial. Settle's order held that a second-court martial of Watada on three of the five charges in his first court-martial would constitute double jeopardy [LII backgrounder] in violation of the Fifth Amendment of the US Constitution. Settle had granted an injunction [JURIST report] against the second court-martial in November 2007 in order to resolve the double jeopardy dispute. The controversy over Watada's second court-martial concerns the declaration of a mistrial in the case by Lt. Col. John Head, the military judge overseeing the court martial, after he rejected a Stipulation of Fact by Watada and the government, conceding that Watada was guilty of the charge of Missing Movement when he missed a flight that would have flown him to his post in Iraq. Head rejected the Stipulation to Fact on the grounds that it was not a confessional stipulation because Watada believed that he had a justifiable reason for missing the flight, and that reason constituted a defense to the Missing Movement charge. In ruling that Watada cannot be face court-martialed for a second time on certain of the charges, Judge Settle wrote

The strictest scrutiny should be applied to the trial judge's determination [to order a mistrial] because the record reflects that the Government moved for a mistrial on the basis that it was unable to proceed with its case. In the alternative, the judge did not exercise sound discretion when he failed to engage in a procedurally adequate development of his determination that a mistrial was appropriate. Under either level of review, the record does not reflect that there was a manifest necessity to declare a mistrial over Petitioner's objection. As a result, the Government is barred from retrying Petitioner on Charge I [Missing Movement] and Charge II, Specifications 1 and 4 [Conduct Unbecoming an Officer and a Gentleman], because it would violate Petitioner's Fifth Amendment right to be free from double jeopardy.

[JURIST] The US Department of Defense announced Tuesday that the Office of Military Commissions Convening Authority has dismissed charges without prejudice [press release] against five Guantanamo Bay [JURIST news archive] detainees. Noor Uthman Mohammed, Binyam Mohammed, Sufyiam Barhoumi, Ghassan Abdullah al Sharbi, and Jabran Said Bin al Qahtani remain in custody, and Chief Prosecutor Army Col. Lawrence Morris has appointed teams to consider whether to recharge each prisoner. Lawyers for Binyam Mohammed called the move a "farce" [Reprieve press release], reporting that they had been informed of plans to "charge [Mohammed] again within a month, after the election.” The detainees were each charged by former military prosecutor Army Lt. Col. Darrel Vandeveld, who resigned [JURIST report] last month citing "ethical qualms" with the military commissions' defense counsel discovery procedures. AP has more. The New York Times has additional coverage.

All five men were formally charged in May. Noor Uthman Mohammed, a Sudanese national, was charged [JURIST report] with conspiracy and providing material support for al Qaeda in Afghanistan. UK resident Binyam Mohammed [Reprieve profile; JURIST news archive] was charged with conspiracy to commit terrorism and has been engaged in a battle with the British government after suing [JURIST report] for access to evidence related to his alleged extraordinary rendition [JURIST news archive] and torture. Algerian Barhoumi and al Sharbi and al Qahtani of Saudi Arabia were charged [JURIST report] with conspiracy and providing material support for terrorism based on their alleged involvement with an al Qaeda bomb-making group in Pakistan and Afghanistan.

[JURIST] US Defense Secretary Robert Gates [official profile] confirmed Tuesday that the military prison at Guantanamo Bay [JURIST news archive] would remain open for the duration of President George W. Bush's administration. The New York Times reported [text] earlier in the day quoted unnamed senior administration officials as saying Bush had decided not to close the prison before the end of his presidency. The Times reported Bush "never considered" recent proposals [AFP report] by the Pentagon and State Department [official websites] to transfer the detainees elsewhere. Instead, the president agreed with Vice President Dick Cheney [official profile] and other advisers that immediate closure would pose significant legal and political risks. Responding to a question about the Times report during a press conference [transcript] Tuesday, White House press secretary Dana Perino characterized Bush's decision as one "to work to try to close Guantanamo Bay." She said:

What the President has said is that he wants to be able to get into a position where we could close Guantanamo eventually. But it's very complex, it's complicated, it is difficult. There are four basic issues that we're dealing with right now. One of them is moving forward on military commissions. That process is slow, but it is moving forward. Another one is returning home or to a third country many of the detainees.... Third, we're in habeas litigation when it comes to the Boumediene decision and then the recent decision from Judge Urbina on the Uigher case.... And [Attorney] General Mukasey, backed by the President, supports legislation that Congress needs to pass.

[JURIST] The Ecuadorean Supreme Court of Justice and the Constitutional Tribunal of Ecuador [official website, in Spanish] on Tuesday published a statement [text, in Spanish] laying out the first steps in enacting a system of oral arguments, as required by the new Ecuadorean constitution [text, in Spanish]. The constitution, which took effect Monday upon publication in the country's official gazette following its approval last month in a national referendum [JURIST report], consolidates and significantly broadens the powers held by leftist President Rafael Correa [official website, in Spanish; BBC profile]. The new constitution gives the president the power to remove Congress in the middle of a four-year term, to control monetary policy and to seek re-election for an additional term. It also includes plans to tighten control over Ecuador's vital mining and oil industries. AFP has more. From Ecuador, El Universo has local coverage, in Spanish.

Last month, President Correa called the vote a "historic victory," commenting [Reuters report; official statement, in Spanish], "Today, Ecuador has decided on a new nation, the old structures are defeated." The special assembly charged with rewriting the constitution provisionally approved the document in July [JURIST report]. The success of Correa's referendum fulfills his pledge to rewrite the country's constitution [JURIST report] after his leftist coalition's landslide victory [JURIST report] in October 2007. Correa's Alianza PAIS party [official website, in Spanish] has a majority in the Constituent Assembly. Critics continue to fear that the 444-article constitution gives the president too much control over the economy and the judiciary, which would allow Correa to follow the example set by Venezuelan President Hugo Chavez [BBC profile] in using the reform to further expand his powers.

[JURIST] The Appeals Chamber of the International Criminal Court (ICC) [official website] Tuesday ruled [press release] on two separate appeals filed by the Office of the Chief Prosecutor [official website], reversing for now the Trial Chamber's decision to release former Congolese militia leader Thomas Lubanga [BBC profiler; JURIST news archive] but dismissing a request [judgment, PDF] that it lift an indefinite stay on his trial. The Appeals Chamber remanded to the Trial Chamber [judgment, PDF] the ultimate question of whether Lubanga should be conditionally or unconditionally released, or whether he should remain in custody. The ICC Trial Chamber in June had imposed an indefinite stay [PDF text] on Lubanga's war crimes trial after accusing the prosecution of using confidentiality agreements to withhold possible exonerating evidence, and in July ordered his release [JURIST report]. According to the Appeals Chamber:

[T]he Trial Chamber was faced with a situation in which a large number of documents containing potentially exculpatory information or information relevant to the preparation of the defence was in the possession of the Prosecutor, but could not be disclosed to Mr. Lubanga Dyilo. Nor could the Trial Chamber have access to the documents in order to assess whether a fair trial could be held even without the disclosure of the documents . . . If the trial of Mr. Lubanga Dyilo had taken place in such circumstances, there would always have been a lurking doubt as to whether the disclosure of the documents in question would have changed the course of the trial.