[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] in two cases on Tuesday. In Caperton v. A.T. Massey Coal Company [oral arguments transcript, PDF] the Court heard arguments on whether they should adopt a constitutional standard for requiring state judges to recuse themselves in cases where there is an "appearance of bias." The case is on appeal from a case [opinion, PDF] in the Supreme Court of Appeals West Virginia [official website] where A.T. Massey [corporate website] sought to reverse a $50 million verdict against them. Caperton, the plaintiff in that case, argues that because then-Acting Justice Brent Benjamin received $3 million in campaign contributions from A.T. Massey, he should have recused himself, and that his failure to do so was a violation of the Due Process clause of the Fourteenth Amendment [text]:

When the circumstances, including the timing of the contribution, the magnitude and proportion of the contribution, are such that it would lead a reasonable person in possession of all of the facts - these are all words from these courts' decisions - to believe that the judge would have a difficult time being other than biased in favor of one of the parties, that would be the standard that would be applied.

[W]e're talking about appearance as distinct from actual bias or probable [bias.] I can understand a rule that says the probability of bias is enough. I think it would be a very ill-advised rule without historical foundation, without foundation in the Court's precedents, and open-ended and creating all kinds of problems; but I can understand that rule. That at least is addressed to the right of the party to get a fair trial.

Appearance is addressed to a different thing. It's addressed to the reputation of the judicial system, which is not, I think, the function of the Due Process Clause to address.

Respondents' theory of the case would wipe out 60 years of FAA case law recognizing that nonparties have arbitration rights. Theories such as third party beneficiary, assignment, agency, estoppel, including equitable estoppel, assumption, successor in interest, none of those cases can survive effectively if this Court were to affirm the decision of the Sixth Circuit.

Estoppel is what you invoke when you have no contract to invoke, and this version of equitable estoppel is what you invoke when you have no arbitration agreement to invoke.

[JURIST] The US Department of Justice (DOJ) [official website] on Monday released [press release] two memoranda and seven opinions authored by the White House Office of Legal Counsel (OLC) [official website] during the presidency of George W. Bush [JURIST news archive], supporting the administration's counter-terrorism policies. The opinions, dated between 2001 and 2003, supported the president's broad use of executive authority to detain and hold foreign and US citizen prisoners, approve extraordinary rendition, conduct intelligence gathering, suspend treaty limits on the ballistic missile defense system, and deploy US troops within the country [opinions, PDF] to prevent or fight terrorist activity. The memos, dated 2008 and early 2009 [memoranda, PDF] expressed the OLC's later departure from relying on these justifications. Announcing the release of the documents, Attorney General Eric Holder [official website] said that it was made in an effort increase governmental transparency:

Americans deserve a government that operates with transparency and openness... It is my goal to make OLC opinions available when possible while still protecting national security information and ensuring robust internal executive branch debate and decision-making.

[JURIST] The US Department of Justice (DOJ) [official website] acknowledged Monday that the Central Intelligence Agency (CIA) [official website] has destroyed [letter, PDF] 92 videotapes of terrorism suspect interrogations [JURIST news archive]. The acknowledgment came in response to an August 2008 judicial order [text, PDF] that the CIA turn over information regarding the tapes or provide specific justifications on why it could not release the information. A stay on that order expired last week, and in a letter to the court, US Attorney Peter Skinner wrote that the DOJ now intends to provide as much of the information as possible, as well as justifications for omissions. The court seeks descriptions of the destroyed tapes; any ancillary summaries, transcripts, or reconstructions of their content; and the names of those individuals who had either viewed or possessed the tapes. Skinner requested that the DOJ be given until March 6 to provide the court with a schedule under which it can provide the information.

The August 2008 order came in response to a December 2007 American Civil Liberties Union (ACLU) [advocacy website] motion [text, PDF] that the CIA be held in contempt of court for not providing information on the tapes during a Freedom of Information Act (FOIA) [text] lawsuit [ACLU materials] brought by the organization in an effort to access government materials on the interrogations. The DOJ is also conducting a criminal probe [JURIST report] into the destruction of the tapes.

[JURIST] The International Criminal Court (ICC) [official website] should take steps to improve the enforcement of international justice, according to a report [text, PDF; press release] issued Tuesday by Aegis Trust [advocacy website], an advocacy group dedicated to eliminating genocide. The report, entitled "The Enforcement of Criminal Law," proposes reforms that would improve enforcement, including:

pooled financing, specialist units, a new treaty on crimes against humanity, an optional protocol to the Genocide Convention, and an increased role for the ICC in catalyzing domestic convictions, ... [suggesting that] the plumbing of international justice requires much more work than the architecture.

[JURIST] Defense lawyers for former Khmer Rouge foreign minister Ieng Sary [Trial Watch profile; JURIST news archive], on trial for crimes against humanity [press release, PDF; JURIST report], have been ordered [text, PDF] to remove documents relating to their case from a website within 48 hours or face sanctions. Judges from the Extraordinary Chambers in the Court of Cambodia (ECCC) [official website] have ordered the lawyers to remove nine documents from their trial website that may compromise the confidentiality of court proceedings. The documents in question relate to defense requests to add Ieng Sary's medical and psychiatric health information to the trial record. The defense had previously refused to follow court orders, alleging that the co-investigating Judges, You Benleng and Marcel Lemonde had:

suppress[ed] Defence [sic] filings which may be embarrassing or which call into question the legitimacy and judiciousness of the judges, all under the fig leaf that these are necessary measures to protect the supposed confidentiality and integrity of the investigation or judicial decision-making process.

[JURIST] The UN on Monday appointed [UN press release release] five new judges to serve on the UN Dispute Tribunal, and seven new judges, including one American, to the UN Appeals Tribunal. The tribunals were authorized in 2007, pursuant to UN General Assembly resolution 62/228 [text, PDF], and the appeals tribunal is charged with appellate review of grievance and discipline disputes between UN members heard in the dispute tribunal. The American judge, Mark Painter [official website], is a member of the Hamilton County Court of Appeals [court website] in Cincinnati, Ohio. Painter is one of three of the chosen judges who will serve an initial three-year term on the tribunal. At the conclusion of the three-year term, each of those three judges may apply for a non-renewable, seven-year term. The other four appointed judges will each sit on the tribunal for a single seven-year, non-renewable term. The UN anticipates that both the Dispute and Appeals Tribunals will be operational as of July 1, 2009.

The UN Internal Justice Council (IJC) [UN background] was responsible for advising the General Assembly on appropriate judges for the two tribunals. The IJC was formed in 2007 following an independent review [UN release] of UN internal justice procedures. The two-tiered tribunal system was also one of the suggestions put forth by the independent "Redesign Panel," convened in 2006 at the behest of the General Assembly, after then-Secretary General Kofi Annan called [UN report] the UN's internal justice system, "slow and cumbersome."

[JURIST] Chinese courts have begun accepting lawsuits against dairy companies in the contaminated milk scandal [JURIST news archive], a court official announced Monday, departing from their previous policy. Shen Deyong, executive vice president of the Supreme People's Court [official website, in Mandarin], China's highest court, made the announcement the day after the Chinese government announced it had finished compensating the families [Xinhua report] whose children were sickened by the tainted milk. Prior to Tuesday's announcement, the only remedy available to the families was a government-sponsored compensation plan [JURIST report] that paid families between USD $290 and $29,000. According to Shen, 95 percent of the families involved accepted the compensation, which supposedly precludes them from filing lawsuits. The Qingdao Intermediate Peoples Court became the first court to accept these lawsuits Monday when it accepted a lawsuit [China Daily report] seeking USD $1.2 million on behalf of 54 families of children made ill by the tainted milk.

Two people were sentenced to death [JURIST report] in January due to their roles in the scandal that killed six children and sickened nearly 300,000 others. Earlier that month, lawyers for the families of 213 Chinese children sickened or killed by the contaminated milk petitioned [JURIST report] the Supreme People's Court to hear a class action lawsuit against 22 dairy companies involved in the contamination, seeking more than $5 million in damages. In January, police in China detained five parents [JURIST report] of children who became sick after drinking melamine-tainted milk, preventing the parents from participating in a news conference.

[JURIST] More than 100 Serbian judges, prosecutors, and legal professionals prevented the opening of the first EU-backed trial [EULEX press release, PDF] in Kosovo by protesting in front of the Mitrovica [OSCE profile, PDF; JURIST news archive] court house Monday. A panel of three judges had been set to preside over a criminal case involving two Serbian defendants. As Serbia and Kosovo's Serbian population have refused to accept Kosovo's independence, the demonstration was intended to bar the EU from holding trial [B92 report] in Kosovo except under UN laws. The trial court was established by European Union Rule of Law Mission in Kosovo (EULEX) [official website], an EU mission designed to guide Kosovo toward independence in accordance with the Rule of Law. Citing security concerns, the court has not yet rescheduled the trial.

The EULEX formally began operations [JURIST report] in December. Kosovo controversially seceded from Serbia [JURIST report] in February 2008, and its new constitution [text] went into effect [JURIST report] in June. Kosovo's Declaration of Independence from Serbia was met with support from the EU, the US, and from many other countries. Serbia formally condemned the secession [text, JURIST report], citing its illegality under UN Security Council Resolution 1244 (1999). In response to the issuance of Kosovo's Declaration of Independence last March, violent protests in front of the Mitrovica courthouse led to a period of military law [JURIST reports] in the country.

[JURIST] The US Supreme Court [official website; JURIST news archive] decided two cases Tuesday. In Summers v. Earth Island Institute [Cornell LII backgrounder; JURIST report] the Court ruled [opinion, PDF] 5-4 that a group of environmentalists cannot sue to have a Forest Service regulation struck down, as they are limited only to suing to end programs enacted under that regulation. Writing for the majority, Justice Antonin Scalia found that the environmental groups lacked standing:

Respondents argue that they have standing to bring their challenge because they have suffered procedural injury, namely that they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied. But deprivation of a procedural right without some concrete interest that is affected by the deprivation - a procedural right in vacuo - is insufficient to create Article III standing. Only a "person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy."

The question here is whether an alien who was compelled to assist in persecution can be eligible for asylum or withholding of removal. We conclude that the BIA misapplied our precedent in Fedorenko as mandating that an alien’s motivation and intent are irrelevant to the issue whether an alien assisted in persecution. The agency must confront the same question free of this mistaken legal premise.

[JURIST] One in 31 US adults are on probation, in prison, or on parole, according to a report [text; press release] released Monday by the Pew Center on the States [advocacy website]. The report found that men are five times more likely than women to be under correctional control, although the number of women continues to grow. Black adults are four times more likely than white adults to be under correctional supervision. These correctional controls cost an escalating $68 billion per year, without an apparent change in recidivism rates. The report states:

With the costs of imprisonment rising and the benefits falling, our ability to keep communities safe depends more than ever upon our ability to better manage the 5 million offenders on probation and parole. The current budget crisis presents states with an important, perhaps unprecedented opportunity to do so. Rather than trying to weather the economic storm with short-term cost saving measures, policy leaders should see this as a chance to retool their sentencing and corrections systems.

[JURIST] US Attorney General Eric Holder [official profile] on Monday reaffirmed his opposition [speech text] to waterboarding [JURIST news archive] as an acceptable interrogation device. In a speech before the Jewish Council for Public Affairs, Holder emphasized the need to return to the ideals of the US.

As I unequivocally stated in my confirmation hearing before the U.S. Senate, waterboarding is torture. My Justice Department will not justify it, rationalize it, or condone it. The sanction of torture is at odds with the history of American jurisprudence and American principles. It undermines our ability to pursue justice fairly, and it puts our own brave soldiers in peril should they ever be captured on a foreign battlefield.

[JURIST] The Supreme Iraq Criminal Tribunal [governing statute, PDF] convicted Ali Hassan al-Majid [BBC profile; JURIST news archive] Monday of murder and sentenced him to a third death sentence, while acquitting former Iraqi Deputy Prime Minister Tariq Aziz [BBC profile; JURIST news archive]. Al-Majid, better known in the Western Media as "Chemical Ali," and a cousin of former Iraqi dictator Saddam Hussein, was convicted along with two other former Iraqi officials in connection with the killings of protesters who rioted [HRW backgrounder] in Baghdad and Amarah following the alleged assassination of Shiite cleric Grand Ayatollah Mohammed Sadiq al-Sadr - father of anti-American cleric Muqtada al-Sadr [CFR profile] - by Hussein agents. Al-Majid remains in US custody, pending disputes [BBC News report] over arrangements for his execution and ongoing trials, including proceedings against him [JURIST report] for allegedly orchestrating a 1998 gas attack that killed 5,000 Kurds in the village of Halabja, and a trial for his alleged involvement [JURIST report] in the execution of thousands of political prisoners during Hussein's rule.

In December 2008, the Tribunal sentenced al-Majid to death [JURIST report] for his involvement in the repression of Shiites in southern Iraq during the Saddam regime. Al-Majid has also been sentenced to death for the killing of Kurdish Iraqis using chemical weapons during the 1988 Anfal campaign [BBC backgrounder; JURIST news archive]. His death sentence in the Anfal case was upheld on appeal in September 2007, but Iraq's Presidency Council did not approve the execution [JURIST reports] until late February. Iraqi Prime Minister Nouri al-Maliki's government said in early March that al-Majid would not be executed [JURIST report] until the Presidency Council approved the death sentences of al-Majid's two co-defendants in that case.

[JURIST] Zimbabwean human rights activist Jestina Mukoko [advocacy website, JURIST news archive] was released on bail Monday after three months of detention on the authorization of President Robert Mugabe [JURIST news archive]. Mukoko, director of the Zimbabwe Peace Project (ZPP) [official website], had been held without chargers since December and was allegedly subjected to torture during her incarceration. Mukoko has been hospitalized [Zimbabwe Times report] for the treatment of injuries sustained over the past three months and remains under medical care after her release from police custody. Mukoko’s release may come as a response [ZimOnline report] to a call by Prime Minister Morgan Tsvangirai [JURIST news archive], who was installed last month after signing a power-sharing agreement [JURIST reports] with Mugabe.

Mukoko, an outspoken critic of Mugabe, was apprehended from her home in December and held in an undisclosed location for months because of her alleged involvement in Mugabe's opposition. While in prison, it was reported that Mukoko was forced to ingest poison [JURIST report], an allegation that has sparked a world wide protest against Zimbabwean police methods. Mukoko was previously denied bail [JURIST report] by Zimbabwean lower courts. Last month, a court ruled that Mukoko could appeal her detention [JURIST report] to the Supreme Court of Zimbabwe under the Zimbabwe Constitution [text, PDF].