[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] Tuesday in Citizens United v. Federal Election Commission [oral arguments transcript, PDF], in which the Court will consider whether federal election law prohibits a corporation from funding a documentary on a candidate in advance of a federal election. Petitioner Citizens United [advocacy website] is a non-profit conservative advocacy corporation that produced a 90-minute documentary, "Hillary: The Movie," questioning then-Senator Hillary Clinton's (D-NY) qualifications to serve as US president. Citizens United sought an order declaring that ads for the movie, scheduled to air during the Democratic presidential primary, were not "electioneering communications" within the meaning of Section 203 of the Bipartisan Campaign Reform Act (BCRA) [text, PDF]. The US District Court for the District of Columbia [official website] initially refused to issue the order, and later determined [opinions, PDF] in a judgment on the merits that the ads were covered by Section 203, allowing the Federal Election Commission (FEC) [official website] to regulate and subject them to disclosure requirements. Appealing the decision, Citizens United challenged the application of BCRA on broad First Amendment grounds:

The government cannot prove and has not attempted to prove that a 90-minute documentary made available to people who choose affirmatively to receive it, to opt in, by an ideologically oriented small corporation poses any threat of quid pro quo corruption or its appearance. Indeed, this documentary is the very definition of robust, uninhibited debate about a subject of intense political interest that the First Amendment is there to guarantee.

[JURIST] UK Justice Secretary Jack Straw [official website] Monday outlined draft legislation [materials] that would officially recognize certain "rights and responsibilities" for British citizens. The legislation described in a government green paper [PDF text] prior to public consultations would formally declare a number of rights which already exist in the country including access to medical care, education, and housing, as well as certain rights for victims of crime. It would also set out responsibilities expected of citizens, including the duties to vote, pay taxes, obey laws, and serve on juries. Straw said that the bill would not create new causes of action for citizens who had been denied these rights, nor against those who failed to perform otherwise non-mandatory duties, but would instead serve as an official declaration of their importance to the operation of the country and government:

Bills of rights all over the world have demonstrated great symbolic and cultural importance, in the face of threats and challenge to a country’s stability and system of values.

From the Magna Carta in 1215 and the Declaration of Arbroath in 1320, the later Bill of Rights and Scottish Claim of Right in 1689, the great Reform Acts of the 19th and early 20th centuries, through to more recent landmarks, such as the foundation of the National Health Service as part of the welfare state, our history illustrates the proud traditions of liberty on which our current framework of democratic rights and responsibilities is built.

We are living through a period of change – technologically, demographically, economically, socially and culturally. At such times of change, constitutional protections for fundamental rights and freedoms and the articulation of responsibilities can offer security. A new constitutional instrument, reflecting the values that give rise to these rights and responsibilities, could act as an anchor for people in the UK.

[JURIST] The UN Working Group on Arbitrary Detention [official website] said [press release and opinion, PDF] that the detention of Nobel Prize winner Aung San Suu Kyi [BBC profile; JURIST news archive] violates Myanmar's 1975 State Protection Law [text] and pressed for her immediate release in an opinion made public Monday. A panel, composed of Judges from Chile, Pakistan, Russia, Senegal, and Spain, issued a legal opinion in November arguing that Suu Kyi's detention since 2003 violates Myanmar's own laws because the law only permits detention for up to five years and only for state security reasons. The report says that her period of detention expired in May 2008 and that she does not pose a threat to Myanmar's security. Monday's report marks the first time that the UN had said that Myanmar was violating its own laws in detaining Suu Kyi. Four previous legal opinions have said that Myanmar's detention of Suu Kyi was illegal under UN law [JURIST report] and have also called for her release.

Last year, Myanmar officials defended the continued detention of Suu Kyi, saying that the 1975 law permits the government to detain Suu Kyi for up to six years [JURIST report] and pointed out that other countries like the US and the UK had similar anti-terror laws. Myanmar released 15 members of Suu Kyi's party, the National League for Democracy, last year but has so far refused [JURIST report] to release her for security reasons, despite earlier indications that it might do so.

[JURIST] Pakistan's Chief Justice Iftikhar Mohammed Chaudhry [official profile; JURIST news archive] returned to work Tuesday after being reinstated [JURIST report] earlier this week and immediately called for members of the Pakistani judicial system to put an end to corruption [Dawn report]. Chaudhry resumed his position amid great celebration [BBC video] by Pakistani lawyers, 16 months after being removed from his post [JURIST report] by then-president Pervez Musharraf [JURIST news archive]. One of the first orders of business for the court will be to decide the fate of the judges and justices appointed under emergency rule [JURIST report] by Musharraf.

Pakistan's President Asif Ali Zardari [official profile; JURIST news archive] last week announced that Chaudhry's reinstatement [JURIST report] was imminent and ordered government officials to release [Dawn report] anyone arrested during a second so-called "long march" [JURIST report] held in part to call for Chaudhry's return. Former Pakistani prime minister Nawaz Sharif and the Pakistan Muslim League had actively campaigned [JURIST report] for Chaudhry's reinstatement, and Chaudhry maintained that he was still chief justice [JURIST report] under the Pakistani constitution, even after his ouster.

[JURIST] The US Supreme Court [official website; JURIST news archive] ruled [opinion, PDF] unanimously Tuesday in Knowles v. Mirzayance [Cornell LII backgrounder; JURIST report] that a lawyer’s recommendation that a criminal defendant withdraw an insanity plea does not constitute ineffective assistance of counsel for purposes of a federal habeas claim. Writing for the Court, Justice Clarence Thomas reasoned:

The law does not require counsel to raise every available nonfrivolous defense. ... Counsel also is not required to have a tactical reason - above and beyond a reasonable appraisal of a claim’s dismal prospects for success - for recommending that a weak claim be dropped altogether. Mirzayance has thus failed to demonstrate that his counsel's performance was deficient.

In addition, Mirzayance has not demonstrated that he suffered prejudice from his counsel's performance.

[JURIST] US President Barack Obama [official profile] on Monday nominated [WH press release; YLS press release] Yale Law School Dean Harold Hongju Koh [professional profile] to be legal adviser [official website] to the Department of State (DOS) [official website]. Koh was touted by Obama as an authority on public and private international law, national security law, and human rights. He previously served as assistant secretary of state for human rights and labor under the Clinton administration before becoming Dean at Yale in 2004.

If confirmed, Koh would replace current legal adviser John Bellinger III [JURIST news archive], nominated by the Bush administration, and would provide counsel on international law to the secretary of state and US embassies around the world. Bellinger defended US legal policy in the "war on terror" [JURIST report] in a variety of international legal and diplomatic venues and was one of the principal drafters of the 2004 Intelligence Reform and Terrorism Prevention Act [text; PDF, JURIST news archive] that created the Director of National Intelligence [official website].

[JURIST] Suspected al Qaeda operative Ali Saleh Kahlah al-Marri [case materials; JURIST news archive] pleaded not guilty Monday to charges of providing material support to al Qaeda, and his trial date was set for May 26. At an arraignment hearing before the US District Court for the Central District of Illinois [official website], Judge Michael Mihm also made several evidentiary rulings. Mihn acknowledged that the trial start date will likely be pushed back [Chicago Tribune report], but still expects the trial to begin this sometime this year. An April 14 date was set for a review of evidence submitted [Peoria Star Journal report].

Last week, a South Carolina judge ruled that al-Marri must remain in prison [JURIST report] during his trial, holding that he had not proven he was not a danger to the community. Earlier this month, the US Supreme Court [official website; JURIST news archive] granted [order, PDF; JURIST report] a motion [text, PDF] by the US government to dismiss as moot an appeal challenging al-Marri's indefinite detention, following the Obama administration's decision to try al-Marri in US federal court [JURIST report]. Al-Marri was indicted [indictment text; DOJ press release] earlier this month on two charges of providing material support to al Qaeda and conspiring with others to provide material support to al Qaeda. In January, shortly after taking office, President Barack Obama ordered an immediate review [JURIST report] of al-Marri's detention. Al-Marri was arrested at his home in Peoria, Illinois by civilian authorities in 2001, and was indicted for other crimes. In 2003, then-President George W. Bush declared him an enemy combatant [CNN report] and ordered the attorney general to transfer custody of al-Marri to the defense secretary, claiming inherent authority to hold him indefinitely. Until recently, al-Marri was detained on a US Navy brig in South Carolina.

[JURIST] The Vermont State Senate [official website] voted 26-4 Monday to approve [Senate journal, PDF] same-sex marriage [JURIST news archive] in the state. This was the second of three readings of the proposed bill [S.0115 text, PDF], entitled “An Act to Protect Religious Freedom and Promote Equality in Civil Marriage." Senator Kevin Mullin (R) brought an alternative motion for an advisory referendum to take place in the March 2010 elections asking the general public whether "the General Assembly [shall] amend the laws of the state to allow couples of the same sex to marry?" before taking legislative action. Mullin’s motion was not sustained and the proposed bill is now due for a third reading [Senate calendar; PDF] on Tuesday, after which it is expected to pass in the Senate and be introduced to the House of Representatives. Earlier this month, Vermont Governor Jim Douglas (R) [official profile] said that he opposes [AP report] legalizing same-sex marriage, but it is unclear whether he would veto the bill.

The Vermont Senate began hearings [JURIST report] on the bill last week. If the proposed legislation passes, Vermont would join Massachusetts [JURIST news archive] and Connecticut [JURIST report] in extending marriage rights to same-sex couples. In California, the state Supreme Court heard oral arguments [JURIST report] on Proposition 8 [JURIST news archive] earlier this month, and a ruling is expected by early May. The passage of Proposition 8 last November amended the California constitution to define marriage to be between a man and a woman, overturning a ruling [JURIST reports] by the California Supreme Court which permitted the marriage of same-sex couple.

[JURIST] At least 2,390 people were executed throughout 25 countries in 2008, according to a report [text, PDF; AI press release] released Tuesday by Amnesty International (AI) [advocacy website], up from the reported 1,252 executions in 2007 [AI report, PDF]. China, Iran, Saudi Arabia, Pakistan, and the US account for 93 percent of all executions performed in 2008. China alone had 1,718 executions, or 72 percent of executions worldwide, amidst questions regarding fairness of trials and access to lawyers for the accused. AI also reported that there is a global trend towards the abolition of the death penalty. Two-thirds of all nations have abolished capital punishment. In the Americas, the US is the only country that carries out regular executions. Last year, the US performed the smallest number of executions since 1995 with one state, Texas, accounting for half of those executions.

The report by AI follows a second resolution [text] by the UN General Assembly [official website] calling on member states to observe a moratorium on capital punishment. Additionally, the African Commission on Human and Peoples' Rights [advocacy website] passed a similar resolution [text] in November calling for the observation of a death penalty moratorium. In contrast, executions resumed in the US in April 2008 after the US Supreme Court lifted an effective moratorium by upholding lethal injection [JURIST reports]. The first execution following the ruling [JURIST report] was conducted in Georgia in May 2008. However, individual states such as New Jersey and New Mexico [JURIST reports] have abolished the death penalty.

[JURIST] A judge for the US District Court for the Eastern District of New York [official website] overturned [memorandum and order, PDF] Monday a US Food and Drug Administration (FDA) [official website] decision to limit the over-the-counter (OTC) availability of the Plan B emergency contraceptive pill [product backgrounder] to women over the age of 18. In 2006, the FDA approved [JURIST report] the OTC sale of the Plan B contraceptive to women 18 years old and older, but included a controversial provision that required a doctor's prescription for women under 18 years old. The court agreed with the plaintiffs' assertions that the FDA's decisions regarding limiting the OTC sale to women over 18 "were arbitrary and capricious because they were not the result of reasoned and good faith agency decision-making." In overturning the FDA's decision and remanding the matter to the agency for further deliberation on OTC usage of the medication, Judge Edward Korman wrote:

When a court reviewing an agency decision rules in favor of the plaintiff, it generally remands to the agency rather than granting affirmative relief. Certain circumstances, however, warrant exception to this general remand rule. Where a court has found that an agency decision is not supported by the record, but "the record has been fully developed," remand would fail to "serve a useful purpose." ...

A remand would serve no purpose with respect to one aspect of the FDA’s decision – requiring that 17 year olds obtain a prescription for Plan B. The record is clear: the FDA’s justification for the denial of OTC access to Plan B for women over the age of 17 – rather than 18 – "runs counter to the evidence" and "is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."

[JURIST] A Dutch court Monday convicted a former Rwandan Hutu for the 1994 killing of two Tutsi mothers and at least four of their children. Joseph Mpambara [TrialWatch profile], who was sentenced to 20 years in prison for the killings, was allegedly a member of the Interahamwe [GlobalSecurity backgrounder], an extremist Hutu militia that was responsible for the deaths of thousands of ethnic Tutsi during the 1994 Rwandan genocide [HRW backgrounder]. Mpambara was tried in the Dutch national court under an agreement with the International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive], as Mpambara had lived in the Netherlands since 1998. Mpambara was also convicted [AP report] of torturing a German-Rwandan couple and their child at a Hutu roadblock. Mpambara is the brother of Obed Ruzindana [TrialWatch profile] who was sentenced by the ICTR to 25 years imprisonment in 1999 on charges of genocide.

The ICTR has made significant progress towards fulfilling its mandate of investigating and prosecuting humanitarian crimes arising from the 1994 Rwandan genocide. The ICTR's success prompted the US State Department to praise [JURIST report] the court's work in its most recent human rights report, released on in late February. Also in February, the ICTR sentenced [JURIST report] former priest and military chaplain Emmanuel Rukundo [case materials] to 25 years imprisonment after convicting [press release] him of genocide, crimes against humanity, and sexual assault. The contempt trial against a former ICTR defense investigator began earlier in February. In January, a former Rwandan justice official was sentenced to life in prison [JURIST reports] for his role in the 1994 genocide. Under UN Security Council Resolution 1503 (2003) [PDF text], it was supposed to complete all trials by the end of the year, and to complete all of its work, including appellate review, by 2010. In June 2008, however, the ICTR prosecutor asked the Council [JURIST report] to extend the ICTR's mandate, noting that the recent arrests of several genocide suspects meant that the court would not have time to finish several first-instance cases until 2009.