[JURIST] Kenyan prosecutors brought piracy charges Thursday against 18 Somali nationals who were captured at sea by European naval forces over the past two months and handed over to the Kenyan authorities. The suspected pirates [DW report] were captured by French and German forces off the Somali coast, where they allegedly attacked several merchant ships in the area. The European Union (EU) [official website] and Kenya have reached an agreement [EU press release, PDF; JURIST report] that allows EU navies to apprehend alleged pirates and turn them over to Kenyan authorities for prosecution. The agreement contains provisions for the prosecution of piracy suspects, including nine of the Somali pirates charged Thursday, who were captured by German forces [DW report] in March, and "defines modalities" for any capture of suspected pirates in the future. Germany has maintained a presence in the Gulf of Aden as a part of the EU's Naval Forces Atalanta mission to stem pirate activity in the troubled Gulf region. Kenya has become the lead prosecutor of suspected pirates captured by third-party countries within the Gulf of Aden. Also Thursday, the president of the UN-sponsored International Tribunal for the Law of the Sea [official website] said that body is ready to adjudicate piracy cases [AFP report].

Earlier this week, a Somali suspect captured by US naval forces following an attack on the container ship Maersk Alabama [corporate backgrounder] was charged [JURIST report] with piracy-related offenses in a US federal court. Earlier this month, the Commandant of the US Coast Guard called for greater enforcement [JURIST report] of international piracy laws. In November, eight Somalis were charged [JURIST report] in a Kenyan court for piracy after being turned over to Kenyan officials by the British Royal Navy [official website]. In October, the UN Security Council unanimously approved Resolution 1838 [text, PDF; press release], condemning all acts of piracy and armed robbery off the coast of Somalia, and calling on states to "deploy naval vessels and military aircraft to actively fight piracy on the high seas off the coast of Somalia." In January 2006, the US Navy [official website] captured 10 Somali men 200 miles off the coast of Somalia and turned them over to Kenyan courts in Mombasa for prosecution [press release]. In November 2006, each of the 10 men was sentenced to seven years in prison. Although maritime piracy is increasingly widespread, Somalia's coast has been ranked as the most dangerous in the world [BBC report] due to a surge in attacks on ships carrying traded goods or humanitarian aid [NPR report].

[JURIST] Former Khmer Rouge [BBC backgrounder] prison head Kaing Guek Eav [TrialWatch backgrounder, JURIST news archive], also known as "Duch," testified in court Thursday that he trained staff to elicit confessions from prisoners through torture. Kaing also testified [AFP report] before the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] as to the chain of command at the notorious S-21 prison camp. On Wednesday, Kaing testified that he was tricked by UN officials [AFP report] in 1999 into giving a recorded confession. Kaing is being tried in the ECCC on mass torture and murder charges stemming from the killing of prisoners at the S-21 prison he oversaw. Kaing has admitted responsibility [JURIST post] for the deaths of prisoners at S-21.

Kaing recently requested release to a 'safe house' [JURIST report] during Cambodia genocide trial, though he lost a similar appeal [JURIST report] of his pre-trial detention in 2007. His trial is the first of eight [JURIST report] that the ECCC hopes to hear against former members of the Khmer Rouge, which has been accused of murdering 1.7 million Cambodians [PPU backgrounder] during its nearly four-year reign. The ECCC has long been plagued with accusations of corruption and inadequate funding, with greater problems in recent years. In March, the ECCC reported that it would be unable to pay its Cambodian employees [JURIST report] for that month, one year after the court had requested $114 million dollars from the UN [JURIST report]. In February, Human Rights Watch warned that the ECCC trials were in danger of being tainted for their failure to follow fair trial standards [JURIST report], and in January a Cambodian court agreed to hear a corruption case [JURIST report] involving two ECCC judges.

[JURIST] A judge in the US District Court for the District of Columbia [official website] on Wednesday adopted a new standard [opinion, PDF] for authorizing and reviewing the detention of terrorism suspects at Guantanamo Bay [JURIST news archives] proffered by the Department of Justice (DOJ) [official website] last month. The DOJ submitted a memorandum [text, PDF; JURIST report] in March asking the court to use a new standard for adjudicating habeas corpus petitions filed by Guantanamo detainees. Judge Reggie Walton issued a memorandum opinion embracing the government's standard, which is based on international laws of war [DOJ press release] defining the president's authority under the Authorization for the Use of Military Force (AUMF) [text] and allows detention only of individuals who substantially support the Taliban or al Qaeda. Walton concluded:

in addition to the authority conferred upon him by the plain language of the AUMF, the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms 'substantially supported' and 'part of' are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.

[JURIST] A London High Court [official website] judge said Wednesday that the court will issue an order for the release of classified US intelligence relating to the detention of Binyam Mohamed [Reprieve profile; JURIST news archive] if the UK government does not request the information within seven days. Lord Justice John Thomas said [McClatchy report] that UK Foreign Secretary David Miliband [official profile] should have requested that the US release classified information regarding Mohamed's treatment in Guantanamo Bay [JURIST news archive] and Morocco after US President Barack Obama [official profile] took office, noting that Obama's recent release [JURIST report] of CIA interrogation memos made it "self-evident" that Obama's torture and detention policy differs from that of the Bush administration. Lawyers for Mohamed applauded [press release] the court's position, calling for the British and US governments to unambiguously explain whether any security threats exist by declassifying the information.

Mohamed asked the High Court to reconsider the publication of a number of paragraphs from a summary describing the conditions and circumstances of his imprisonment that were redacted from the High Court's August 2008 ruling [JURIST report] that the UK Foreign Office must turn over evidence essential to Mohamed's defense. Mohamed's lawyers have claimed that the redacted information has also been withheld from Obama [JURIST report]. The court found in February that US authorities threatened to alter or suspend intelligence sharing operations if the information were released, a claim that Miliband immediately denied [JURIST reports]. The court agreed to reopen the case after Mohamed's lawyers challenged the order that the torture evidence remain classified. In March, UK government's independent reviewer of terror laws called for a judicial inquiry into British complicity in US rendition and torture, and UK Attorney General Janet Scotland announced a police investigation [JURIST reports] into claims that an agent of the country's MI5 [official website] intelligence service took part in the allegedly abusive interrogation of Mohamed. Mohamed asserts that after he was arrested in Pakistan and turned over to US officials, he was then transferred to Moroccan agents who tortured him. He was later transferred to Guantanamo Bay in 2004, and was returned to the UK [JURIST report] in February following seven years of detention.

[JURIST] The US Senate Select Committee on Intelligence [official website] on Wednesday released a report [text] by the Department of Justice (DOJ) [official website] indicating that former attorney general John Ashcroft and former secretary of state Condoleezza Rice in 2002 approved the use of waterboarding and other extreme interrogation techniques used by CIA agents against Guantanamo Bay [JURIST news archives] detainees. According to the report, Rice approved of the methods as a matter of policy while she was serving as national security adviser, and Ashcroft later approved of the legality of the techniques:

On July 17, 2002, according to CIA records, the Director of Central Intelligence (DCI) met with the National Security Adviser, who advised that the CIA could proceed with its proposed interrogation of Abu Zubaydah. This advice, which authorized CIA to proceed as a policy matter, was subject to a determination of legality by OLC...

On July 24, 2002, according to CIA records, OLC orally advised the CIA that the Attorney General had concluded that certain proposed interrogation techniques were lawful and, on July 26, that the use of waterboarding was lawful. OLC issued two written opinions and a letter memorializing those conclusions on August 1, 2002.

[JURIST] California Attorney General Jerry Brown [official website] said [opinion letter, PDF] Wednesday that portions of Proposition 209 [text], an amendment to the California Constitution [text] banning the use of affirmative action for state hiring, contracting, or university admission, may violate the US Constitution. Brown made the statement in a letter to the Supreme Court of California [official website] regarding the case of Coral Construction v. City and County of San Francisco [case materials]. The case concerns a plan by the city of San Francisco designed to increase the participation of minority owned businesses in state contracting deals. The plan had been struck down [JURIST report] by the San Francisco Superior Court [official website] in 2004 as being in violation of Proposition 209. In his letter, Brown said portions of the amendment may be unconsitutional under the Equal Protection Clause of the Fourteenth Amendment [LII backgrounders]:

...to the extent that [article I,] section 31 [(Proposition 209)] is interpreted more broadly to bar race- or gender-conscious programs that would be permissible under the Fourteenth Amendment, it violates the Equal Protection Clause of the federal Constitution... To that extent, section 31 would create an unequal political structure based on race and gender that is not narrowly tailored to achieve a compelling governmental interest.

Although section 31 impacts legislation that may be in the interest of people of color and women, and alters the established political process with respect to such legislation ...the Supreme Court would not find section 31 to be invalid... to the extent it merely adopts the proscriptions of the federal Equal Protection Clause. However, to the extent that section 31 bars race- or gender- conscious programs that would be permissible under the Fourteenth Amendment, it restructures California’s political system regarding affirmative action in a way that unequally burdens women and members of racial or ethnic groups that have traditionally been subjected to discrimination. Thus... it would violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

It is unclear precisely what governmental interest section 31 was intended to serve. If it is the interest in protecting all Californians from discrimination based on race or gender, that is concededly a compelling governmental interest. However, there appears to be no factual basis to support a governmental interest in denying preferences that are permissible under the Fourteenth Amendment. Ironically, by effectively disadvantaging racial minorities and women in the political process, 7 without an evident compelling governmental reason for doing so, section 31 seems to accomplish the very evil it purported to eliminate, viz. racial and gender discrimination.

[JURIST] The Connecticut General Assembly [official website] on Wednesday approved a bill [HB 7395 materials] granting same-sex couples [JURIST news archive] the right to marry. The legislation codified the October ruling [opinion, PDF; JURIST report] by the Connecticut Supreme Court [official website], which held that the Connecticut Constitution [text] requires that same-sex couples be allowed to marry. The Connecticut Senate voted 28-7 to approve the bill, while the state's House of Representatives approved it by a vote of 100-44. The bill would turn all previous civil unions into marriages starting in October 2010. An amendment [News Times report] was also included with the legislation that allows religious groups to deny services and goods to same-sex couples for weddings and other functions. Governor M. Jodi Rell [official website] has said she will sign the legislation [Courant report].

If approved, the legislation would make Connecticut the second state to officially sanction same-sex marriage via a vote of the legislature. Vermont [JURIST report] was the first state to do so earlier this month. Two other states, Massachusetts and Iowa [JURIST reports], have also approved same-sex marriages through a high court ruling. California [JURIST news archive] had allowed same-sex marriages until November 2008, when Proposition 8 passed 52-48.

[JURIST] A judge in the US District Court for the District of Columbia [official website] ordered [text, PDF] Wednesday that Afghan Guantanamo Bay [JURIST news archive] detainee Mohammed Jawad [ACLU materials; JURIST news archive], detained since he was a teenager, be allowed to challenge his detention in federal courts without delay. The judge denied the Justice Department's motion to dismiss or delay [text, PDF] a challenge to Jawad's case that had objected to Jawad's habeas petition because of pending charges that had already been referred to a military commission. According to the judge, the suspension of such proceedings has the result that "[detainees] cannot exhaust their criminal proceedings without suffering delay." The order set a status conference for Jawad on April 27 and cited prior case precedents that require "prompt 'adjudication' of Guantanamo detainee's habeas cases" such as the US Supreme Court's July ruling in Boumediene v. Bush [opinion, PDF; JURIST report].

The US Court of Military Commission Review (USCMCR) [official website] in February granted [order, PDF; JURIST report] a government request [motion, PDF] for a 120-day continuance on an intermediate appeal in its case against Jawad. Jawad's trial was initially delayed [JURIST report] in December to give prosecutors more time to appeal the exclusion of his confession, which was deemed to have been coerced. The original military prosecutor of the case quit the military commission in September citing conscience reasons. Jawad has been charged [charge sheet, PDF; JURIST report] with attempted murder and intentionally causing serious bodily injury for his alleged role in a December 2002 grenade attack in Kabul that injured two US soldiers and an Afghan translator, and was reportedly only 15 years old at the time. In May 2008, Jawad moved [JURIST report] to have all charges against him dismissed, alleging that he has been tortured in US custody and subjected to the so-called "frequent-flier program," in which certain inmates are moved between cells at two to four hour intervals in an attempt to cause physical stress through sleep deprivation.

[JURIST] The US Department of Justice (DOJ) [official website] has filed a motion to dismiss [text] a lawsuit brought against Iran by hostages from the 1979 hostage situation [backgrounder] in Tehran. The class-action lawsuit, brought by from former hostages Charles Scot, David Roeder, Don Sharer, and the family of Barry Rosen, seeks $6.6 billion in damages. The DOJ argued in their motion, filed Tuesday, that the Algiers Accords [text, PDF] precluded lawsuits against Iran in regards to the hostage situation. The plaintiffs argue that section 1083 of the National Defense Authorization Act of 2008 [materials] allows them to bring private lawsuits against foreign governments that engage in terrorism. The DOJ responded that:

While Section 1083 may create a private right of action against foreign governments like Iran for other terrorist acts, it stops far short of creating a private right of action for claims arising out of the 1979 hostage taking. Because of the Court’s dismissal of plaintiffs’ prior suit, Congress was well aware that only a clearly expressed abrogation of the Algiers Accords would permit a cause of action arising out of the 1979 hostage taking.

[JURIST] The Constitutional Court of Moldova [official website] on Wednesday validated the recount results of the April 5 election in which the Communist Party won 60 of the 101 parliamentary seats. The court issued two acts [MOLDPRES report], which cannot be appealed and are official as of the day adopted, confirming the results and validating the terms of the new members of parliament. According to the recount, the country's Communist Party obtained 49.98 percent of the votes out of a 57.4 percent voter turnout. The parliament must elect the new president with 61 votes, and if it is unable to do so within three attempts, the Moldovan Constitution [text] mandates that parliament be dissolved and general elections held again. The European Council Presidency [official website] called on [press release] the Moldovan government and the opposition "to start a dialogue that would restore calm in Moldova." Amnesty International [advocacy website] has urged Moldovan authorities to protect detainees [press release] blamed for the electoral riots from torture and ill-treatment by the police.

Earlier this month, Moldova's Constitutional Court ordered [JURIST report] the nation's Central Election Commission (CEC) to conduct a recount of the controversial parliamentary election. Opposition groups claimed that falsified voter registration rolls allowed government officials to fabricate votes, and boycotted the recount [Infotag report], opting instead to check voter lists for irregularities. The CEC dismissed the claims and decried attempts [MOLDPRES report] of opposition members to submit documents alleging proof of electoral fraud only minutes before official results [press release] were announced Tuesday. Some international groups, including the Organization for Security and Co-operation in Europe (OSCE) [official website], had approved [OSCE report, PDF] the voting process as being generally fair.