[JURIST] A three-judge panel of the US Court of Appeals for the DC Circuit [official website] rejected [opinion, PDF] Friday a lawsuit by four UK citizens and former Guantanamo Bay [JURIST news archive] detainees against former US defense secretary Donald Rumsfeld [JURIST news archive] and other military officials. The court's opinion in affirmed in part district court decision dismissing illegal detention and mistreatment charges under the Alien Tort Statute [text], the Geneva Conventions [ICRC materials], and the Fifth and Eighth Amendments [text] of the US Constitution against Rumsfeld and other military officials, and reversed the lower court's decision to reject a motion for dismissal of two additional charges against the defendants. The ruling comes after the US Supreme Court [official website; JURIST news archive] vacated and remanded to the district court [JURIST report] the DC Circuit's 2008 decision in the same case, which also dismissed the lawsuit against Rumsfeld and the other defendants. In vacating and remanding the first case, the Supreme Court ordered the district court to reexamine the lawsuit in light of the Court's July decision in Boumediene v. Bush [opinion, PDF; JURIST report]. While the district court found that Boumediene applied to two of the charges, the DC Circuit rejected the lawsuit on the grounds that the actions taken by the defendants were not illegal at the time they were committed. Judge Janice Rogers Brown wrote:

There is another reason why we should not decide whether Boumediene portends application of the Due Process Clause and the Cruel and Unusual Punishment Clause to Guantanamo detainees – and it is on this ground we will rest our decision on remand. The doctrine of qualified immunity shields government officials from civil liability to the extent their alleged misconduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." ...

Our vacated opinion explained why qualified immunity insulates the defendants from plaintiffs’ Bivens claims. ... Boumediene does not affect what we wrote. No reasonable government official would have been on notice that plaintiffs had any Fifth Amendment or Eighth Amendment rights. At the time of their detention, neither the Supreme Court nor this court had ever held that aliens captured on foreign soil and detained beyond sovereign U.S. territory had any constitutional rights — under the Fifth Amendment, the Eighth Amendment, or otherwise. The Court in Boumediene recognized just that: “It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution.” [citation omitted]

[JURIST] JURIST has been nominated in New York for a prestigious Webby Award as the best Law website of 2009. By virtue of being a nominee, JURIST is eligible for the Webby People's Voice award in addition to the judge's award. We hope you'll support JURIST and our staff of dedicated law students by voting for us! Polls close Thursday, April 30.

Here's how to vote:

1. Register to vote: click here;

2. Once you register, an activation code will be sent to your e-mail (check to make sure it's not misdirected to your "junk" folder);

3. Log on here and click on "Website: Vote now";

4. Scroll down to "Society" and click on the "Law" category;

5. Vote for JURIST!

[JURIST] Fijian Attorney General Aiyaz Sayed Khaiyum said Friday that the government would name new judges [RNZ audio] to replace those discharged following the suspension [JURIST report] of the country's constitution by President Ratu Josefa Iloilo [official profile] two weeks ago. Speaking to Radio New Zealand (RNZ), Khaiyum said that the Fiji government anticipates having judges appointed by next week [AP report], although the country's high court would likely remain closed for close to one month. Following the suspension of the constitution, Iloilo dismissed the judges and imposed restrictions on domestic and international media outlets. Iloilo also reappointed the head of the Fijian military Commodore Josaia Voreqe "Frank" Bainimarama [BBC profile] as prime minister [JURIST report], a move which was condemned [ABC report] by the UN and members of the Australian government, including Australian Prime Minister Kevin Rudd [official profile].

Last week, UN High Commissioner for Human Rights Navi Pillay urged Iloilo to reinstate the deposed judges [JURIST report]. Earlier that week, members of Fiji's Law Society [organization website] called for deposed judges to remain in office [JURIST report] and resist the current military regime's attempts to oust them. Turmoil has built since the Court of Appeal of Fiji declared [JURIST report] that the appointment of the military government following a 2006 coup d'etat [JURIST report] that ousted Prime Minister Laisenia Qarase [BBC profile] was unconstitutional. Concerns about the constitutional suspension have also been expressed [statement text] by UN Secretary-General Ban Ki-moon and US State Department [official website] spokesperson Richard Aker, who said that it was a step backwards [press release] for the country, and called on Fiji to continue to recognize rights outlined in the suspended constitution.

[JURIST] North Korean state media Korean Central News Agency (KCNA) [media website] reported Friday that two US journalists arrested in March will stand trial. While the charges remain unclear, it is possible the journalists will face charges of espionage [AP report]. According to the South Korea Ministry of Unification [official website], espionage charges in North Korea carry at least a five year prison sentence in labor camps. There are concerns that North Korea will use the journalist as leverage [BBC report; JURIST comment] in international negotiations as North Korean regime has been the subject of considerable international pressure over its refusal to fully disclose its past nuclear activity. US State Department spokesperson Robert Wood said [press briefing] Friday that, "we continue to call on the North Koreans to release the two Americans so they can be returned to their families. We’ll continue to work this issue through diplomatic channels."

The two journalists were detained in March 2008 [JURIST report] while allegedly attempting to enter the country illegally from China. Laura Ling [professional website] and Euna Lee were reporting on North Korean refugees in China for Current TV [media website] when they allegedly crossed the border [Yonhap report]. An investigation by North Korean officials allegedly concluded that the journalists had entered the country illegally [AFP report] and that there was enough evidence to charge [JURIST report] them. US Secretary of State Hillary Clinton [official profile; JURIST news archive] has reportedly been involved in talks [Chosun Ilbo report] regarding the reporters.

[JURIST] Thai Prime Minister Abhisit Vejjajiva [BBC profile] lifted the emergency rule decree [text, PDF] Friday and promised constitutional reforms to bring stability back to Thailand after months of protests and violence. The state of emergency [JURIST report], which went into force on April 11, was an attempt to control the actions of Red Shirts, supporters of ex-prime minister Thaksin Shinawatra [BBC profile; JURIST news archive], and members of the United Front for Democracy against Dictatorship party. Abhisit has given permission to begin an inquiry into the violent clashes, in which two died and more than 100 were injured. The search also continues for Shinawatra himself, who was last sighted in Liberia [Reuters report] meeting with Vice President Joseph Boakai on Friday to discuss business opportunities. Shinawatra, whose Thai passport has been revoked, is traveling on a Nicaraguan passport and avoiding nations where he may be extradited to Thailand to face two years imprisonment on a conflict of interest charge. A warrant for his arrest [JURIST report] was issued by a Thai court last week. In Bangkok, the Red Shirts have planned a protest [Bangkok Post report] for Saturday.

Abhisit took over as prime minister in December, after the Constitutional Court of Thailand [official website, in Thai] ordered the dissolution [JURIST report] of the ruling People's Power Party (PPP) [party website, in Thai], and banned then-prime minister Somchai Wongsawat [Nation profile] from politics for five years as the result of an election fraud investigation. Shinawatra, ousted as prime minister [JURIST report] in a 2006 military coup, was convicted on corruption charges [JURIST reports] by the Supreme Court of Thailand in October.

[JURIST] White House Press Secretary Robert Gibbs said Thursday that the Obama administration opposes the formation of an independent commission to investigate Bush administration interrogation techniques. During a press conference aboard Air Force One on Wednesday, Gibbs said that the president had not left the door open to a commission [press briefing] "because what he's saying - he was asked, what about these commissions, and he said if Congress were to decide to set one up, it has to be done outside of the realm of politics." On Thursday, Gibbs clarified that statement [press briefing] by saying that after internal White House discussion, "the President determined that the concept [of an independent commission] didn't seem altogether that workable in this case" and that there was no evidence that the Department of Justice (DOJ) [official website] would not be able to handle the investigation.

In February, chairman of the US Senate Judiciary Committee [official website] Patrick Leahy (D-VT) [official profile; JURIST news archive] called for the creation of a truth commission [JURIST report] to investigate the national security policies of the Bush administration. The committee held a hearing [JURIST report] on the formation of a truth commission in March. Senate Majority Leader Harry Reid (D-NV) [official website] has said that the Senate Intelligence Committee should first be allowed to complete an ongoing investigation.

[JURIST] A Spanish court assigned a new judge Thursday to decide whether to prosecute members of the Bush administration behind the establishment of the Guantanamo Bay [JURIST news archive] detention center, a court spokesperson told CNN [CNN report]. Eloy Velasco will replace Baltasar Garzon [BBC profile; JURST news archive] in determining whether to seek legal action against former US attorney general Alberto Gonzales and six other Bush administration lawyers who are accused [complaint, PDF in Spanish; JURIST report] of sanctioning torture. Velasco was given the case after Garzon recommended that the provisional case be assigned to an investigating magistrate.

Last week, Spanish prosecutors announced that they would not recommend trying any of the named defendants [JURIST report] because they had not committed acts of torture. Garzon, famed for indicting Osama bin Laden and former Latin American dictator Augusto Pinochet [JURIST news archives], is well known for his involvement in high-profile investigations of terror and human rights cases under the universal jurisdiction principle. In February, Spain announced that it is considering legislation to limit [JURIST report] the the scope of universal jurisdiction to those cases that have a substantial link to the country or its citizens.

[JURIST] Four former Serbian policemen were convicted [BETA report] Thursday of the killing of 48 Albanian civilians in Suva Reka during the war in Kosovo [State Department backgrounder] in 1999. Their trial in a Serbian war crimes court began in October 2005 with eight men accused of rounding up and shooting [indictment, MHT] the civilians, including 46 members of one family, the Berishas. Former policemen Radojko Repanovic and Sladjan Cukaric each received 20 years in prison, while Miroslav Petkovic was sentenced to 15 years. Former State Security Department official Milorad Nisavic was also sentenced to 13 years. Former Police Special Unit Commander Radoslav Mitrovic, Nenad Jovanovic, and Zoran Petkovic were acquitted, though the Serbia War Crimes Prosecutor [official website] plans to appeal the acquittals [BBC report]. Advocacy group Humanitarian Law Center [advocacy website] decried the acquittals [press release, DOC], calling them "unjust for both the victims and the accused" and saying "there were no mitigating circumstances to justify such a low sentence" for Nisavic .

The convictions for the Suva Reka killings are the latest for war crimes committed during the Kosovo war. In October, former policeman Vaso Todorovic was convicted of crimes against humanity [JURIST report] for the capture and detention of 40,000 Bosnian Muslims in 1995. Earlier that month, four Bosnian Serbs were arrested for the killing [JURIST report] of 200 civilians in Koricanske Stijene. In 2006, former parliamentary leader Momcilo Krajisnik was sentenced to 27 years in prison [JURIST report] for the forced transfer, deportation, and persecution of non-Serbs. His sentence was later reduced to 20 years [JURIST report].

[JURIST] US Attorney General Eric Holder [official profile] on Thursday testified [webcast] in front of a House Appropriations subcommittee [official website] that he is willing to release as much information as possible in regards to interrogation techniques used on Guantanamo Bay [JURIST news archive] detainees. Holder said that the recent release of four CIA interrogation memos [JURIST report] was not being done selectively to advance a political agenda. Former vice president Dick Cheney had urged Holder [AP report] to release other memos that would reveal the information that was gained by the approved interrogation techniques. Congressman Frank Wolf (R-VA) [official website] echoed [statement] Cheney's request by asking if the "administration is suppressing additional memos that demonstrate the effectiveness of interrogation techniques as well as document Bush administration efforts to correct problems." Holder responded to the requests by stating that he was unaware of the other memos and that other agencies may have control over them. Holder was also questioned about the possible impending charges [JURIST report] against the officials who authored the memos. He responded by stating that, while he would not permit the "criminalization of policy differences," it was his duty to enforce the law against wrongdoers.

On Wednesday, the Senate Select Committee on Intelligence [official website] released a report [JURIST report] indicating that former attorney general John Ashcroft and former secretary of state Condoleezza Rice approved the use of harsh interrogation techniques in 2002. Earlier this week, President Barack Obama said that he was open the possibility of prosecuting [transcript] those who authorized harsh interrogation techniques, but that the decision would be up to Holder. Obama had previously said that he would not pursue prosecutions of CIA interrogators [statement], a pledge which drew sharp international criticism [JURIST report]. Earlier this month, House Judiciary Committee Chairman John Conyers (D-MI) [official website] released a final version of a report [JURIST report] calling on current Attorney General Eric Holder to appoint a special prosecutor to determine whether any criminal laws were violated. In March, Senator Patrick Leahy (D-VT) also called for an investigation [JURIST report] into Bush administration policies through the formation of a "truth commission."

[JURIST] The lawyer for Guantanamo Bay [JURIST news archive] detainee Rafik Alhami [NYT profile] filed suit [complaint, PDF] Thursday in the US District Court for the District of New Jersey [official website] alleging that Alhami was tortured before the Bush administration approved of the techniques. The suit claims [Star-Ledger report] that Alhami was kicked, punched, stripped naked, and threatened with dogs beginning in 2001 and continuing after his transfer to Guantanamo Bay in 2003. Last week, the Senated Armed Services Committee declassified a report [JURIST report] that indicated the enhanced interrogation techniques were not authorized until 2002. Alhami is being represented in the suit by Joshua and Mark Denbeaux [profiles], who have been involved in detainee rights for several years as members of the Guantanamo Bay Teach-In [advocacy website] at Seton Hall University School of Law.

Alhami's complaint is the latest in a number of allegations of torture performed at Guantanamo Bay. Earlier this month, Mohammed El Gharani alleged in a phone interview [JURIST report] with Al-Jazeera that he had been beaten to the point of having his teeth broken. Prior to El Gharani's claim, the Red Cross released a report [JURIST report] that stated doctors at Guantanamo Bay had violated codes of medical ethics by assisting in ill-treatment of detainees at the prison facility.

[JURIST] US Department of Justice (DOJ) [official website] officials said Thursday that they would release at least 44 photographs [letter, PDF] "depicting the treatment of detainees in Iraq and Afghanistan," pursuant to a court order. In a letter sent to Judge Alvin Hellerstein of the US District Court for the Southern District of New York [official website], the DOJ said it would comply with his 2005 order [text, PDF] to release 21 photos, taken by an investigator at Abu Ghraib [JURIST news archive] prison and later provided to the Army's Criminal Investigative Division [official website] after the Department of Defense (DOD) [official website] lost a challenge to a Freedom of Information Act (FOIA) [text] request brought by the American Civil Liberties Union (ACLU) [advocacy website]. The DOD subsequently appealed to the US Court of Appeals for the Second Circuit [official website], and lost [opinion, PDF; JURIST report]. In the letter to Hellerstein, the DOJ informed him that they would not appeal their case to the Supreme Court, but instead would comply fully with the FOIA request and said:

the government is also processing for request a substantial number of other images contained in Army CID reports that have been closed during the pendency of this case; these other images will be processed consistent with the court's previous ruling on responsive images in this case.

[JURIST] A Canadian Federal Court ruled [judgment, PDF] Thursday that Prime Minister Stephen Harper [official website] must advocate for the repatriation of Guantanamo detainee Omar Khadr [DOD materials; JURIST news archive]. Khadr claims that the Canadian government's refusal to request repatriation from the US violates the Canadian Charter of Rights and Freedoms [text]. The Honourable Mr. Justice O'Reilly found that Khadr's rights under section 7 of the charter were infringed by the Canadian government by refusing to request his return. Section 7 provides that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." O'Reilly found that the Canadian government:

had a duty to protect Mr. Khadr from being subjected to any torture or other cruel, inhuman or degrading treatment or punishment, from being unlawfully detained, and from being locked up for a duration exceeding the shortest appropriate period of time.

The ongoing refusal of Canada to request Mr. Khadr’s repatriation to Canada offends a principle of fundamental justice and violates Mr. Khadr’s rights under s. 7 of the Charter. To mitigate the effect of that violation, Canada must present a request to the United States for Mr. Khadr’s repatriation to Canada as soon as practicable