[JURIST] The US Senate Judiciary Committee [official website] voted 11-8 Thursday to approve [press release] legislation [S 1692 materials] reauthorizing three provisions of the USA Patriot Act [JURIST news archive] set to expire at the end of the year. The portions of the act to be renewed allow federal authorities to conduct "roving" wiretaps, compel the production of business, medical and library records, and designate suspects as "lone wolf" agents of a foreign power. The bill would also impose greater oversight on the FBI's use of its surveillance powers and would cause several provisions of the act to expire after another four years. At the opening of Thursday's executive business meeting [materials], bill sponsor and committee chairman Patrick Leahy (D-VT) [official website] said:
I remain mindful of our responsibility to ensure both security and liberty as we proceed. All of us know that the threats to Americans' safety are real and continuing. Our bill will provide the tools that are being used to protect us, while increasing the protections of our vital constitutional rights, as well. The bill we consider today will serve to extend the authorization of the three expiring Patriot Act provisions requested by the administration. We also provide for increased Government accountability requiring audits and reviews of how these vast authorities are being used.
Last week, a US Department of Justice (DOJ) official told the committee that the Obama administration supports the reauthorization [JURIST report] of the expiring provisions. The 2009 expiration date on Section 215, the "business records" provision, and Section 206, the "roving wiretap" provision, were set in March 2006 when the 16 key provisions [DOJ report] of the Patriot Act were renewed and 14 made permanent [JURIST report]. Additional civil liberties safeguards built into the renewal included allowing recipients of Section 215 subpoenas to challenge the accompanying gag order. In the wake of these amendments, the ACLU withdrew a lawsuit challenging Section 215 [JURIST report]. Despite the amendments, a federal judge ruled last year that imposing gag orders on recipients of NSLs is unconstitutional without judicial review [JURIST report]
[JURIST] The UN Security Council [official website] agreed Wednesday to reschedule October's meeting on the Middle East in order to discuss the final report [JURIST report] of the UN Fact Finding Mission on the Gaza Conflict [official website]. The meeting was pushed forward [BBC report] at the request of Libyan diplomats, with the support of many Arab members. US Ambassador Alejandro Wolff [official profile] said that the Council had only agreed that the meeting would be moved forward from the October 20 to the 14, and that all delegations are free "to raise whatever issue they think are pertinent." Reiterating US and Israeli criticism [JURIST report] of the report's conclusions, Wolff said that the proper venue to discuss the report was the UN Human Rights Council (UNHRC) [official website], which postponed [JURIST report] further discussion of the report until March.
Last month, Richard Goldstone, head of the Gaza mission, presented his findings [JURIST report] to the UNHRC. The mission began its field operations in Gaza in June, entering Gaza through Egypt's Rafah crossing after Israel announced that it would not cooperate with the investigation, and concluded hearings [JURIST reports] in July. Goldstone was appointed to head the investigation [JURIST report] in April, amid strong criticism [JURIST report] from Israel. The probe followed a previous report [text, PDF; JURIST report], authored by UN Special Rapporteur Richard Falk, which criticized Israel for failing to take adequate precautions to distinguish between civilians and combatants in their offensives in the region. Both Israel and the US criticized [DOS briefing] the report, calling the rapporteur's views "anything but fair." In April, an internal Israeli military investigation found that war crimes had not been committed [JURIST report] in the offensive despite individual reports by Israeli soldiers [Haaretz report]. Israel has already disputed [JURIST report] a previous report to the UNHRC that accused it of human rights violations.
[JURIST] The Australian public wants legislative protections for human rights in their country, according to a government report [materials] released Wednesday by the Human Rights Consultation Committee [official website]. According to the report, Australians believe that their country adequately protects human rights, but that further protections could be extended to a number of vulnerable groups. Among those groups that require extra protections, citizens felt that the elderly and those with mental illness, particularly in areas of the country with significant indigenous populations, were most likely to fall through the cracks of Australia's human rights systems. The Committee's recommendation was that Australia adopt a federal human rights act:
that recognises and fully protects the non-derogable civil and political rights and that offers a process for engagement by all three branches in government when parliament legislates to set limits on other civil and political rights could constitute a useful, cost-effective means of repairing some of the holes in Australia's patchwork of rights protection.
The government, despite releasing the report, has made no official statement, while advocacy groups have begun a vigorous debate [Brisbane Times report] on the issue.
Earlier this year, Australia endorsed [JURIST report] the UN Declaration on the Rights of Indigenous peoples, in an effort to continue to "close the gap" between the indigenous and non-indigenous people of Australia. The topic of human rights, particularly with regard to Australia's indigenous people, was a prominent portion of Prime Minister Kevin Rudd's election platform. In February 2008, Rudd released a statement apologizing [text] for Australia's past treatment of indigenous population. Australia's endorsement of the UN Declaration represented a significant change from the attitudes of former Prime Minister John Howard, who said [speech text] that the declaration would result in a national attitude of "victimhood".
[JURIST] The US Department of Justice (DOJ) [official website] is investigating IBM for allegations of antitrust violations stemming from their sales of mainframe computers, according to Wednesday media reports. Competitors allege that IBM is dominating the mainframe computer market [NYT report] by not allowing its operating systems to run on non-IBM mainframes. The Computer and Communications Industry Association (CCIA) [trade website] maintains [backgrounder text] that the effects of IBM's actions have "walled off vital corporate and government applications and data from the rapidly evolving high-end server market." The trade group argues that limiting the operating system's use to one platform presents problems and "retards innovation." A DOJ spokesperson had no comment on the investigation.
In January, T3 Technologies [corporate website] filed a complaint [press release; CCIA backgrounder] against IBM with the European Commission alleging that IBM refused to sell their operating system to T3's customers. T3's US suit was recently dismissed in a New York District Court, although the company plans to appeal. In August, a district court dismissed [JURIST report] a consumer class action antitrust lawsuit against telecommunications company Qualcomm [corporate website] that alleged the company has used the licensing of CDMA [industry backgrounder] related patents to adversely affect competition.
[JURIST] The US Senate Judiciary Committee [official website] was urged Wednesday to adopt measures [hearing materials; recorded video] to address recent Supreme Court decisions interpreting the federal Age Discrimination in Employment Act [text]. Chairman Patrick Leahy (D-VT) [official website] expressed concern [testimony] that protections put in place by the ADEA would be undermined by the Court's June decision in Gross v. FBL Financial Services [JURIST report], which found that age must be the "but for" cause of dismissal in order to prove discrimination. Leahy said that the decision may allow employers to dismiss older workers "so long as they cloak it with other reasons." Pennsylvania State University law professor Michael Foreman told the committee [testimony, PDF] that the decision:
requires employees who are victims of age discrimination to meet a higher burden of proof than someone alleging discrimination based upon race, color, religion, sex, or national origin under Title VII. This result runs contrary to our national commitment to equality. Congress should thus take positive steps to ensure that our civil rights and employment laws protect all American workers.
However, employment lawyer Michael Fox said that the Gross decision was consistent [testimony, PDF] with the adoption of the ADEA independent of the more liberal Title VII [text] rules addressing race and gender and that Congress "meant from the beginning [for] the enforcement mechanisms of the two statutes [to be] dramatically different." The committee also addressed the Court's 2001 decision in Circuit City Stores, Inc. v. Adams [opinion text], which validated the use of binding arbitration provisions in pre-employment contracts. Leahy said that when Congress enacted the Federal Arbitration Act [text], it meant to provide sophisticated businesses with an alternative dispute mechanism, and "never intended this law to become a hammer for corporations to use against their employees." Council for Employment Law Equity Mark de Bernardo disagreed [testimony, PDF], saying that arbitration is an "alternative to costly, time-consuming, deleterious, and relationship-destructive litigation" which has been supported by both management and organized labor.
In January, Congress passed the Lilly Ledbetter Fair Pay Act of 2009 [JURIST report], which extended the deadline for employees to sue their employers for unequal pay discrimination, and effectively overturned the Supreme Court's ruling in Ledbetter v. Goodyear Tire & Rubber Co. [opinion, PDF; JURIST report]. The initial lawsuit was brought by Lilly Ledbetter, a 19-year Goodyear employee, who alleged that she received less pay than male counterparts because of gender discrimination. The Supreme Court upheld the US Court of Appeals for the Eleventh Circuit's reversal [opinion, PDF] of a district court decision awarding Ledbetter $360,000 in damages.
[JURIST] Members of the Homeland Security Appropriations Conference Committee [list, PDF] reached an agreement [text, PDF] Wednesday that would allow Guantanamo Bay [JURIST news archive] detainees to be transferred to the US for trial. The compromise would allocate $42.78 billion for the Homeland Security appropriations bill [HR 2892 materials] and would stipulate that current detainees may be transferred to the US for prosecution after information is disclosed to Congress. Officials would have to submit a plan to Congress that details risks, costs, and legal rationale and verifies the attorney general's certification for each detainee to be transferred. In order to close the facility, the agreement would require the president to submit a report to Congress detailing the disposition of each current detainee. Ranking committee minority member Hal Rogers (R-KY) [official website] called the agreement "a fairly reasonable compromise" but expressed his concerns [statement text] about transferring the detainees to US soil. Committee Chairman David Price (D-NC) [official website] said that the agreement was substantial progress [press release] toward strengthening Homeland Security. The appropriations bill still needs final approval from Congress before being presented to the president.
Earlier this week, US Attorney General Eric Holder [official profile] told reporters that the Obama administration may miss its January deadline for closing the military prison at Guantanamo Bay, echoing prior statements [JURIST reports] by top administration officials. Last week, the House passed a non-binding motion [JURIST report] to instruct the conferees to prohibit the transfer of detainees to the US for prosecution or incarceration. The motion, introduced by Rogers, instructed House committee members to insist on such prohibitions during negotiations. In June, the House approved a spending bill [JURIST report] that denied the administration $60 million requested to close the prison. The Senate amended a supplemental appropriations bill [JURIST report] in May to delay a similar $80 request until a detailed plan was made available.
[JURIST] A US military judge on Wednesday dismissed the military lawyer for Canadian Guantanamo detainee Omar Khadr [DOD materials; JURIST news archive] in accordance with Khadr's request. During Wednesday's brief hearing, Col. Patrick Parrish accepted the resignation [Miami Herald report] of Navy Lieutenant Commander William Kuebler [JURIST news archive], who will be replaced by former federal prosecutors and civilian lawyers, Barry Coburn and Kobie Flowers [professional profiles] of the Washington, DC firm Coburn & Coffman PLLC [firm website]. Court affidavits obtained by the Toronto Star allegedly detail [Toronto Star report] that Kuebler's performance had become detrimental to the defense, seeming paranoid and reckless, and going to the extent of witholding information from the legal team and from Khadr. Khadr asked to have his US military lawyers dismissed [JURIST report] in June for arguing and disagreeing among themselves. The disputes among the members of Khadr's US defense team arose from chief defense counsel Colonel Peter Masciola's efforts to dismiss [JURIST report] Kuebler as lead counsel for Khadr after Kuebler filed a formal complaint against Masciola alleging a conflict of interest. Khadr's case will resume on November 16, at the end of a review of the military commission system by the Obama administration.
The Supreme Court of Canada [official website] agreed last month to consider the Canadian federal government's appeal [JURIST report] of a Federal Court of Appeal [official website] decision [judgment, PDF; JURIST report] ordering the government to press for Khadr's release and repatriation. In August, the president of the Canadian Bar Association urged [JURIST report] the Canadian government to seek the repatriation of Khadr, days after the Federal Court of Appeal upheld an April lower court ruling [judgment, PDF, JURIST report] ordering the Canadian government to advocate for his return. Khadr has allegedly admitted to throwing a hand grenade that killed a US soldier in Afghanistan, and was charged [JURIST reports] in April 2007 with murder, attempted murder, conspiracy, providing material support for terrorism, and spying.
[JURIST] The Italian Constitutional Court [official website, in Italian] on Wednesday struck down [press release, DOC, in Italian] the 2008 law granting immunity from prosecution to the four highest officials of the country, including Prime Minister Silvio Berlusconi [official profile, in Italian; BBC profile], finding it unconstitutional. The high court ruled 9-6 against the law, basing the decision on principles contained in article 3 and article 138 [text, in Italian] of the Italian Constitution, which provide that all citizens are equal before the law, and that granting immunity of public officials requires a constitutional change rather than an ordinary law. The 2008 law, known in Italy as Lodo Alfano, was a second attempt to block prosecution against Berlusconi by drafting legislation granting him immunity. The court's decision means that some of the four cases against Berlusconi that were blocked by the law could be reopened, including one involving his former lawyer, British barrister David Mills [JURIST news archive]. While members of the opposition welcomed [Libero report, in Italian] the ruling, members of the center-right planned to continue backing Berlusconi.
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