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Legal news from Tuesday, July 6, 2010




DOJ files lawsuit against controversial Arizona immigration law
Sarah Miley on July 6, 2010 4:05 PM ET

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[JURIST] The US Department of Justice [official website] on Tuesday filed suit [complaint, PDF; supporting brief, PDF] in the US District Court for the District of Arizona [official website] seeking to permanently enjoin the state's controversial new immigration law [SB 1070 materials; JURIST news archive]. The complaint states that the law is preempted by federal law and therefore violates the Supremacy Clause [text] of the US Constitution. The DOJ argues that the Constitution and federal law "do not permit the development of a patchwork of state and local immigration policies throughout the country." The agency also claims that the federal government has preeminent authority to regulate immigration matters and that the enforcement of the Arizona law is counterproductive to the national immigration policy.
S.B. 1070 pursues only one goal - "attrition" - and ignores the many other objectives that Congress has established for the federal immigration system. And even in pursuing attrition, S.B. 1070 disrupts federal enforcement priorities and resources that focus on aliens who pose a threat to national security or public safety. If allowed to go into effect, S.B. 1070's mandatory enforcement scheme will conflict with and undermine the federal government’s careful balance of immigration enforcement priorities and objectives. For example, it will impose significant and counterproductive burdens on the federal agencies charged with enforcing the national immigration scheme, diverting resources and attention from the dangerous aliens who the federal government targets as its top enforcement priority. It will cause the detention and harassment of authorized visitors, immigrants, and citizens who do not have or carry identification documents specified by the statute, or who otherwise will be swept into the ambit of S.B. 1070's "attrition through enforcement" approach. ... And it will interfere with vital foreign policy and national security interests by disrupting the United States' relationship with Mexico and other countries.
The suit was filed against the State of Arizona and Governor Jan Brewer (R) [official website], who previously responded to reports of a federal legal action [JURIST report] saying that the lawsuit would be "outrageous" and a waste of federal funds that would be better spent on national immigration reform. The legislation was signed into law [JURIST report] by Brewer in April and is set to take effect July 29.

The Arizona law criminalizes illegal immigration and requires police officers to question an individual's immigration status if the officer has a "reasonable suspicion" to believe an individual is in the country illegally. It has been widely criticized in regard to the law's constitutionality and alleged "legalization" of racial profiling. Last week, the American Bar Association (ABA) [official website] filed an amicus curiae brief [JURIST report] urging the federal district court in Arizona to block the enforcement of the state's immigration law. The brief was filed in support of a class-action lawsuit [JURIST report] led by the American Civil Liberties Union (ACLU) [advocacy website]. The Mexican government has also filed an amicus curiae brief [JURIST report] supporting the ACLU suit, claiming a substantial interest in ensuring its "bilateral diplomatic relations" with the US remain "transparent, consistent and reliable, and not frustrated by the actions of individual US states." The government also claims an interest in ensuring that its citizens are "accorded human and civil rights when present in the US in accordance with federal immigration law." Brewer is also currently facing federal lawsuits filed by the National Coalition of Latino Clergy and Christian Leaders and several Tuscon police officers [JURIST reports], who claim they can not properly implement the law without racially profiling.




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UK panel to investigate torture allegations
Drew Singer on July 6, 2010 1:27 PM ET

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[JURIST] UK Prime Minister David Cameron [official website] said Tuesday that he will create a panel to investigate claims that British government agents were complicit in the torture of terrorism suspects held overseas. The inquiry comes after 12 ex-detainees brought civil cases against the government, claiming that British agents took part in their mistreatment while they were held in prisons in foreign countries, including Pakistan and Morocco. The UK will ask the ex-detainees to drop their lawsuits [AP report] in exchange for possible compensation and a promise that the inquiry will fully investigate their claims. Cameron said that he hopes to start the investigation by the end of the year, once a separate investigation [JURIST report] into the actions of MI5 and MI6 agents at Guantanamo Bay [JURIST news archive] concludes, and to have a full report back within the next 12 months. Cameron named former judge Peter Gibson [press release], who is currently serving as the nation's Intelligence Services Commissioner, to lead the three-member panel. Gibson, the former Lord Justice of Appeal and Chairman of the Law Commission, is in his second term as Intelligence Services Commissioner, whose job is to review actions taken by the Secretary of State and by British intelligence under the Intelligence Services Act of 1994 [text]. He has yet to determine whether parts of the investigation can be held publicly.

The British government indicated last week that it will issue a new set of regulations regarding the use of information obtained via torture [JURIST report]. The announcement came as part of the government's defense against a lawsuit filed by the human rights group Reprieve [advocacy website], which has been seeking a review of the country's torture policy. A UK High Court judge agreed that the country's policy must be reviewed [press release], but indicated that because lawyers for the government promised new guidelines would be released shortly, the court would take no immediate action. Similar claims of complicity were made against the government in a new report [materials] released last week by Human Rights Watch (HRW) [advocacy website]. According to HRW, intelligence services in France, Germany and the UK lack proper oversight of intelligence information that is received from countries that torture.




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US soldier charged for releasing classified video, documents
Sarah Miley on July 6, 2010 1:06 PM ET

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[JURIST] The US Army [official website] on Tuesday formally charged [press release] Pfc. Bradley Manning [advocacy website] for leaking a controversial classified video [YouTube video] of a 2007 US helicopter strike in Iraq and classified State Department [official website] documents. Manning faces two charges [charge sheet, PDF] under the Uniform Code of Military Justice (UCMJ) [text] for the transfer of classified information and exceeding his authorized computer access. Manning was detained in Kuwait [NYT report] in May after releasing the video, entitled "Collateral Murder," on Wikileaks [website]. The video was recorded in July 2007 by a US Apache helicopter gun-sight camera and shows several civilians, including two Reuters journalists, being gunned down by the helicopter in Baghdad, Iraq. Manning is also accused of releasing more than 150,000 classified State Department cables and a PowerPoint presentation. Wikileaks does not ask sources to identify themselves, but Manning was reported to authorities by former hacker Andrian Lamo, who learned of the leaks after forming an online friendship with the soldier. Due to the gravity of the charges, Manning's investigation could lead to a court-martial.

The prosecution of Manning has sparked heated debate between defenders and critics. Those who support Manning's actions Manning refer to him as courageous for acting as a whistleblower [advocacy petition] against government crime and corruption. He has been compared to famous US whistleblowers such as Frank Serpico and Daniel Ellsberg [personal websites], who leaked information regarding corruption in the New York Police Department and the Pentagon, respectively. Secretary of Defense Robert Gates [official profile] has criticized the video [WSJ report], claiming it provides the public a view of warfare "as seen through a soda straw." He noted that public attention was not drawn to what was discovered by US ground forces following the helicopter gunfire, including AK-47s and rocket-propelled grenade launchers. He also defended the reality of fighting terrorist organizations, which is made up of combatants who do not wear enemy uniforms.




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Israel soldiers to face disciplinary action over Operation Cast Lead
Hillary Stemple on July 6, 2010 12:27 PM ET

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[JURIST] The Israel Defense Forces (IDF) [official website] announced Tuesday that several Israeli soldiers will face disciplinary action [press release] for their role in the 2008-2009 Operation Cast Lead [GlobalSecurity backgrounder; JURIST news archive] in the Gaza strip. The announcement was made following an independent Israeli investigation [JURIST report] into the conflict, as well as the allegations contained in the Goldstone report [text, PDF]. The Goldstone report was the result of a UN Human Rights Council (UNHRC) [official website] fact-finding mission, which accused both IDF and Hamas [GlobalSecurity backgrounder] fighters of war crimes during the conflict. According to the IDF, more than 150 incidents were investigated, with action being taken against four soldiers. Three soldiers face disciplinary hearings for their actions and one will face criminal manslaughter charges for allegedly firing into a crowd of civilians who were waving a white flag. The other charges include allegations that civilians were used as human shields and that an air strike was ordered for an area close to a mosque. A criminal investigation has also been ordered into the bombing of a civilian housing complex. The IDF noted that further legal measures would not be taken in other incidents mentioned by the Goldstone report because, "according to the rules of warfare, no faults were found in the forces' actions" or there was not enough evidence to proceed. The IDF also reiterated that the operation was conducted after eight years of rocket fire into southern Israel from Gaza and that Israel practiced a "policy of restraint for a long period of time."

Both Israel and Hamas conducted independent investigations into the incident after the UN General Assembly [official website] adopted a resolution in November giving them three months to probe possible war crimes committed during the Gaza conflict. Hamas reported to the UN that its independent investigation had absolved Palestinian forces of any wrongdoing. Israel presented a report to the UN in February detailing its role in the conflict [JURIST report] and noting that two high-ranking Israeli officers were indicted for their actions during the incident. Rights groups have questioned the impartiality of the internal investigations. In April, Human Rights Watch (HRW) [advocacy website] accused [JURIST report] both Israel and Hamas of failing to conduct meaningful, credible investigations into accusations of war crimes during the conflict. In February, HRW criticized [JURIST report] Israel for failing to demonstrate that it would conduct a thorough and impartial investigation of the alleged war crimes. Just prior to that, UN Secretary-General Ban Ki-moon [official website] said that it was unclear whether Israel and Palestine have fully met UN demands [JURIST reports] to set up a commission to investigate war crimes that may occurred during the conflict.




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Spain court reopens probe into 2003 journalist death in Iraq
Sarah Miley on July 6, 2010 11:59 AM ET

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[JURIST] The Spanish Supreme Court [official website, in Spanish] on Tuesday ordered a lower court to reopen the investigation into the death of Spanish cameraman Jose Couso [advocacy website, in Spanish] who was mortally wounded by US tank fire in Iraq in 2003. Details as to why the court decided to reopen the investigation are not yet available. The Spanish National Court [CJA backgrounder] in November dismissed charges against three US soldiers who were accused of being involved in Couso's death and recommended the case be closed because no new evidence had been produced since Judge Santiago Pedraz Gomez [JURIST news archive] reinstated the charges [JURIST report] in May 2009. Homicide charges filed against Sgt. Shawn Gibson, Capt. Philip Wolford and Lt. Col. Philip DeCamp were initially dropped in 2007 due to a lack of evidence. US authorities have claimed that the attack was in response to hostile fire and was consistent with the rules of combat.

Gomez ordered [text, in Spanish; JURIST report] the soldiers' arrest in October 2005 after initiating investigations [JURIST report] into the incident in June of that year. The order was reversed by a panel of judges for the National Court in 2006. This reversal was then overturned by Spain's Supreme Court, resulting in arrest warrants being reissued [JURIST report] in January 2007. The soldiers were indicted [JURIST report] in April of that year.




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Sri Lanka pro-government protesters demand end to UN panel
Hillary Stemple on July 6, 2010 11:33 AM ET

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[JURIST] Sri Lankan pro-government protesters on Tuesday demanded the UN end plans to have an international panel [JURIST report] investigate allegations of human rights abuses during the last months of the Sri Lankan civil war [JURIST news archive]. The protesters, led by Sri Lankan cabinet member Wimal Weerawansa, demonstrated outside UN offices in the country's capital, preventing UN workers from leaving the building and warning that the workers would not be permitted to leave until the panel is disbanded. UN Secretary-General Ban Ki-moon [official website] appointed the panel last month to investigate alleged wartime abuses of civilians by both the Sri Lankan government and the rebel Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive] in the hopes that the Sri Lankan government will hold those responsible for the worst of the violence accountable [statement] for their actions. Police at one point attempted to disperse the protesters [AP report], but allowed the protests to continue after Weerawansa ordered the police to stop the dispersal. The protesters indicated that they believed the UN panel was put in place [Al Jazeera report] to facilitate war crimes charges against members of the Sri Lankan military who they say acted admirably in fighting terrorism within the country. The government has rejected implementation of the panel and indicated it would refuse entry [JURIST reports] to its members. They view the panel as a violation of Sri Lankan sovereignty and have cited an internal commission appointed in May [press release] as sufficient to deal with reconciliation issues related to the violence within Sri Lanka.

Sri Lanka has faced numerous allegations of human rights violations originating from incidents that took place during the final months of the civil war. In May, Human Rights Watch (HRW) [advocacy website] announced it had acquired new evidence [JURIST report] supporting allegations of war crimes. Also in May, the International Crisis Group (ICG) [official website] accused Sri Lankan security forces of war crimes [JURIST report], claiming that the violence of the 30-year civil war escalated in January 2009, leaving thousands more dead than projected by the UN. The UN panel has been asked to examine "the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka" and make the information available to the Sri Lankan government for further action on the matter. The panel will also report on the implementation of the human rights accountability statement [text] that both Ban and Sri Lankan President Mahinda Rajapaksa [official website] agreed to last May, but which Rajapaksa subsequently rejected [JURIST report].




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Bangladesh ex-PM's son charged with corruption
Sarah Miley on July 6, 2010 10:56 AM ET

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[JURIST] The Bangladesh Anti-Corruption Commission (ACC) on Tuesday charged the eldest son of former prime minister Khaleda Zia [BBC profile; JURIST news archive] with corruption for allegedly laundering three million dollars through bank accounts in Singapore. Police officials stated that the ACC filed suit against Tarique Rahman [BBC profile] and his business partner Giasuddin Al Mamun in October, but officially filed the corruption charges [AP report] on Tuesday after investigation into the claims. The money was allegedly laundered between 2003 and 2007. Tarique was detained by the military-backed government in 2007 but was released from prison amidst torture allegations. He now lives in London with Zia in order to receive medical treatment. Mamun is currently incarcerated in Bangladesh and facing additional corruption charges.

Tarique and Zia are also facing charges of embezzlement [JURIST report] filed by the ACC in August. Zia, the head of the opposition Bangladesh Nationalist Party [party website], her son and four others are accused of embezzling over 21 million taka (US $305,000) in the Zia Orphanage Trust, which is said to be nonexistent. In May 2009, Morshed Khan, who served as Zia's foreign minister, began serving a 13-year sentence [JURIST report] for illegally amassing nearly $250,000. Khan initially fled the country following the January 2007 state of emergency declaration [JURIST report] that suspended democratic rights in Bangladesh. Three other Zia officials were jailed [JURIST report] in November 2008. Zia herself was taken into custody [JURIST report] on suspicion of corruption in September 2007.




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Canada court orders government to remedy Khadr rights breach
Sarah Miley on July 6, 2010 9:37 AM ET

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[JURIST] The Federal Court of Canada [official website] on Monday ordered the Canadian government [judgment, PDF] to provide Guantanamo Bay detainee Omar Khadr [DOD Materials; JURIST news archive] with a list of remedies to ameliorate its breach of his constitutional rights. The court held that Khadr, who is a Canadian citizen, has a right to "procedural fairness and natural justice" under section 7 of the Canadian Charter of Rights and Freedoms [text], and the government has so far failed to take appropriate action to guarantee these rights. The court also ruled that Khadr is entitled to submit additional potential remedies and will provide his list to the government within seven days of their original submission. Judge Russell Zinn, delivering the judgment of the court, held that upon receiving the remedies list, the government must "advance a potential curative remedy as soon thereafter as is reasonably practicable and to continue advancing potential curative remedies until the breach has been cured or all such potential curative remedies have been exhausted." Zinn concluded that he retained jurisdiction to impose a remedy if the government does not implement an effective remedy withing a "reasonably practicable period of time." Khadr has been held at Guantanamo since his 2002 capture by US forces in Afghanistan when he was 15 years old. He is facing murder and terrorism charges [JURIST report] for allegedly throwing a grenade that killed one US soldier and injured another. He has repeatedly denied the accusation.

Khadr sought judicial review from the Federal Court following the Supreme Court's decision in January that Canada would continue to refuse to request his repatriation [JURIST reports] from Guantanamo, even though the judges unanimously agreed that the government had breached Khadr's Charter rights. According to the ruling, Canadian officials questioned Khadr, who was captured at age 15, even though they knew he was being indefinitely detained, and, in March 2004, he was questioned with knowledge that he was subjected to three weeks sleep deprivation by US authorities. In May, a UN official called on the US and Canada to respect international conventions [JURIST report] and release Khadr into Canadian custody. The UN claimed that since Khadr was 15 when he was captured, his detention would fall in line with the UN Convention on the Rights of the Child [official website], which has been ratified by Canada, but not the US. Khadr's trial before a US military commission is set to begin on August 10 [JURIST report].




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Thailand government extends state of emergency
Hillary Stemple on July 6, 2010 8:13 AM ET

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[JURIST] The Thai government on Tuesday extended the state of emergency in Bangkok and 18 provinces for another three months based on claims of continuing unrest related to the country's latest round of political violence [JURIST news archive]. Thai Prime Minister Abhisit Vejjajiva [official website, in Thai] said the decision was based on intelligence reports [MCOT report] regarding certain areas of the country and also noted that the state of emergency would be allowed to expire in five provinces that are considered to be stable. The state of emergency was declared in April [JURIST report] after protesters, known as red shirts [BBC backgrounder], broke into Parliament, causing government officials to evacuate. Rights groups have expressed concern about the treatment of anti-government protesters arrested during the protests and urged the government to end the state of emergency [JURIST reports]. The International Crisis Group (ICG) [advocacy website] on Monday released a report detailing reconciliation efforts in Thailand [report, PDF] following the protests. In the report, they called for an immediate end to the state of emergency, which they say has "empowed" the government to stifle political discourse [press release] within the country. Thailand's Human Rights Commissioner Nirand Pithakwachara has expressed concern over the extension, calling on the government to clarify the reason for extending the state of emergency and noting that the extension was not consistent with the steps the government has been taking toward reconciliation. Under the state of emergency, civil liberties will continue to be restricted through the institution of curfews and the banning of public gatherings. Additionally, the police have broader powers to arrest and detain, the government may censor media reports and detainees can be held for 30 days without access to legal counsel. Abhisit first extended the state of emergency [JURIST report] last month, but he had indicated at that time that the state of emergency would be allowed to expire on July 7.

The protests came to an end [JURIST report] in May when red shirt leaders surrendered to police, which led to rioting, arson and the imposition of a curfew to protect citizens of Bangkok and its surrounding areas. The red shirts are supporters of ousted prime minister Thaksin Shinawatra [BBC profile; JURIST news archive], who was removed from power in 2006 [JURIST report]. The group was demanding that Abhisit dissolve parliament and call new elections. Last month, a Thai court charged 11 protest leaders [JURIST report] with terrorism in connection with the political demonstrations. In May, 27 red shirt protesters were sentenced to six months in prison [JURIST report] for violating the emergency decree prohibiting political gatherings of more than five people. Under the strict security law [JURIST report] adopted in March in anticipation of the protests, the detained red shirts faced a sentence of up to a year in prison, but their sentences were reduced because they confessed to the charges. Abhisit has promised to conduct an independent investigation [JURIST report] into the clashes between security forces and red shirt protesters, which resulted in more than 80 deaths.




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