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Legal news from Monday, August 16, 2010




US government temporarily halts Gulf drilling exemptions
Hillary Stemple on August 16, 2010 3:27 PM ET

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[JURIST] US Secretary of the Interior Ken Salazar [official profile] announced Monday that environmental reviews will be required [press release] for all new deepwater drilling, temporarily halting exemptions that allowed oil companies to drill without environmental impact statements. The process for exemptions was created under the National Environmental Policy Act (NEPA) [materials] and required exemptions to be offered based on data provided by the companies seeking to drill. The announcement came after the White House Council on Environmental Quality [official website] reported that BP received an exemption [press release] based on outdated information for the Deepwater Horizon drilling site, which blew out in April leading to the massive Gulf of Mexico oil spill [BBC backgrounder; JURIST news archive]. Salazar stated that the NEPA process for exemptions would be thoroughly reviewed and that the decision to allow drilling must be "fully informed by an understanding of the potential environmental consequences." Exemptions to the environmental review under NEPA will now be restricted to projects that involve "limited environmental risk." A six-month drilling moratorium [JURIST report] is currently limiting new drilling in the Gulf, and the restricted exemptions are expected to make approval for new deepwater drilling more difficult once the moratorium is lifted.

The Obama administration first announced a drilling moratorium [JURIST report] in May, suspending several offshore drilling activities including pending lease sales in the Gulf and Virginia and the drilling of 33 deepwater exploratory wells in the Gulf. In June, a federal judge ordered a preliminary injunction [opinion, PDF; JURIST report] against the original moratorium, stating that the blanket moratorium on drilling was too harsh and that the administration failed to consider less-restrictive alternatives. Last month, the US Court of Appeals for the Fifth Circuit [official website] rejected a request [JURIST report] by the administration to stay the preliminary injunction. The US Department of Justice (DOJ) [official website] asked the appeals court to stay the injunction, claiming the district judge abused his discretion [JURIST report] and that another deepwater spill could overwhelm the ongoing efforts to clean up the spill with catastrophic results. The six-month drilling moratorium was issued in response to the court of appeals decision. More than 200 million gallons of oil leaked from the rig's broken pipe, surpassing the Exxon Valdez oil spill [JURIST news archive] as the worst in US history.




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Thailand protest leaders plead not guilty to terrorism charges as state of emergency lifted
Sarah Miley on August 16, 2010 1:55 PM ET

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[JURIST] Opposition leaders in Thailand pleaded not guilty Monday to charges of terrorism in connection with Thailand's recent political violence [JURIST news archive], as the government partially lifted the state of emergency that has been in place since May. The men held leadership positions in the United Front for Democracy Against Dictatorship [party website, in Thai] opposition group known as red shirts [BBC backgrounder] that conducted anti-government protests spanning from March 12 to May 19. They are accused of inciting violence, threatening government officials, including the prime minister, and committing terrorism during the protests. Coinciding with the plea, Prime Minister Abhisit Vejjajiva lifted the state of emergency [AP report] in three of the nation's northern provinces, but kept the decree in place in Bangkok and six other regions, citing security reasons. The next hearing for the opposition leaders is set for September 27, and, if convicted, the men face the possibility of execution.

In June, the Thai government indicated it will study the possibility of extending amnesty to red shirt protesters [JURIST report] convicted of minor offenses in order to facilitate reconciliation within the country. The offer of amnesty would not be given to the protesters charged with terrorism but could be extended to the 27 red shirt protesters who were sentenced to six months in prison [JURIST report] for violating the emergency decree prohibiting political gatherings of more than five people. The protests came to an end [JURIST report] last month 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]. Last week, Thaksin lost an appeal [JURIST reports] to the Supreme Court of Thailand [GlobaLex backgrounder] challenging the seizure of his assets [JURIST report] by the government after the Constitutional Court had found him guilty of using his power in office to personally benefit himself and other family members.




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DOJ ends DeLay criminal probe without filing charges
Hillary Stemple on August 16, 2010 12:10 PM ET

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[JURIST] A lawyer for former US House Majority Leader Tom DeLay (R-TX) [JURIST news archive] confirmed Monday that a US Department of Justice (DOJ) [official website] criminal probe into DeLay's association with lobbyist Jack Abramoff [JURIST news archive] has been dismissed without charges being filed. The investigation lasted six years and included grand jury testimony [Politico report] from former aides as well as a review of more than 1,000 documents and e-mails from DeLay's office. Richard Cullen, a lawyer representing DeLay, noted that while many members of Congress targeted for investigation objected to producing documents, DeLay made every effort to provide the requested documentation. While the DOJ does not comment on investigations that conclude without charges being filed, Cullen stated that he was informed last week that the investigation was ending. DeLay still faces money laundering and conspiracy charges in Texas state court relating to 2002 state legislative elections. The state court trial is expected to begin next spring.

DeLay and two other Republicans are accused of transferring $190,000 in corporate money directly to the Republican National Committee, which then donated the same amount to local Texas campaigns. DeLay and the other suspects have denied raising or spending money illegally. In August 2008, a Texas appeals court allowed the money-laundering indictment [JURIST report] against DeLay's associates to stand. In 2007, a Texas appeals court ruled against reinstating a charge of conspiracy to violate the state's election against DeLay and his two associates. After he was indicted, DeLay stepped down as House majority leader and later resigned from Congress [JURIST reports].




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Rights group claims Kyrgyzstan armed forces played role in ethnic clash
Sarah Miley on August 16, 2010 11:00 AM ET

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[JURIST] Kyrgyzstan armed forces played a role in instigating and at times taking part in recent attacks against ethnic Uzbeks, Human Rights Watch (HRW) [advocacy website] reported [text] Monday. HRW also stated that local law enforcement did not provide adequate protection [press release] to the Uzbek community during the June 2010 ethnic violence [JURIST news archive]. The report documents large-scale "sweep" operations in Uzbek neighborhoods and abusive search and seizure operations that security forces have conducted daily in Osh's predominantly Uzbek communities. The report called for authorities to investigate the role of the government in the violence and to prosecute those responsible for the clash, which left at least 370 people dead:
It's clear that the massive ethnic violence posed colossal challenges for Kyrgyz security forces, yet we found that some of the security forces became part of the problem rather than the solution. National and international inquiries need to find out just what the government forces did and whether the authorities did everything they could to protect people. This is crucial both for justice and to learn lessons about how to respond to any new outbreaks. Those responsible for the heinous crimes against both Kyrgyz and Uzbeks during the June violence should be prosecuted irrespective of their ethnicity, title, or rank.
The report was compiled through a combination of testimony from victims, witnesses, human rights experts and government personnel, as well as satellite and photographic images and forensic evidence. According to HRW, the Kyrgyz government has commenced more than 3,500 criminal investigations, but has failed to thoroughly examine the role and responsibility of government forces in the violence. HRW has also called on the international community to ensure the effective and speedy deployment of an international police force and to support efforts for an international investigation.

Last month, UN Human Rights Commissioner Navi Pillay [official website] issued a warning [JURIST report] about ongoing human rights violations in Kyrgyzstan following the recent ethnic violence in the country. According to Pillay, security forces in the southern part of the country have been arbitrarily detaining large numbers of Uzbeks in violation of both Kyrgz and international laws. Additionally in July, Kyrgyz interim President Roza Otunbayeva [Telegraph profile] established a commission [JURIST report] to investigate the ethnic violence against the country's Uzbek population. It will consult with government and international experts and present its findings [AP report] on the causes and repercussions of the violence in September.




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Diamond trading group bans sale of Zimbabwe stones over rights violations
Hillary Stemple on August 16, 2010 10:35 AM ET

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[JURIST] The US-based Rapaport Diamond Trading Network [corporate website] on Sunday reiterated its stance against the sale of Zimbabwe diamonds [press release] associated with human rights violations. In a letter to their members, Rapaport stated they will expel members who knowingly trade the tainted diamonds and that they will publish the names of members who trade the stones. Last week, the Kimberley Process (KP) [official website] certified approximately 900,000 carats of diamonds from Marange, Zimbabwe [Fair Trade backgrounder], stating that the mines producing the stones met required minimum international standards [CP report]. Rapaport noted that KP certification may allow the stones to be sold in certain jurisdictions, but warned that it is illegal for citizens from the US, EU and UK to knowingly trade diamonds from the Marange diamond fields. They also cautioned that KP certification does not guarantee that the diamonds are not associated with human rights violations and that KP does not have a mandate to deny certification for diamonds involved in human rights violations.

KP approved the sale of the diamonds [JURIST report] from the Marange mines last month, after reaching an agreement with the Zimbabwean government. Under the agreement, KP will allow Zimbabwe to sell [NYT report] a portion of its estimated USD $1.7 billion worth of mined diamonds before September, and the Zimbabwean government will allow KP experts to enter the country to certify that the diamond mines meet international standards. Diamonds sales after September will be contingent upon this certification. Last November, rights groups urged KP to suspend [JURIST report] Zimbabwe's international diamond trade due to the human rights violations [Telegraph report] allegedly committed by the Zimbabwean army against civilians and illegal workers in the Marange diamond fields.




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US Senator introduces Guantanamo habeas corpus bill
Sarah Miley on August 16, 2010 8:53 AM ET

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[JURIST] US Senator Lindsey Graham (R-SC) [official website] has introduced a bill to create rules and guidelines for legal challenges brought by future Guantanamo Bay [JURIST news archive] detainees and enemy combatants captured by US forces. Graham introduced the Terrorist Detention Review Reform Act [text, PDF] earlier this month without the support of the Obama administration, reflecting the parties' inability to reach a consensus on habeas corpus legislation. The landmark legislation would have Congress provide a definition of an enemy combatant subject to detention, create guidelines for the amount of evidence needed to keep a detainee incarcerated and authorize competent courts to take into consideration involuntary statements made by prisoners in the battlefield. Neither Graham nor the Obama administration has made an official statement regarding the bill, but political analysts have noted that Graham's actions were most likely intended to force the administration to reach a compromise [Politico report] on the currently contentious issue.

Habeas corpus relief for enemy combatants has been a prominent issue in US federal courts. Last month, the US Court of Appeals for the District of Columbia Circuit [official website] released a redacted opinion [JURIST report] holding that evidence against Algerian Guantanamo Bay detainee Belkacem Bensaya must be reviewed to determine if he was "part of" al Qaeda [JURIST archive]. Circuit Judge Douglas Ginsburg, writing the opinion for the panel, held that there appeared to be no direct evidence linking Bensaya to al Qaeda, and that the government's authority under the 2001 Authorization for Use of Military Force (AUMF) [text, PDF] only extends to the detention of individuals who are "functionally part of" a terrorist organization. Bensayah was the only one of the six petitioners from the 2008 Boumediene v. Bush [opinion, PDF; JURIST report] decision who was not granted habeas relief after the Supreme Court remanded the case for further review of evidence. In Ma,y the DC Circuit ruled in Al Maqaleh v. Gates that Boumediene was narrowly tailored to detainees being held at Guantanamo [JURIST report] and that detainees held at Bagram Air Force Base [official website; JURIST news archive] in Afghanistan cannot bring habeas corpus challenges in US courts.




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Cambodia genocide prosecutors to appeal ex-Khmer Rouge leader sentence
Hillary Stemple on August 16, 2010 8:52 AM ET

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[JURIST] Co-prosecutors for the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] on Monday filed a notice of an appeal [text, PDF; press release] of the judgment against former Khmer Rouge [BBC backgrounder] official Kaing Guek Eav [case materials; JURIST news archive]. Last month, the trial chamber of the ECCC convicted Kaing [JURIST report], also known as "Duch," of crimes against humanity and of violating the 1949 Geneva Conventions, sentencing him to 35 years in prison. Kaing's sentence was reduced to 19 years after the court considered time served as well as other factors. The prosecution, seeking to increase Kaing's term of imprisonment, identified three grounds for appeal, including a discernible error in the exercise of sentencing discretion, an error of law regarding cumulative convictions and an error of law regarding enslavement. They contend that the trial chamber gave insufficient weight to the gravity of Kaing's crimes and undue weight to mitigating circumstances. The prosecution called Kaing's sentence "arbitrary" and "manifestly inadequate." They also argue that the judgment should be invalidated for failure to convict Kaing cumulatively for the distinct crimes of rape and torture and for employing a definition of enslavement requiring forced labor as an element of the crime. Kaing has also indicated that he plans to appeal his conviction, and he has hired new counsel [JURIST report] to handle the appeals process.

Kaing unexpectedly asked to be released [JURIST report] at the close of his trial in November. His request was a complete departure from his previous conduct, as he had cooperated with the trial and repeatedly apologized to his victims and their families, mitigating conduct that earned him a reduced sentence from the 40 years prosecutors originally sought. His lawyers took different approaches in their closing remarks, with one stating that his client was not guilty and the other asking for clemency. In March 2009, Kaing accepted responsibility and apologized [JURIST report] for his conduct at the detention facility. He is the first of eight ex-Khmer Rouge officials expected to be tried before the ECCC. In April, the pre-trial chamber of the ECCC dismissed appeals by three other former Khmer Rouge officials [JURIST report] to block the extension of their provision detention. The three prisoners, Ieng Thirith, Ieng Sary and Khieu Samphan, were arrested in November 2007 and face charges of genocide, war crimes, crimes against humanity, murder, torture and religious persecution.




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