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Legal news from Friday, September 24, 2010




Kenya court convicts 7 more Somali pirates
Zach Zagger on September 24, 2010 1:53 PM ET

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[JURIST] A Kenyan court on Thursday convicted seven Somali pirates [JURIST news archive] and sentenced them to five years in prison. The group was tried and convicted [BBC report] in the coastal town of Mombasa where they had been held since their capture by a Spanish warship in May 2009 after attempting to attack the Maltese-flagged merchant ship Anny Petrakis. The Spanish warship was part of the the EU Naval Force Somalia (EU NAVFOR) [official website], a naval force that has been deployed to deal with the surge of piracy off the coast of Somalia. This group of Somali pirates is just the second of nine [press release] groups of suspected pirates totaling 75 individuals that EU NAVFOR has turned over to the Kenyan authorities since its deployment. Earlier this month, a Kenyan court convicted seven other Somali pirates [JURIST report], giving them the same five-year sentences. The maximum sentence under Kenyan law for piracy is life imprisonment, and EU NAVFOR refuses to turn over suspects unless capital punishment is off the table.

Piracy in the Gulf of Aden and Indian Ocean remains a major problem despite international efforts to curb it. Though the success rate of pirate attacks has dropped [Montreal Gazette report], the attacks continue. Kenya and Seychelles are the only two African countries that have agreed to try the suspected pirates. In July, a court in Seychelles convicted and sentenced [JURIST report] a group of Somali pirates to 10 years in prison following the attempted hijacking of Seychelles coastguard ship. In June, the UN announced the opening of a new high-security courtroom [JURIST report] in Kenya that will hear piracy cases. The announcement came after the UN announced $9.3 million in donations [JURIST report] to help fund piracy courts in Kenya and Seychelles.




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DOJ asks court not to enforce ruling overturning 'Don't Ask Don't Tell'
Matt Glenn on September 24, 2010 12:16 PM ET

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[JURIST]The US Department of Justice (DOJ) [official website] filed an objection [text] Thursday in the US District Court for the Central District of California [official website] asking the court not to issue a proposed injunction [text, PDF] prohibiting the military from enforcing its "Don't Ask Don't Tell" (DADT) [10 USC § 654; JURIST news archive] policy. The court declared the policy unconstitutional [opinion, PDF; JURIST report] earlier this month. The DOJ stated that any injunction should be limited to enjoining enforcement of the policy against Log Cabin Republicans [advocacy website], the group that brought the lawsuit [case materials; LCR backgrounder], rather than against military personnel as a whole. The DOJ also argued that the proposed injunction goes further than merely prohibiting the enforcement of DADT in that it prohibits taking any action against service members based on their sexual orientation. The DOJ also asked for time to come up with a non-judicial solution, stating in its filing:
As the Court is aware, both the Executive and Legislative branches are actively examining the DADT law and policy. A court should not compel the Executive to implement an immediate cessation of the seventeen year-old policy without regard for any effect such an abrupt change might have on the military's operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe.
Earlier this week, the US Senate rejected a cloture motion [JURIST report] on a defense appropriations bill that would have repealed DADT. White House Press Secretary Robert Gibbs defended the filing [press release], noting that the DOJ routinely defends acts of Congress and stating that the "filing in no way diminishes the President's firm commitment to achieve a legislative repeal of DADT - indeed, it clearly shows why Congress must act to end this misguided policy." The Log Cabin Republicans stated [press release] they "are deeply disappointed" with the administration's decision to file the objection.

Last month, a US military officer filed a lawsuit [complaint, PDF; JURIST report] seeking to enjoin the military from discharging him under DADT. In May, the House of Representatives [official website] and the Senate Armed Services Committee voted to repeal the policy after President Barack Obama and Defense Secretary Robert Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness. Also in May, A CNN poll [results, PDF] released found that 78 percent of American adults believe that homosexuals should be able to serve openly in the military. In March, Gates announced changes to the enforcement [JURIST report] of the policy to make it more difficult to expel openly gay service members from the military.




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Washington high court upholds state's Internet gambling ban
Drew Singer on September 24, 2010 12:02 PM ET

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[JURIST] The Washington Supreme Court [official website] ruled [opinion text] Thursday that a state ban on online gambling [text] is constitutional. Washington resident Lee Rousso gambled online in the past and wanted to continue doing so, arguing that a new statewide ban on online gambling violates the Dormant Commerce Clause, an implication in the US Constitution's Commerce Clause [text] that states cannot excessively burden interstate commerce. The court applied a two-prong test to determine whether the statewide online gambling ban was constitutional, ruling that there (1) was a legitimate state in purpose and (2) the burden imposed on interstate commerce is not "clearly excessive" in relation to the local benefit:
RCW 9.46.240 imposes a burden on interstate commerce by walling off the Washington market for Internet gambling from interstate commerce. The extent of this burden is mitigated somewhat. First, the ban does not prevent or hinder Internet gambling businesses from operating throughout the rest of the world. Second, those businesses can easily exclude Washingtonians. If an individual during registration marks his or her location as the state of Washington, the gambling web site can end the registration there.
The trial court had granted summary judgment for the state, which was affirmed by the Court of Appeals.

While online gambling has always been illegal in Washington, the law, passed in 2006, clarified that the Internet was included in the state and federal ban on remote gambling and also increased the charge from a gross misdemeanor to a felony. Courts across the world have been upholding online gambling bans, most recently in Sweden and the Netherlands [JURIST reports]. The Unlawful Internet Gambling Enforcement Act [HR 4411 materials], a federal act that bans banks and financial institutions from intentionally accepting payments from credit cards, checks or electronic fund transfers related to unlawful Internet bets, came into affect earlier this year.




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DOJ asks appeals court to uphold ruling on Arizona immigration law
Brian Jackson on September 24, 2010 11:49 AM ET

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[JURIST] Attorneys for the US Department of Justice (DOJ) [official website] on Thursday filed an appellate brief [text, PDF] in the US Court of Appeals for the Ninth Circuit, arguing that the district court did not abuse its discretion when it enjoined four provisions of Arizona's controversial immigration law [JURIST news archive]. In the brief, the US argued that, because immigration is the province of the federal government, the US is likely to succeed on the merits of the case, and the injunction issued on July 28 [JURIST report] was not an abuse of the district court's discretion. In their brief, attorneys for Arizona argued that the district court applied the wrong legal standard [JURIST report] in issuing the injunction. In summarizing the government's position, the DOJ attorneys wrote:
The regulation of immigration is intertwined with the national government's exclusive conduct of foreign policy. "[I]nternational controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another's subjects inflicted, or permitted, by a government." It is the national government, not the 50 individual States, that must prioritize the various national interests in such areas because "a single State" that inserts itself into immigration enforcement contrary to federal policies and objectives "can, at her pleasure, embroil us in disastrous quarrels with other nations."
Oral argument before the Ninth Circuit is scheduled to take place in November [Bloomberg report].

In July, soon after the injunction was issued, the Ninth Circuit denied Arizona's request for expedited appeal [JURIST reports]. The preliminary injunction came at the request of the DOJ, which originally filed suit challenging the constitutionality of the law [JURIST report] in July. Judge Bolton of the district court issued the injunction against provisions of the law requiring the verification of the immigration status of people reasonably suspected of being illegal immigrants, authorizing the warrantless arrest of those police have probable cause to believe have committed an offense that could lead to deportation and requiring noncitizens to carry their registration papers with them at all times. The American Bar Association filed an amicus curiae brief [JURIST report] in support of the DOJ lawsuit, following the submission of another amicus curiae brief [JURIST report] filed by the American Civil Liberties Union.




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Rights group urges Myanmar to free political prisoners before election
Megan McKee on September 24, 2010 9:04 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Thursday urged [press release] the government of Myanmar to release all political prisoners ahead of the nation's November elections—the first to be held in 20 years. Myanmar currently holds 2,200 political prisoners, the majority of whom were arrested for peaceful activism. AI's statement marks the third anniversary of the violent government crackdown on activism in response to the Saffron Revolution [Independent, backgrounder], a peaceful pro-democracy movement led by Buddhist monks. Political prisoners will be banned from the upcoming elections and from holding membership in any political party. Benjamin Zawacki of AI said: "[t]hese prisoners constitute a significant part of the political opposition." Myanmar officials announced Friday that detained opposition leader Aung San Suu Kyi [BBC profile; JURIST news archive] will be permitted to vote [BBC report] in the elections, breaking with earlier statements that she would be kept from participating.

Under house arrest, Suu Kyi was previously prohibited from participating in this year's elections. Her detention and previous exclusion from the election have drawn criticism [JURIST report] from the UN and various rights groups. Suu Kyi, who has been in prison or under house arrest for 14 of the past 20 years, will be released in November [JURIST report], according to a government official, likely after the elections have taken place. In April, Suu Kyi filed suit before the Myanmar's Supreme Court to contest the dissolution of her opposition party, National League for Democracy [party website], under a controversial election law [JURIST report]. Additionally, the claim seeks to annul the part of the election law that bars political prisoners [JURIST report] from participating in elections and also requests the establishment of a parliament of lawmakers who won in the 1990 elections.




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