JURIST - Paper Chase: Saturday, October 9, 2010

[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] ruled [opinion, PDF] Wednesday that governmental interests in the protection of sensitive information supersede a detainee's request for its disclosure. The decision overturns the district court's earlier finding in favor of Guantanamo Bay [JURIST news archive] detainee Djamel Ameziane [advocacy materials], who claims to have been subjected to torture [AP report] and is seeking release. In a heavily redacted opinion, the court found that insufficient deference had been paid to the government's assertions that releasing the materials would compromise national security and foreign policy interests.

Ameziane is also awaiting the outcome of a complaint filed against the US [JURIST report] in August 2008 before the Inter-American Commission on Human Rights (IACHR) [official website], which alleges that he has been tortured, given inadequate medical treatment and denied other basic rights. The complaint contends that Ameziane's treatment violates conditions of the American Declaration of the Rights and Duties of Man [materials] and that he has been denied timely review of his habeas corpus petition by the US, despite the US Supreme Court ruling in Boumediene v. Bush [opinion text; JURIST report] that detainees have the right to bring such petitions.

[JURIST] Family members of Turkish activists killed during Israel's raid of a Gaza-bound flotilla [JURIST news archive] in May have sent a request to the International Criminal Court (ICC) [official website] for a formal investigation into the incident. The families submitted the request on behalf of nine Turkish activists and one American activist who were killed during the raid [Guardian report] on the Mavi Marmara, one of the ships traveling in the flotilla. In a letter to ICC chief prosecutor Luis Moreno-Ocampo [official profile], the families held that there is overwhelming evidence of international law violations and urged the prosecution of those responsible. According to a report [text, PDF] released [JURIST report] in September by the UN Human Rights Council (UNHRC) [official website], Israeli forces committed several international law violations during the raid, including violations of the International Covenant on Civil and Political Rights (ICCPR) and the Fourth Geneva Convention [texts]. A spokesperson for the Israeli Ministry of Foreign Affairs [official website] responded to the report [press release] by calling the mission's approach "biased, politicized and extremist." The spokesperson indicated that Israel will not cooperate with the commission, but will "read and study the report." Although Israel and the Palestinian territories are not party to the Rome Statute [text], lawyers for the victims say that court has jurisdiction due to the involvement of Turkey and the fact that the Mavi Marmara was sailing under the flag of the Comoros Islands.

The Turkish Foreign Ministry [official website] recently submitted findings from its own investigation [JURIST report] to the UNHRC for consideration in the report. In July, an Israeli military probe into the incident found insufficient intelligence and planning of the raid, but concluded that no punishments were necessary [JURIST report]. Israel also established a civilian commission [JURIST report] in June to investigate its response. Israeli Prime Minister Benjamin Netanyahu [official website] testified before the civilian commission [JURIST report] in August and expressed confidence that the commission would find Israeli actions to be in compliance with international law, explaining the Israeli response to the flotilla in the context of the ongoing conflict between Israel and Hamas. The incident took place on May 31 when Israeli forces raided six ships attempting to deliver more than 10,000 tons of aid to Gaza.

[JURIST] The Supreme Court of Canada [official website] ruled [judgment text] 5-4 Friday that Canadians do not have the right to have counsel present during custodial interrogations. The court held that § 10(b) of the Charter of Rights and Freedoms [text], which states that those under arrest have the right "to retain and instruct counsel without delay and to be informed of that right," is typically satisfied once the suspect is advised of the right and, if invoked, permitted "reasonable opportunity to consult counsel." The court went on to to say, however, that the charter does not extend so far as to necessitate counsel's presence for the duration of the interview. Writing for the majority, Chief Justice Beverley McLachlin and Justice Louise Charron [official profiles] declined to adopt an interpretation akin to the US Supreme Court ruling in Miranda v. Arizona [text], which affords suspects the right to effectively discontinue an interrogation by requesting counsel at any time, stating:

While the police must be respectful of an individual's Charter rights, a rule that would require the police to automatically retreat upon a detainee stating that he or she has nothing to say would not strike the proper balance between the public interest in the investigation of crimes and the suspect's interest in being left alone.

The court found, however, that suspects may again invoke their § 10(b) right in the event that the circumstances of the investigation warrant renewed legal consultation. Such circumstances may include the introduction of new evidence, filing of additional charges or belief that the previously received advice is flawed.

The case, Trent Terrence Sinclair v. Her Majesty the Queen [case materials], came to the court on appeal from the Court of Appeal for British Columbia [official website], which had ruled similarly. The case arose from Sinclair's prosecution for a November 2002 murder, for which he was arrested the following month. Following his arrest and during the interview, Sinclair was advised of his right to counsel and spoke with a lawyer twice by phone before indicating that he did not wish to continue speaking with police and again requesting his lawyer. Sinclair was advised that he may remain silent, but that he could not insist on his lawyer's presence. He later made inculpatory statements, agreed to participate in a reenactment of the crime and was convicted of manslaughter. In 2005, the Supreme Court of Canada ruled [JURIST report] that officers do not have to inform individuals of their right to counsel at DUI checkpoints, a policy also upheld under US law.

[JURIST] Accused Russian arms dealer Viktor Bout [BBC profile; JURIST news archive] on Friday filed an appeal challenging the Bangkok Criminal Court's decision to dismiss [JURIST report] money laundering and fraud charges against him, which removed obstacles to his US extradition. According to Bout's lawyer Lak Nitiwatanavichan, the arms dealer is now seeking to have these charges reinstated [Bangkok Post report] to avoid extradition to the US. In August, an appeals court in Thailand ruled that Bout can be extradited [JURIST report] to the US to face charges [indictment, PDF] including conspiracy to kill US nationals and conspiracy to provide material support to a terrorist group. The court's ruling overturned a decision it issued a year earlier, refusing to extradite Bout [JURIST report] on the basis that the accusations made by the US were not cognizable under Thai law. According to the August ruling, Bout must be extradited by November 20 [AP report] to the US or be released.

Bout's situation has created political tension for Thailand. Russia has shown strong support for Bout, claiming that he is an innocent businessman, while the US is seeking to prosecute him for supporting terrorism. Last week, Thai Prime Minister Abhisit Vejjajiva [official website, in Thai; BBC profile] said that, although the case must work its way through the court system, he will make the final decision [AP report] as to whether Bout will be extradited to the US. Lawyers for Bout argue that his safety would be in jeopardy in the US and that he would be unable to receive a fair trial. If convicted in a US court, Bout could be sentenced to life in prison. Bout has been in Thai custody since he was arrested [Interpol press release] in a joint operation carried out by US and Thai authorities in which Bout allegedly sought to sell arms to Revolutionary Armed Forces of Colombia (FARC) [CFR backgrounder].