[JURIST] The Mississippi Supreme Court [official website] heard arguments Wednesday in a challenge by the State Auditor to the state Attorney General [official websites] practice of paying fees to hired private counsel directly out of litigation awards. State Auditor Stacey Pickering is appealing [AP report] a lower court ruling last April upholding $10 million in fees paid to private lawyers hired by the attorney general's office to handle a state lawsuit against Microsoft. The software giant settled with the state for $100 million and agreed to pay $10 million to the outside attorneys, as was directed by the trial judge at the time. The lower court decision against Pickering upheld the payments by ruling that the fees were separate from the state settlement, paid under a legal contract with the attorney general, and that in this case outside counsel actually received no state funds. Pickering argues that such monies are public and should be collected by the state, after which the attorney general can request appropriation from the State Legislature [official website].
The court heard a similar case in June over $14 million collected by a group of private attorneys who worked on a tax related claim against MCI/WorldCom. The original case ultimately resulted in the state collecting $100 million in cash and $7 million in downtown property from the telecommunications giant. Here also the attorney general maintains that the attorney's fees were separate from the state's settlement, negotiated and paid directly by MCI to the private law firm. Again Pickering argues that relevant state law should be interpreted such that outside counsel must be paid from funds appropriated to the attorney general and not directly out of litigation awards. In February a lower court granted summary judgment [order, PDF] against Pickering, holding that his arguments had no merit and thus there was no genuine issue of material fact in the case. A decision on the appeal has yet to be issued by the state Supreme Court.
[JURIST] US President Barack Obama issued a directive Thursday barring war criminals and human rights violators [press release] from entering the country. Under the new proclamation, which took effect immediately, the Secretary of State determines which criminals or violators will be allowed into the US. Additionally, Obama commissioned the Atrocities Prevention Board, a panel assisting in deterring genocidal violence, which will begin work within six months. Obama explained the purposes and goals of the proclamation:
By institutionalizing the coordination of atrocity prevention, we can ensure: (1) that our national security apparatus recognizes and is responsive to early indicators of potential atrocities; (2) that departments and agencies develop and implement comprehensive atrocity prevention and response strategies in a manner that allows "red flags" and dissent to be raised to decision makers; (3) that we increase the capacity and develop doctrine for our foreign service, armed services, development professionals, and other actors to engage in the full spectrum of smart prevention activities; and (4) that we are optimally positioned to work with our allies in order to ensure that the burdens of atrocity prevention and response are appropriately shared.
The president also called for administration officials to present within 100 days a comprehensive, National Security Advisor-led interagency evaluation of the measures available for the prevention of mass atrocities.
Barring war criminals and rights violators may signal the Obama administration's commitment to international justice. In July, the administration issued [JURIST report] an executive order [text] imposing economic sanctions to combat international organized crime [JURIST news archive] operations, freezing their US assets, preventing the transfer of property to the organizations and criminalizing providing aid to the organizations. Earlier in July, Obama brought [JURIST report] Somali terror suspect Ahmed Abdulkadir Warsame to the US to face a civil trial in New York. The American Civil Liberties Union (ACLU) [advocacy website] lauded the decision but questioned the long detainment overseas. Conversely, Obama was urged to stop deportations [JURIST report] to Haiti on humanitarian grounds by 3,000 Americans who signed a petition in June. And last year, US Ambassador-at-Large for War Crimes Issues Stephen Rapp [official profile] said Thursday that no US president is likely [JURIST report] to present the Rome Statute [text] of the International Criminal Court (ICC) [official website] to the US Senate for ratification in the "foreseeable future."
Illegal immigration has become the focus of much legislative and judicial activity recently. Earlier this week, the US Department of Justice (DOJ) [official website] filed a complaint [text, PDF] in the US District Court for the Northern District of Alabama [official website] challenging [JURIST report] an Alabama law [HB 56 text] designed to restrict the actions of illegal immigrants. In addition to authorizing detention of individuals on reasonable suspicion they are illegal immigrants, the law provides harsh restrictions on employment for illegal immigrants. Businesses cited multiple times for hiring undocumented workers could lose their business licenses. Furthermore, undocumented immigrants are prohibited from applying for a job, and anyone transporting or harboring undocumented immigrants will be punished by a fine or jail time. The DOJ contended that various provisions of the Alabama immigration legislation are preempted by federal law and violate the Supremacy Clause [text] of the Constitution.
[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Wednesday ruled [opinion, PDF] that former US attorney general John Ashcroft [JURIST news archive] is entitled to absolute immunity from the claims of a Muslim American detained for two weeks after the terrorist attacks on September 11, 2001 [JURIST news archive]. The ruling is consistent with the recent US Supreme Court [official website] decision [opinion, PDF; JURIST report] in Ashcroft v. al-Kidd [Cornell LII Backgrounder] that reversed the appeal court's denial of Ashcroft's motion to dismiss. Ashcroft had appealed the decision [JURIST report] of the Ninth Circuit appeals court that absolute and qualified [AELE backgrounders] immunity do not shield him from the suit. Al-Kidd, an American citizen who was detained pursuant to a material witness warrant later found to be factually inaccurate, had argued that qualified immunity did not apply because the detention violated his Fourth Amendment [text] rights. The Supreme Court ruled 8-0, with four concurrences, to reverse and remand the appeal court's decision, holding that Ashcroft did not violate clearly established law and was thus entitled to qualified immunity. The Supreme Court also ruled that a witness in a terror investigation cannot challenge the constitutionality of an objectively reasonable arrest pursuant to a validly obtained warrant even if the government did not call or had no intention of calling the witness for trial.
Various courts have issued opinions on claims filed by detainees against the government in relation to the post-9/11 detentions. The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] in December 2009 that post-arrest detention is legal in cases where the detainees are reasonably detained. In November 2009, five men who claim they were illegally detained after 9/11 reached a settlement agreement [CCR release; JURIST report] with the US government for $1.26 million. In 2007, a district court judge granted the government's motion to dismiss [text, PDF] a number of those claims against Bush administration officials and law enforcement organizations in Turkmen v. Ashcroft [CCR backgrounder], but refused to dismiss the abuse claims. Also in 2007, the government criminally charged [JURIST report] several guards at the Metropolitan Detention Center in Brooklyn [official website], the location in which men were detained, with abusing prisoners.
[JURIST] A judge for the US District Court for the District of Montana [official website] ruled [order, PDF] Wednesday that Congress' removal of the Northern Rocky Mountain Wolf [Yellowstone Insider backgrounder] from the Endangered Species Act (ESA) [materials], not through amending it but through attaching a "wolf rider" to an appropriations bill, was legal. As a result, state hunting quotas to control the wolf population will be allowed in Idaho, Montana, Oregon, Washington and Utah. Judge Donald Malloy, citing a similar Ninth Circuit ruling as binding, declared the move lawful, if not distasteful:
This case presents difficult questions for me. The way in which Congress acted in trying to achieve a debatable policy change by attaching a rider to the Department of Defense and Full-Year Continuing Appropriations Act of 2011 is a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law. The principle behind the rule of law is to provide a mechanism and process to guide and constrain the government's exercise of power. Political decisions derive their legitimacy from the proper function of the political process within the constraints of limited government, guided by a constitutional structure that acknowledges the importance of the doctrine of Separation of Powers. That legitimacy is enhanced by a meaningful, predictable, and transparent process.
Plaintiffs in the suit, the Center for Biological Diversity [advocacy website] were disappointed [press release] in the outcome: "Although wolf numbers have risen, the job of wolf recovery in the northern Rocky Mountains is far from complete." The Interior Department [official website] also released a statement [text] on Wednesday stating that the wolf recovery plan was a success and hunting can begin anew.
Controversy began over the Northern Rocky Mountains Wolf in 2009, when US Fish and Wildlife Services [official website] removed [federal registrar notice, PDF] them from the ESA, after a controversial Interior Department memo was published that several animals should be taken off the list despite their numbers not being at a sustainable level. However, Fish and Wildlife Services only gave control of the wolf population to state governments in Montana and Idaho, restricting the wolves in Wyoming under Federal guidelines. In August 2010, Judge Malloy ruled that it was improper to remove restrictions in one jurisdiction and not another, and put the wolves back on the ESA entirely. In response, the "wolf rider" was attached to the Department of Defense and Full-Year Continuing Appropriation Act of 2011 [materials] bill, which became law in April. This reissued the previous rule, including the restrictions for hunting in Wyoming.
[JURIST] A judge for the US District Court for the District of Columbia [official website] ruled [opinion, PDF] Tuesday that former defense secretary Donald Rumsfeld [JURIST news archive] can be sued by a former US military contractor who claims he was tortured while imprisoned in Iraq. The man, whose identity remains concealed and who worked in Iraq as an intelligence officer, says [AP report] the US military accused him of passing information to the enemy and abducted and tortured him without formally charging him with a crime under orders from Rumsfeld. Upon release and return to the US, the former intelligence officer filed a suit demanding compensation for property lost and rights violated. Rumsfeld sought to have the case dismissed on grounds of vagueness and separation of powers and for protection of sensitive intelligence. However, Judge James S. Gwin held:
... [there is] no convincing reason that United States citizens in Iraq should or must lose previously-declared substantive due process protections during prolonged detention in a conflict zone abroad....In light of law declaring unconstitutional conduct or conditions of confinement that shock the conscience, as well as clearly established law recognizing constitutional protections against certain government action for United States citizens abroad, the Court finds that Doe has set forth facts that if true could show the violation of a clearly established constitutional right.
This is the second time Rumsfeld, currently represented by the Justice Department, has been allowed to be sued personally in a torture case. The other suit, which Rumsfeld is now appealing, was allowed last year [JURIST report].
[JURIST] A commission of the French Court of Cassation [official website, in French] on Thursday ordered an investigation into the newly appointed Managing Director of the International Monetary Fund (IMF) [official website], Christine Lagarde, for her involvement in a $400 million arbitration agreement with French businessman Bernard Tapie. Tapie won a settlement with state-owned bank Credit Lyonnais [official website, in French] in 2008 when Lagarde was acting as France's Finance Minister. A senior prosecutor contends that Lagarde "overstepped her authority" in allowing the arbitration to proceed [Le Monde report, in French] because the controversy involved a state-owned institution. Furthermore, an investigation would be needed to determine whether Lagarde sufficiently probed the neutrality of one of the arbitration judges. The investigation will be ongoing for several months, after which a decision will be made about whether to send the case to trial.
Lagarde is not the only French official to be subjected to investigations. The Court of Cassation ruled [JURIST report] in May that the corruption trial against former French president Jacques Chirac [BBC profile; JURIST news archive] could continue. Chirac is being tried for allegedly misusing funds during his time as Paris mayor in 1990. The trial began despite the fact that the main plaintiff dropped out of the suit. Last September, the Paris city council accepted a settlement deal [JURIST report] in which the former president agreed to pay USD $741,000 in compensation for the money paid out for false jobs. In exchange, the city agreed to drop out of the corruption suit. Chirac stated that the settlement was not an admission of guilt. A French judge placed Chirac under preliminary investigation [JURIST report] in December 2009. Chirac's trial on corruption charges marks the first time [JURIST comment] a former president will have to answer to charges against him in a court of law. The trial is a combination of two separate corruption-related cases, in which Chirac allegedly financed the Rally for the Republic (RPR), now renamed as the Union for a Popular Movement [party website, in French], by illegally establishing fake city positions between 1977 and 1995 for party members to collect salaries totaling several million dollars.
[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] announced on Wednesday that their affiliates are sending approximately 375 requests for information in 31 states to reveal how law enforcement uses location data tracking on cell phones [press release]. Smartphones now come with built-in global positioning systems (GPS), allowing users' movements to be tracked by law enforcement agencies, sometimes prior to having the phone in custody. But the extent that police are practicing this remains uncertain. Most jurisdictions have never encountered cell phone tracking as a legal question, so police are generally not required to obtain a warrant. The ACLU is demanding a review of information from each targeted department, including: if probable cause warrants are obtained to access cell phone location data, statistics on how frequently law enforcement gathers this data, how much money is being spent on cell phone tracking, and any other policies or procedures used to acquire cell phone location data. The ACLU also supports the Geolocation Privacy and Surveillance Act [materials], introduced to Congress in June, which would require government agencies to obtain a probable cause warrant before seeking location data.
As cell phones become more prevalent in society, they have become a tool for law enforcement officers to track or identify suspects. In January, the Supreme Court of California [official website] ruled [opinion, PDF] that law enforcement officers can legally search text messages [JURIST report] on a suspect's cell phone without a warrant incident to a lawful custodial arrest. The court held 5-2 that a search of the defendant's cell phone text messages in the police station 90 minutes after the arrest did not violate the Fourth Amendment [text] prohibition against unreasonable search and seizure without exigent circumstances. However, the California decision represents a split from the US Court of Appeals for the Third Circuit [official website] 2010 ruling and a 2009 decision [JURST reports] by the Ohio Supreme Court [official website] that both held that police must obtain a warrant before searching data stored on a cell phone. In June 2010, the US Supreme Court ruled [opinion, PDF; JURIST report] unanimously in City of Ontario v. Quon [Cornell LII backgrounder] that an employer's search of private text messages on a work-issued device does not violate the Fourth Amendment if the search is motivated by a legitimate work-related purpose and is not excessive in scope.
[JURIST] The UN Security Council (UNSC) [official website] released a statement [press release] Wednesday condemning human rights violations and use of force against civilians in Syria. The statement, delivered by Ambassador Hardeep Singh Puri [official profile] of India serving as August president, conveyed the UNSC's regret regarding the civilian deaths that resulted from mass protests and stated that those who were responsible for the violence should be held accountable. The UNSC asked Syrian authorities to refrain from using force, and allow relief workers to respond to the humanitarian needs of those affected by the unrest. The UNSC further asked Syria to cooperate with the Office of the UN High Commissioner for Human Rights (OHCHR) [official website] as it investigates the current humanitarian situation. The UNSC further called upon Syrian authorities to use the political process to resolve the tension between civilians and the government:
[T]he only solution to the current crisis in Syria is through an inclusive and Syrian-led political process, with the aim of effectively addressing the legitimate aspirations of and concerns of the population which will allow the full exercise of fundamental freedoms for its entire population, including that of expression and peaceful assembly.
However, Lebanon, one of the councils non-permanent members, disassociated itself from the statement preventing a unanimous resolution, but it did not move to block adoption of the statement. The UNSC requested that UN Secretary-General Ban Ki-moon [official profile] provide an update on the current situation in Syria within seven days. Ban called the statement a "clear message from the international community" and stated that his assessment will be "unbiased, impartial and true to the facts."
This is not the first time that the UN has called upon Syria to address allegations of violence and human rights violations in connection with mass protests. In April, the UN Human Rights Council (UNHRC) [official website] held an emergency special session and condemned the violence [JURIST report] used by Syrian authorities against peaceful protesters. The UNHRC called for a complete investigation of alleged human rights violations. Earlier in April, UN High Commissioner for Human Rights Navi Pillay [official profile] called for Syria to immediately halt the killings [JURIST report] and violence against civilian protesters in response to the fatal shootings of peaceful anti-government protesters. In March, Pillay urged the Syrian government [JURIST report] to ensure protesters' rights to peaceful expression and to work toward addressing their concerns instead of responding with violence.
[JURIST] Ten human rights groups said Thursday they would boycott a UK government inquiry into allegations that its secret services were complicit in torture of detainees in the aftermath of the 9/11 attacks. The groups, including Human Rights Watch (HRW) and Amnesty International (AI) [advocacy websites], sent a letter [text, PDF] to the Detainee Inquiry [official website] saying they would no longer participate after receiving information on the protocol and transparency of the inquiry. They argue that the inquiry conducted in the manner described to them would not comply with Article 3 of the European Convention on Human Rights [text, PDF] on the prohibition of torture. The joint letter states:
We are particularly disappointed that the issue of what material may be disclosed to the public will not be determined independently of Government and, further, that there will be no meaningful participation of the former and current detainees and other interested third parties. As you know, we were keen to assist the Inquiry in the vital work of establishing the truth about allegations that UK authorities were involved in the mistreatment of detainees held abroad. Our strong view, however, is that the process currently proposed does not have the credibility or transparency to achieve this. If the Inquiry proceeds on this basis, therefore, and in light of indications from the lawyers acting for former detainees that they will not be participating, we do not intend to submit any evidence or attend any further meetings with the Inquiry team.
AI released a public statement [text, PDF] on its decision to boycott the inquiry saying, "[c]rucially, [AI] believes that the Detainee Inquiry risks failing in its intended aim to systematically get to the truth of these allegations, and ensure that such abuses never happen again." The Detainee Inquiry released the protocol exactly one year after UK Prime Minister David Cameron [official website] said he would set up an inquiry [JURIST report] to investigate the allegations of torture. The announcement came 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.
HRW urged [JURIST report] the new UK government, in May 2010, to set up the inquiry on torture allegations and reaffirm its support for human rights. The rights group claimed that allegations of complicity in the torture of terrorism suspects have badly damaged the nation's reputation and that steps need to be taken to restore the nation's reputation as "a nation that respects human rights." The group cited reports from the Parliamentary Joint Committee on Human Rights and the House of Commons Foreign Affairs Committee [materials], which point out specific instances of torture and kidnapping in counterterrorism efforts. Among the many issues the HRW wanted the government to reconsider include the power of the government to detain terrorism suspects for 28 days without a trial and the government's ability to deport detainees to countries where they may be tortured.
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