[JURIST] Germany's Federal Constitutional Court [official website, in German] on Tuesday rejected as unfounded three constitutional complaints against German and European legal instruments and other measures in connection with both the European Monetary Union rescue package and the financial aid package for Greece. The high court ruled [press release] that by voting through national acts that implement the broader European measures, the Bundestag, the national Parliament of the Federal Republic of Germany [official website], did not unconstitutionally impair its own ability to adopt and control the nation's budget, nor did it infringe on the budget autonomy of future parliaments. The court's approval of the Monetary Union Financial Stabilisation Act, which authorizes the aid for Greece, and the Act instituting the European Financial Stabilisation Mechanism (EFSM) [materials], was welcomed by euro zone nations [AFP report] and the European Commission, and hailed by German Chancellor Angela Merkel [official website] as validation of her much criticized euro zone policy. Additionally, share prices across Europe markets soared following the court's announcement, with German stocks peaking at a rise of more then three percent.
In May of last year the German constitutional court refused to issue a temporary injunction [JURIST report] against the German government's 22.4 billion ($28.5 billion) contribution to the bailout package for Greece, which has been gripped by a dire debt crisis [BBC backgrounder] and faces severe austerity measures as it grapples with its debt. The court held that the complainants seeking the injunction did not produce any concrete evidence that their rights under Germany's Basic Law could be "seriously and irreversibly" affected as a result of the guaranteed loan. The court's press release also noted that potential liability risk as a result of the contribution is outweighed by reducing the risks of damaging Germany's national economy as a result of instability of the European Monetary Union. The EU and International Monetary Fund (IMF) [official website] announced the initial 110 billion bailout package for Greece earlier that month, and it was subsequently approved by euro zone leaders [BBC report].
[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Tuesday affirmed [opinion, PDF] the 2010 denial of petition for a writ of habeas corpus [Cornell LII backgrounder] for Guantanamo [JURIST news archive] detainee Shawali Khan [NYT profile]. Khan is an Afghan citizen who, at the time of his capture in mid-November 2002, lived in Kandahar, Afghanistan, and is accused of belonging to Hezb Islami Gulbuddin (HIG) [GlobalSecurity backgrounder], an active anti-American Afghan insurgency group with ties to the Taliban and al Qaeda [JURIST news archive]. On appeal, Khan contended there is insufficient reliable evidence in the form of government-offered intelligence reports to establish that he was part of HIG at the time of his capture. The court explained its standard of review in evaluating Khan's appeal:
Whether a detainee was "part of" an associated force is a mixed question of law and fact. That is, whether a detainee's alleged conduct is sufficient to make him "part of" a force and whether the alleged connections between that force and al Qaeda and/or the Taliban are sufficient to render it an "associated force" are legal questions that we review de novo. Whether the government has proven that conduct and those connections, however, are factual questions that we review for clear error.
After a lengthy analysis of evidence and the district court's findings, the appeals court found that there was no clear error of law or fact and affirmed the denial of Khan's petition.
Last September, Judge John Bates of the US District Court for the District of Columbia [official website] ruled [opinion, PDF] that the US government can indefinitely hold Khan [JURIST report] at the detention facility in Guantanamo. Lawyers for Khan have argued that he was a shopkeeper in Kandahar and not involved with fighting against American forces. They contended that Khan was captured by corrupt Afghans who turned him over to American forces and lied about his involvement with insurgents. The defense also presented evidence that HIG had no presence in the Kandahar region when Khan was captured. The case against Khan relies heavily on intelligence concurrently gathered by US intelligence collectors through several informants, some of whom are disaffected members of HIG. According to the court's opinion, such intelligence ultimately led to a decision by US military officials to neutralize the HIG cell, including the execution of an operation to capture Khan at his shop. The operation was a success, and Khan's home and shop were searched after his arrest, yielding a variety of physical evidence in the form of notebooks and letters. Heavily redacted classified intelligence reports state that the search of Khan's properties uncovered further, particularly incriminating evidence that confirmed his role in the Kandahar HIG cell.
[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Tuesday ordered [opinion, PDF] the Department of Justice (DOJ) [official website] to disclose docket information of certain cases in which the DOJ used cell phone location data to track criminal suspects. The suit was filed by the American Civil Liberties Union (ACLU) [advocacy website] in July 2008 under the Freedom of Information Act (FOIA) [text], with the court asked to determine whether the public interest goals of the FOIA outweighed the privacy concerns of disclosing the information. The DOJ supported its argument against disclosure by citing Exemption 7(C), which states that "records or information compiled for law enforcement purposes" may be withheld "to the extent that disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy." However, the court found that because the privacy interests defendants retain regarding the facts of their convictions or public guilty pleas fall on the lower end of the spectrum, disclosure of facts so related does not constitute an unwarranted invasion of privacy, making Exemption 7(C) inapplicable. Additionally, the court supported its decision by distinguishing it from cases that resulted in more extensive disclosures with Judge Merrick Garland writing:
In this case, however, disclosure will reveal only the "bits" not the "whole." As already discussed, the most that disclosure is likely to lead to is the fact of a single conviction, not a comprehensive scorecard of a person's entire criminal history across multiple jurisdictions. Nor is there a web of statutory or regulatory policies obscuring that information, nor much expense nor logistical difficulty in gathering it.
The court's decision affirmed in part that of the US District Court for the District of Columbia [official website], which also held that disclosure of information related to cases in which persons were convicted or entered public guilty pleas was appropriate given the lower privacy interests. However, the appeals court remanded the issue of whether disclosure is appropriate in cases involving individuals who were acquitted or whose cases were dismissed or sealed.
The ACLU is not finished with its investigation into how governments use cell phone location data to track criminal suspects. Last month the group announced that their affiliates were sending approximately 375 requests for information [JURIST report] in 31 states to reveal how law enforcement uses location data tracking on cell phones. 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.
[JURIST] Amnesty International (AI) [advocacy website] on Wednesday criticized Sri Lanka's investigation into allegations of war crimes committed during its 26-year civil war with the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive] and urged the UN to conduct an independent investigation [report, PDF] to ensure justice for the victims and their families. The report argues that the Lessons Learnt and Reconciliation Commission (LLRC), established by President Mahinda Rajapaksa [official website] in 2010 to address allegations of human rights violations during the last months of the war, is ineffective in nearly every way and does not meet international standards on national commissions of inquiry. Instead, AI contends that the LLRC exists merely to "deflect international pressure and silence internal critics." According the the report, the commission has failed to investigate witness testimony that would help to establish the identities of perpetrators as well as failed to protect the witnesses from threats and retaliation. In addition to addressing these shortcomings, AI desires an independent investigation for two other reasons, which it deems crucial:
(1) to protect the global principle of accountability for international crimes, and prevent the establishment of a negative precedent for other states that may emulate Sri Lanka's attempt to flout international law so egregiously; and (2) to help the process of reconciliation inside Sri Lanka through findings issued by a neutral outside body free of perceptions of bias, that can establish the truth and provide justice for the crimes committed by all sides to the conflict, including the LTTE, government forces and their affiliates.
Amnesty International's Asia Pacific Director warned that the international community "must not be deceived into viewing the LLRC as a credible replacement for an international inquiry" and that this is the only way the "process of post-conflict reconciliation [can] begin to move forward."
AI has not been the only organization to criticize the conduct of the Sri Lankan government in handling affairs related to the war. Last month, Human Rights Watch (HRW) [advocacy website] criticized [JURIST report] a report released by the Sri Lankan government for not taking responsibility for alleged violations of the laws of war. The Sri Lankan Ministry of Defense [official website] released its report entitled, "Humanitarian Operation Factual Analysis", where for the first time it admitted that the military caused civilian deaths near the end of the civil war. The report detailed numerous alleged abuses of LTTE against civilians including using them as human shields. Sri Lanka says it took reasonable steps to avoid civilian casualties. Secretary of Defence Gotabaya Rajapaksa [official profile], in releasing the report said: "The false claims and allegations made by Tamil Diaspora together with the LTTE international network will be laid to rest with the release of the factual analysis reports." Still, HRW criticized the report for its lack of discussion over the military's responsibility for alleged war crimes such as "frequent indiscriminate shelling of civilian areas" and summary executions of LTTE fighters. Brad Adams, Asia director at HRW, said: "The Sri Lankan government is finally admitting that its forces caused civilians losses during the conflict's final months, but unconvincingly claims no responsibility. This is just the latest and glossiest effort to whitewash mounting evidence of government atrocities during the fighting."
[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [text, PDF] Tuesday that House Bill 2013 [text, PDF], a law rescinding health benefits for same-sex couples in the public sector, is in violation of the equal protection clause of the Constitution. The ruling upholds an injunction issued by a district court that has temporarily reinstated these benefits, although the law itself has not fully been ruled on in state courts. The three judge-panel echoed many of the district court's sentiments, rejecting arguments from the state of Arizona that the case created an unequivocal right to health care and that the law was not rationally related to promoting marriage nor did it significantly balance the budget:
Defendants nevertheless contend on appeal that this law is rationally related to the state's interests in cost savings and reducing administrative burdens. As the district court observed, however, the savings depend upon distinguishing between homosexual and heterosexual employees, similarly situated, and such a distinction cannot survive rational basis review.
A representative for Governor Jan Brewer (R) [official website] said they are considering appealing the ruling [Arizona Republic report] and that the court had created an inequality by making it impossible to eliminate benefits for same-sex couples, but permissible to eliminate them for opposite sex couples.
A 2008 executive order from then-governor Janet Napolitano expanded health care benefits to all domestic partners of government employees, gay or straight. The next year, Brewer passed House Bill 2013 in the midst of a state budget crisis, which revoked health care benefits to domestic partners and children still on their parents' plan. However, the law was only enforced on homosexual domestic partners, and came into effect in January 2011. Arizona banned same-sex marriage [JURIST report] in 2008.
Several media outlets interpreted the court as being in favor of granting standing. Lambda Legal [advocacy website], one of the plaintiffs, called the court's potential ruling impossible to predict [press release] and remained optimistic: "We continue to hope that the Court will ultimately decide that small groups of unelected individuals who are answerable to no one should not be able to act on behalf of the state."
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