JURIST - Paper Chase: Sunday, December 18, 2011

[JURIST] The US handed over the last detainee in Iraq, Ali Mussa Daqduq, to Iraqi authorities on Friday as part of the end of the Iraq War [JURIST backgrounder]. Daqduq allegedly has links to Hezbollah [JURIST news archive] and is accused of planning a raid in 2007 which resulted in the deaths of five US soldiers [NYT report]. US President Barack Obama [official website] considered trying Daqduq on US soil [JURIST report] but was unable to come to an agreement with Iraqi officials. Since no decision could be reached, Duqdaq had to be transferred to Iraq officials pursuant to the 2008 status-of-forces agreement between the US and Baghdad. The decision to turn over Duqdaq will likely spark political controversy, because many politicians were concerned with releasing Duqdaq [letter, PDF] to Iraqi authorities:

If [Duqdaq] is released from custody, we firmly believe that he will seek to harm or kill more American servicemen and women. Our concern is that Iraq's current legal regime could allow for Daqduq to to return to the fight either as a result of an inability to detain and prosecute him under Iraqi criminal laws, ineffective incarceration, or other challenges. We know that matters such as these remain the subject of ongoing discussions with our Iraqi partners, but we believe that the potential transfer of Daqduq to Iraqi authority could pose an unacceptable risk to US national security interests.

Iraqi Prime Minister Nuri Kamal al-Maliki stated that Iraq could not allow the Daqduq to be transferred to the US because current Iraqi law did not permit it. It is currently unclear whether the administration will still seek to have Daqduq extradited eventually to be tried on US soil or to be tried under a military commission [JURIST news archive] at Guantanamo Bay [JURIST news archive].

The location of the trials of foreign terror suspects detained by the US has been a controversial issue. In July the US brought Somali terror suspect Ahmed Abdulkadir Warsame to the US to face a civil trial in New York [JURIST report], a decision that has sparked harsh criticism from members of Congress who argued that terror suspects should be held at Guantanamo Bay. Obama ordered military commissions of detainees to resume [JURIST report] in March after he initially suspended new charges at Guantanamo Bay shortly after taking office in 2009. US Attorney General Eric Holder [official website] has consistently advocated [JURIST report] that terror suspects should be tried in civilian courts despite finding little support from Congress. In April, Holder announced that Khalid Sheikh Mohammed [BBC profile; JURIST news archive] and four other co-conspirators will be tried before a military commission [JURIST report] for their roles in the 9/11 terrorist attacks. Holder, who wanted the accused be tried before a federal civilian court [JURIST report], referred the cases to the Department of Defense (DOD) [official website] after Congress imposed a series of restrictions [JURIST report] barring the transfer of Guantanamo detainees to the US.

[JURIST] The Indonesian parliament approved a bill on Friday that gives the government eminent domain [JURIST news archive] powers to seize land from individuals without their consent, as long as compensation is provided. Proponents of the bill argue that it will allow the government to increase infrastructure [Reuters report], leading to improvements in the economy. A day after the bill passed, Fitch Ratings [official website] upgraded Indonesia to an investment grade rating. Human rights groups argue that the land acquisition bill threatens notions of traditional lands rights and will lead to conflict between land owners and the government.

Eminent domain has become an issue in many members of the Association of Southeast Asian Nations [official website] recently due to their improving economies [Jakarta Post report]. However, controversy surrounds the governments' expanding use of their powers to seize land from indigenous people. In September Malaysia's Federal Court ruled unanimously against [JURIST report] indigenous people fighting against the Sarawak government's seizure of land to build a USD $2.3 billion dam project. In December, the US government pledged to support the UN Declaration on the Rights of Indigenous Peoples [JURIST report], a non-binding UN treaty expressing support for the rights of indigenous peoples. The US was the last member to lend its support to the treaty. In August 2010, UN Secretary General Ban Ki-moon [official website] called on governments to improve the living conditions of indigenous peoples [JURIST report] and support the UN Declaration on the Rights of Indigenous Peoples.

[JURIST] The US Court of Appeals for the Eighth Circuit [official website] on Friday affirmed [order, PDF] an injunction against a Nebraska abortion law [LB 594 materials]. The US District Court for the District of Nebraska [official website] issued a preliminary injunction [JURIST report] in July 2010 against the law, known as the Women's Health Protection Act, which requires physicians to evaluate patients to determine that their choice to have an abortion [JURIST news archive] is voluntary and to inform the patients of all risk factors and complications [LB 594 text, PDF] that have been statistically associated with abortion and published in peer-reviewed journals 12 months prior to the pre-abortion evaluation, as well as earlier studies. The district court ruled that the law was unconstitutional. Nebraskans United for Life (NuLife) [advocacy website] asked for a motion to reconsider, which was denied, and they subsequently appealed. The Eighth Circuit refused to reconsider the motion based on its timeliness, holding, "[t]he record demonstrates the district court considered the proper factors, including the fact the litigation was terminated procedurally, NuLife failed to justify its delay in light of its prior knowledge of the case, and the parties would be prejudiced because final judgment of their settlement had already been entered." Given their holding, they did not reach a decision on the alternative bases for the appeal.

In August 2010 Nebraska Attorney General Jon Bruning [official website] announced that he would agree to a permanent injunction [JURIST report] against the Nebraska law because he believed there was little chance that the law would withstand a court challenge. The abortion law was supposed to go into effect in July 2010. The lawsuit was filed [complaint, PDF; JURIST report] in June 2010 by women's rights group Planned Parenthood of the Heartland [advocacy website] arguing that the law was unconstitutional.