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Legal news from Tuesday, January 10, 2012




Supreme Court upholds arbitration agreement
Jaclyn Belczyk on January 10, 2012 2:13 PM ET

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[JURIST] The US Supreme Court [official website] ruled 8-1 [opinion, PDF] Tuesday in CompuCredit Corp. v. Greenwood [SCOTUSblog backgrounder] that, because the Credit Repair Organizations Act (CROA) is silent on whether claims can proceed in an arbitrable forum, the Federal Arbitration Act (FAA) [text] requires the arbitration agreement to be enforced according to its terms. The case arose from a dispute between consumers and companies that issue low-rate credit cards to people with bad credit. The consumers filed a lawsuit over credit card fees, and the US Court of Appeals for the Ninth Circuit ruled that they had a right to sue in federal court [opinion, PDF] rather than face arbitration. In an opinion by Justice Antonin Scalia, the Supreme Court reversed the Ninth Circuit:
The flaw in [respondents'] argument is its premise: that the disclosure provision provides consumers with a right to bring an action in a court of law. It does not. Rather, it imposes an obligation on credit repair organizations to supply consumers with a specific statement set forth (in quotation marks) in the statute. The only consumer right it creates is the right to receive the statement, which is meant to describe the consumer protections that the law elsewhere provides.
Justice Sonia Sotomayor filed an opinion concurring in the judgment, which Justice Elena Kagan joined. Justice Ruth Bader Ginsburg filed a dissenting opinion.

The court heard oral arguments [JURIST report] in the case in October. The attorney for CompuCredit argued that strong federal policy in favor of arbitration overrides any differing laws that discourage waivers of rights to sue. Respondents argued that the CROA explicitly bans any suggestion of waiving the right to sue and that credit card companies should be fined for even asking applicants to sign an arbitration waiver.




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Rights group seeks release of Guantanamo interrogation videos
Max Slater on January 10, 2012 1:43 PM ET

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[JURIST] The Center for Constitutional Rights (CCR) [advocacy website] filed a lawsuit [complaint, PDF] on Monday seeking the release of videotapes of the interrogation of an inmate held at the Guantanamo Bay prison [JURIST news archive]. The CCR filed the lawsuit in the US District Court for the Southern District of New York [official website] on behalf of Mohammed al-Qahtani [NYT profile; JURIST news archive], a Saudi citizen believed to be the twentieth hijacker in the 9/11 attacks [JURIST news archive]. The CCR claims that the Freedom of Information Act (FOIA) [text, PDF] compels the US government to publicly release the videotapes. The complaint argues that releasing the videotapes would serve the public interest "by providing the American [people] with unique documentation of the systematic abuses at Guantanamo." The comlaint also graphically describes the brutality al-Qahtani allegedly experienced in Guantanamo: "Mr. al-Qahtani's treatment consisted of daily 20-hour interrogation periods, along with severe sleep deprivation and isolation. United States military personnel flooded Mr. al-Qahtani's cell with light and loud music and/or sound during his brief periods of rest. He was isolated from other prisoners and deprived of sensory stimulation under a harsh regime of solitary confinement." A spokesperson for federal government attorneys in New York declared that the government had no comment on the lawsuit [AP report].

Al-Qahtani has been at the center of many controversies pertaining to the treatment of prisoners held at Guantanamo Bay. In April the US military released hundreds of classified documents to select news organizations [NYT report], including one which revealed that al-Qahtani was leashed like a dog, sexually humiliated and forced to urinate on himself. In January 2009 Susan Crawford, then-convening authority of military commissions, admitted [JURIST report] that torture tactics were used against al-Qahtani. Crawford refused to allow prosecution of al-Qahtani because he was tortured. In November 2008 US military prosecutors filed a new set of charges against al-Qahtani over his alleged role in the 9/11 attacks, after dropping charges in May 2008 [JURIST reports] following suspicions that al-Qahtani's statements were coerced by US torture [JURIST report]. US military personnel captured al-Qahtani in Afghanistan in December 2001 and transferred him to Guantanamo, where he has been held ever since.




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Turkish court accepts indictment against former president
Sung Un Kim on January 10, 2012 1:42 PM ET

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[JURIST] The Ankara 12th High Criminal Court accepted an indictment on Tuesday charging former Turkish president Kenan Evren [official website] with crimes against the state in relation to the 1980 coup. The ex-president was the head of the 1980 military coup that overthrew the existing government and ended the violence between the left and right-wing groups. The former air force chief Tahsin Sahinkaya was also included in the indictment. They are the only two survivors of the five men who planned the coup. Evren was first questioned in June when Article 15 of the Constitution [text], which has given immunity to the leaders of the coup, was amended. The prosecution is seeking life imprisonment. The trial date has not yet been set.

The acceptance of the indictment came after the prosecution charged the two men [JURIST report] last week. Turkey has been facing numerous coup plots during the past years and continues to bring charges against military officials and individuals for such crimes against the government. In November, 13 Turkish journalists were accused of plotting [JURIST report] to overthrow the government. In August, the court also issued arrest warrants [JURIST report] for seven generals and admirals in relation with allegations that they created an anti-government website in 2009. After detainment for questioning three high ranking military officials in connection with their alleged coup plot, the Turkish court released [JURIST report] them but they remained under investigation.




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Supreme Court prohibits federal inmates from seeking damages from private prison employees
Hillary Stemple on January 10, 2012 1:34 PM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Tuesday in Minneci v. Pollard [SCOTUSblog backgrounder; JURIST report] that where state tort law authorizes adequate remedies for individuals harmed by private employees working at a federal facility, and where the private employees have no employment or contractual relationship with the government, no remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics [opinion text] can be applied. Respondent Richard Lee Pollard filed a complaint in 2002 against employees of the Wackenhut Corrections Corporation, which operated the federal prison facility where he was a prisoner. Pollard alleged that employees violated his Eight Amendment [text] rights by denying him adequate medical care which resulted in injury and "cruel and unusual punishment." The US Court of Appeals for the Ninth Circuit reversed [opinion, PDF] a federal district court judge and held that the Eight Amendment provided Pollard with a Bivens action against the private prison employees. In the majority opinion authored by Justice Stephen Breyer, the court held that in determining whether a Bivens remedy can be applied to alleged Eight Amendment violations, "the question is whether, in general, state tort law remedies provide roughly similar incentives for potential defendants to comply with the Eighth Amendment while also providing roughly similar compensation to victims of violations." The court concluded that while state law tort remedies may be more limited than some Bivens remedies, prisoners alleging a violation of their Eight Amendment rights by private employees at federal facilities would have adequate remedies under state tort law, and therefore no Bivens remedy can apply. Justice Antonin Scalia authored a concurring opinion in the case in which he was joined by Justice Clarence Thomas. Justice Ruth Bader Ginsburg was the lone dissenter in the case.

The court heard oral arguments [JURIST report] in the case in November. During oral arguments the court appeared to be strongly convinced by the government-petitioner's argument that Bivens should continue to be used as a last resort and not expanded when state law provides adequate redress. Respondents argued that Bivens casts a wide net and allows any specific civil action that is not delineated by that state's law, whereas several justices argued with the attorney that almost any action could be addressed by state tort law. Respondent also suggested that as his client was a federal prisoner prosecuted by the federal government, with only access to federal law in the prison library, he should be allowed to address his claims in federal court.




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Tenth Circuit upholds ruling blocking Oklahoma Islamic law ban
Brandon Gatto on January 10, 2012 1:15 PM ET

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[JURIST] The US Court of Appeals for the Tenth Circuit [official website] on Tuesday unanimously upheld [opinion, PDF] a ruling blocking the implementation of an Oklahoma constitutional amendment [text, PDF] that would have prohibited state courts from considering Islamic and international law in deciding cases. Approved by approximately 70 percent [election results] of Oklahoma voters, but challenged by the American Civil Liberties Union (ACLU) and the Council on American-Islamic Relations (CAIR) [advocacy websites], State Question 755, also called the "Save Our State Amendment," was classified by the court as singling out Islam for unfavorable treatment in state courts. The court ruled that the provision likes violates the Establishment Clause of the First Amendment [text]:
Federal courts should be wary of interfering with the voting process, but we agree with the district court and the Sixth Circuit that "'it is always in the public interest to prevent the violation of a party’s constitutional rights.'" ... "While the public has an interest in the will of the voters being carried out ... the public has a more profound and long-term interest in upholding an individual's constitutional rights." ... We therefore hold that the district court did not abuse its discretion in determining that the preliminary injunction was not adverse to the public interest.
Though defended by Oklahoma Solicitor General Patrick Wyrick as necessary to prevent confusion in the courts, Daniel Mach, director of the ACLU Program on Freedom and Religion and Belief [advocacy website], said in a press release [text] that "this amendment did nothing more than target one faith for official condemnation ... [and] [e]ven the state admits that there has never been any problem with Oklahoma courts wrongly applying religious law." Moreover, Chandra Bhatnagar, senior attorney with the ACLU Human Rights Program [advocacy website], added that "[a]ttempts to paint international law as irrelevant to the American legal system are wrong-headed and dangerous," and that preventing courts from considering international law violates the Constitution and undermines the ability of courts to interpret laws and treaties.

Despite its approval by voters in November 2010, the Oklahoma state amendment was soon after blocked by a federal judge [JURIST reports]. Before Tuesday's ruling, the constitutionality of the amendment has been consistently controversial, as it has been both condemned as un-American [JURIST comment], and also supported as a preemptive strike [Daily Mail report] against the use of Islamic law in Oklahoma. The lawsuit was originally filed on behalf of Muneer Awad [WT backgrounder], executive director of the Oklahoma CAIR.




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Supreme Court rules on timing of habeas corpus appeals
Hillary Stemple on January 10, 2012 11:54 AM ET

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[JURIST] The US Supreme Court [official website] issued a ruling [opinion, PDF] on Tuesday in Gonzalez v. Thaler [SCOTUSblog backgrounder; JURIST report] interpreting two sections of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) [materials] and holding that a judgment becomes final for the purposes of habeas corpus review when the time for pursuing direct review to either state's high court or the Supreme Court expires. Additionally the court held that a federal district court's failure to cite a constitutional issue on a certificate of appealability (COA) as required by 28 USC § 2253(c) [text] does not deprive the court of appeals of subject matter jurisdiction to hear the habeas petitioner's appeal. Petitioner Rafael Gonzalez was convicted of murder in Texas and had his conviction affirmed by the state's intermediate appellate court in 2006. Gonzalez failed to file an appeal with the Texas Court of Criminal Appeals [official website], the state's highest court for criminal appeals, and his period for discretionary review with the court expired on August 11, 2006. He filed a petition for habeas relief on January 24, 2008, alleging that a nearly 10-year delay between his indictment and trial violated his right to a speedy trial as guaranteed by the Sixth Amendment [text] of the US Constitution. Both the district court and the US Court of Appeals for the Fifth Circuit ruled that the habeas petition was barred due to failure to file the petition within one year of final judgment as required by 28 USC §2244(d)(1) [text]. In an 8-1 decision authored by Justice Sonia Sotomayor, the court concluded that §2244(d)(1) consists of two prongs, relating to distinct categories of petitioners—those seeking habeas relief at the end of a direct review, and those seeking habeas relief without exhausting direct reviews of appeals on the merits of the case. According to the court:
For petitioners who pursue direct review all the way to this Court, the judgment becomes final at the "conclusion of direct review"—when this Court affirms a conviction on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes final at the "expiration of the time for seeking such review"—when the time for pursuing direct review in this Court, or in state court, expires.
Justice Antonin Scalia authored the dissenting opinion in the case arguing that failure of a federal district court to identify a substantial constitutional violation as required by § 2253(c) should prevent the court of appeals from having jurisdiction and stating that the court's ruling "makes a hash of the statute" and its jurisdictional requirements.

The court heard oral arguments [JURIST report] in the case in November. During arguments, the petitioner argued that a COA that does not fully comply with all the requirements of the statute, nonetheless confers jurisdiction on the federal appeals court. Petitioner also argued that the one-year statute of limitations for federal habeas corpus review should not begin until the ruling is final according to State law, as opposed to a uniform federally-imposed definition of a final ruling. The state argued that, because the COA was incomplete due to the district court judge's error, it did not meet the requirements of the statute and, therefore, did not confer jurisdiction on the appeals court. The state also argued that the statute provides a two-prong to determine with the clock starts to run and that, even where that might start the clock running before state habeas corpus review becomes available, the clock should start nonetheless.




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Israel approves new law to deter illegal migrants
Andrea Bottorff on January 10, 2012 11:26 AM ET

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[JURIST] The Israeli Knesset [official website] Tuesday passed a bill that imposes harsher penalties on illegal migrants in Israel, as well as on Israelis who help illegal migrants. The bill amends the Prevention of Infiltration Law of 1954 [text], broadening the law to include not only individuals suspected of terrorism, but all illegal migrants. Under the new law, individuals living in the country illegally can be arrested and held in prison indefinitely without trial. Israelis caught helping illegal migrants will face up to 15 years in prison if the migrants are involved in criminal activities. Currently, the Israeli government may not detain illegal migrants for more than 60 days. For years, Israeli Prime Minister Benjamin Netanyahu [official profile], who voted for the bill, has expressed his concern [press release] over increasing waves of illegal immigration into Israel, particularly from Africa. Netanyahu has called such migration a "tangible threat" to the Jewish majority in the country. Amnesty International (AI) [advocacy website] has criticized the bill as a violation of human rights [press release] and international treaties, including the Refugee Rights Convention of 1951 [UNHCR materials], which aided Jewish refugees after World War II. More than 18,000 Africans are believed to have migrated illegally into Israel by crossing the border with Egypt.

The Israeli government has been active in passing strict laws in the new year. An Israeli government panel Monday approved a bill that would make it illegal to use any Nazi symbols [JURIST report], names, or images, including the use of the term "Nazi" and any clothing resembling that worn by prisoners at concentration camps. The bill would impose a fine up to USD $26,000 and a possible jail sentence of six months, although Nazi symbols would be allowed for educational and historical purposes. Last week, Knesset passed a law that changed the rules [JURIST report] governing the selection of Supreme Court [official website] justices. The law has been criticized [AP report] for undermining the independence of the judiciary in an effort to further a conservative judge favored by the government. Many fear the new laws will influence judicial decisions, impede upon the rights of the press and be used to harass liberal groups.




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Pakistan high court warns PM to comply with order to investigate president
Andrea Bottorff on January 10, 2012 9:45 AM ET

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[JURIST] The Supreme Court of Pakistan [official website] Tuesday issued an order warning Prime Minister Yousuf Reza Gilani [BBC profile] that continued failure to comply with court rulings could result in contempt of court proceedings or his removal from office [order, PDF]. The court said that Gilani has failed to follow court orders [JURIST report] to reopen corruption cases against President Asif Ali Zardari [official website]. The court also accused the government of violating the constitution and threatening the balance of power in the country:
Obedience to the command of a court, and that too of the Apex Court of the country, is not a game of chess or a game of hide and seek. It is, of course, a serious business and governance of the State and maintaining the constitutional balance and equilibrium cannot be allowed to be held hostage to political tomfoolery or shenanigans. ... We may unhesitatingly observe that in our country governed by a Constitution political loyalty cannot be accepted as stronger than loyalty to the State and dictates of a political master or party cannot be allowed to be put up as a defence to failure to obey the Constitution.
The Chief Justice will review the case and consider several options suggested by the court, including executing court proceedings against Gilani and Zardari, ordering Gilani excluded from Parliament, forming a commission to aid in the performance of the court orders or delaying a decision to allow the people to decide the next step. A hearing is scheduled for January 16, which Gilani must attend.

Pakistan has faced an ongoing struggle with corruption that the courts have attempted to battle. Last month, the Supreme Court formed a judicial committee to investigate a secret memo [JURIST report] sent from an unknown Pakistani source to US Admiral Mike Mullen in May asking for help in preventing a suspected army coup. Zardari and former Pakistan ambassador to the US Husain Haqqani have been accused of writing or having knowledge of the memo, and both have denied these allegations. Tuesday's warning stems from court orders issued when the Supreme Court struck down [JURIST report] the National Reconciliation Ordinance (NRO) [text] in 2010, which granted immunity to Zardari and 8,000 other government officials from charges of corruption, embezzlement, money laundering, murder and terrorism between January 1986 and October 1999. The NRO was signed [JURIST report] by former Pakistani president Pervez Musharraf [BBC profile] in 2007.




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Yemen cabinet approves immunity for Saleh
Jaimie Cremeans on January 10, 2012 9:09 AM ET

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[JURIST] Yemen's newly appointed Council of Ministers on Sunday approved a draft law [text, in Arabic] that would grant President Ali Abdullah Saleh [official website, in Arabic; JURIST news archive] immunity from any charges against him for alleged human rights violations from his time in office. The law also grants immunity to anyone who worked for Saleh's civil, military or security agencies during his 32-year reign as president. Some of the law's purposes are to "contribute to all the children of the Yemeni people in the process of construction and development" and "contain[] ... the effects caused by the internal crisis that occurred last period." Now that it has been passed by the council, the bill will be sent to Yemen's parliament for final approval.

UN High Commissioner for Human Rights Navi Pillay urged the Yemeni government Friday not to pass the proposed legislation [JURIST report] because it would be unjust to the victims of human rights violations. Pillay had requested an investigation [JURIST report] of Saleh and his administration in early December for alleged human rights violations in violence against protesters. The UN Security also urged the Yemeni government [JURIST report] to stop violence against protesters in September, weeks after it had issued a press release declaring a humanitarian crisis [text] in the country. Saleh agreed to step down [JURIST report] from his office in April amidst pressure from nationwide protests.




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Trial begins for last US Marine charged in Haditha killings
Jaimie Cremeans on January 10, 2012 8:30 AM ET

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[JURIST] The Western Judicial Military Circuit Court at Camp Pendleton [official website] heard opening statements Monday in the trial of the US Marine squad leader allegedly responsible for the deaths of 24 Iraqi civilians in November 2005. Staff Sgt. Frank Wuterich [advocacy website; JURIST news archive] is charged [case materials] with voluntary manslaughter, aggravated assault, reckless endangerment, dereliction of duty and obstruction of justice in relation to the killings, which took place in the Iraqi town of Haditha [JURIST news archive] after Wuterich supposedly overreacted to the roadside bombing death of a fellow Marine. Wuterich, who had no previous combat experience, allegedly ordered his men to "shoot first and ask questions later" when he sent them to hunt for insurgents [AFP report] in several houses along the road following the bombing. Many of the killed Iraqis were shot in the head inside the houses. The victims included 10 women and children killed at point-blank range. The Marine jurors for the trial include four officers and four enlisted men, ranging in rank from gunnery sergeant to lieutenant colonel, all of whom have done tours of duty in Iraq. Seven other marines were charged throughout the investigation, but charges were dismissed in six cases, and one Marine was acquitted, angering Iraqi authorities who wanted the Marines tried in Iraqi courts. Wuterich is the sole Marine still facing charges relating to the Haditha investigation.

A US military judge denied a motion to dismiss [JURIST report] the charges against Wuterich in 2010, setting the trial in motion. His trial was postponed in 2008 [JURIST report] while prosecutors appealed a decision to get rid of a subpoena for an unaired portion of a CBS interview with him regarding the incident. Wuterich was originally charged with unpremeditated murder, but that charge was dropped after a recommendation from an investigating officer [JURIST report] in 2007. Charges against Lt. Col. Jeffrey Chessani [JURIST news archive] were dropped in June 2008, a decision that was upheld [JURIST reports] the following March. Also in June 2008 1st Lt. Andrew Grayson [JURIST news archive] was cleared on all counts, including charges that he ordered a subordinate officer to delete photographic evidence [JURIST reports] of the killings. In August 2007 all charges against Lance Cpl. Justin Sharratt and Capt. Randy W. Stone were dismissed [JURIST report]. An official report on the Haditha incident by US Army Major General Eldon Bargewell found "serious misconduct" [JURIST report] at all levels of the US Marine Corps chain of command.




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