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Legal news from Wednesday, March 14, 2012 |
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Federal judge strikes down portions of Illinois election law
Dan Taglioli on March 14, 2012 12:39 PM ET

[JURIST] A judge for the US District Court for the Northern District of Illinois [official website] Tuesday struck down two recently-enacted parts of the Illinois Election Code [text] designed to cap campaign contributions. Judge Marvin Aspen issued an injunction [order, PDF] against the Illinois State Board of Elections (ISBE) [official website] from enforcing § 5/9-8.5(d) prohibiting any political action committee (PAC) from accepting individual contributions over $10,000 and § 5/9-2(d) prohibiting any person from maintaining or establishing more than one PAC. The non-profit, pro-choice organization Personal PAC [advocacy website] brought the lawsuit [complaint, PDF] against the ISBE last month, seeking a preliminary and permanent injunction against the two provisions so the abortion rights group could create an independent-expenditure PAC and take unlimited contributions. The court agreed that together the election code sections violate the First Amendment [Cornell LII backgrounder] under the US Supreme Court's decision in Citizens United v. Federal Election Committee [Cornell LII backgrounder; JURIST report], finding that government interest in preventing corruption cannot justify restriction on independent expenditures, and the Seventh Circuit's ruling in Wisconsin Right to Life v. Barland [opinion, PDF; JURIST report], finding no valid government interest sufficient to impose restrictions on contributions to independent-expenditure-only PACs such as Personal PAC. In his opinion Aspen stressed his ruling is a narrow one, applicable only to restrictions on independent expenditures—money used to advocate for or against a specific candidate without coordination with any public official, candidate, or political party—and that the lawsuit did not contest restrictions on contributions made directly to political candidates.
Illinois campaign contribution restrictions were passed in 2009 as part of election reform efforts following the indictment of former governor Rod Blagojevich [personal website; JURIST news archive], who was arrested [JURIST report] in December 2008 on corruption charges including allegations that he conspired to sell the Senate seat left vacant by US President Barack Obama. Blagojevich was convicted in June on 18 counts of corruption. He was previously found guilty of making false statements to the FBI [JURIST report], but the jury in that trial remained deadlocked on the 23 other charges. The prosecutors dropped some of the charges [JURIST report] to simplify the case for retrial, including some for racketeering. The Illinois State Senate voted unanimously [JURIST report] to convict Blagojevich of abuse of power and remove him from office in January 2009.


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Argentina Supreme Court legalizes abortion for rape victims
Rebecca DiLeonardo on March 14, 2012 12:29 PM ET

[JURIST] The Supreme Court of Argentina [official website, in Spanish] ruled [judgment, in Spanish] on Tuesday that rape victims cannot be prosecuted for seeking abortions. The Supreme Court unanimously affirmed [BBC report] the lower court's ruling which allowed a 15-year-old girl to obtain an abortion after she was sexually assaulted by her stepfather. In its decision, the court adopted a broad interpretation of Section II, Article 86 of the Argentine Penal Code [text, in Spanish], which outlaws abortion except to save the life of the mother or where "the pregnancy [results] from a rape or indecent assault committed on a female idiot or insane." In the past, courts have interpreted the provision to require that the rape victim suffer from a mental disability in order to qualify for the Article 86 exception. The court determined, however, that a proper reading of the entire article supports the interpretations that all rape victims may legally seek abortions. The decision stated that future rape victims would not be required to seek judicial approval in order to obtain the procedure. The case, however, caused backlash among the Argentinian population due to the amount of time it took for the court to render a verdict.
Recently, activists have called for the reformation of laws involving reproductive rights in Argentina. In 2010 Human Rights Watch [advocacy website] published a report [text; press release] on the state of reproductive rights in Argentina. The report criticized, among other things, the lack of access to safe abortions, indicating that over 20 percent of obstetric deaths are attributable to unsafe abortions, making them the leading cause of maternal mortality in the country. Abortion is a controversial issue in Latin America. Abortion remains controversial in predominately Catholic Latin America. Last year the Supreme Court of Mexico upheld [JURIST report] a state right-to-life constitutional amendment that says life begins at conception. The amendment effectively bans abortions in Mexico's northern Baja California state. In 2008 Uruguayan President Tabare Vazquez vetoed [JURIST report] legislation that would have partially decriminalized abortion in the country. In countries such as Colombia [JURIST report] and Argentina [HRW report], criminal penalties may be decreased when the mother's life is at risk.


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Syria has systematically tortured detained citizens: AI
Max Slater on March 14, 2012 12:23 PM ET

[JURIST] Syrian authorities have systematically tortured citizens held in detention, Amnesty International (AI) [advocacy website] reported [text, PDF] Tuesday. The report, entitled, "'I wanted to die' Syria's torture survivors speak out," catalogs testimony from Syrian civilians who have allegedly survived torture, detention or other harsh treatment at the hands of Syrian authorities. In addition to chronicling claims of widespread torture perpetrated by Syrian authorities, AI makes policy recommendations for both the Syrian government and the international community. The report calls on Syria to end the systematic use of torture and to stop arbitrarily arresting and isolating people who peacefully protest against the government. The report also urges governments around the world to investigate and prosecute alleged crimes against humanity that Syrian authorities have committed.According to the many testimonies gathered and received by Amnesty International over the past year, people are almost invariably beaten and otherwise tortured and ill-treated during arrest, often during the subsequent transportation to detention centres, and routinely upon arrival at the detention centres and afterwards. Among the victims are children aged under 18. The torture and other ill-treatment appear intended to punish, to intimidate, to coerce "confessions" and perhaps to send a warning to others as to what they may expect should they also be arrested. In almost all cases the detainees are held in incommunicado detention, often for lengthy periods, with no access to visits from their families or lawyers in conditions which all too often amount to enforced disappearance. AI concludes from the aggregate of individual testimonies that Syrian officials' torture and ill treatment of detained citizens is purposeful and systematic.
Human rights groups have harshly criticized the Syrian government since crackdowns against protesters began last year. On Tuesday a UN expert on Syria declared that the human rights situation in Syria is worsening [JURIST report]. Earlier in March the UN Human Rights Council (UNHRC) [official website] passed a resolution [JURIST report] denouncing Syrian officials' crackdown on human rights. The resolution came on the heels of a demand for a cease-fire [JURIST report] by UN High Commissioner for Human Rights Navi Pillay [official website] in late February. Earlier in February, the UN-appointed Independent International Commission of Inquiry on Syria accused the government of violating international human rights law [JURIST report] after finding that Syrian forces are engaging in torture and killings under orders from high level government officials. Also in February, Pillay and UN Secretary-General Ban Ki-moon [official profile] called for an end to the violence in Syria, with Pillay asking the UN Security Council to refer the situation in Syria [JURIST reports] to the International Criminal Court (ICC).


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Brazil to bring first charges for crimes committed under dictatorship
Katherine Getty on March 14, 2012 11:37 AM ET

[JURIST] Brazilian prosecutors on Tuesday announced [press release, in Portuguese] plans to charge a retired colonel for his actions during a military dictatorship [investigation materials, PDF, in Portuguese] that ended more than 25 years ago. The colonel, Sebastiao Curio Rodrigues de Moura ("Curio") was considered to be a ruthless major who oversaw the Amazon section of the country after the military dictatorship came to power. He is being charged with the torture and killing of five guerrillas [Reuters report]. Many members of the military involved in the dictatorship have not been prosecuted due to an Amnesty Law [text, PDF, in Portuguese] that was enacted before democracy was restored to the country. While the law has not been repealed, Inter-American Court of Human Rights (IACHR) [official website] ruled in November 2010 that this amnesty law should not prevent the investigation and prosecution [JURIST report] of human rights violations that occurred during the dictatorship. In December 2010 the IACHR ruled the law was invalid because it was incompatible with the American Convention on Human Rights [text]. Human Rights Watch (HRW) [advocacy website] commended the prosecutors' move calling it a "landmark step for accountability" [press release]. The charges are expected to be filed later this week. JURIST Guest Columnist Caio Abramo also believes that the country has a duty to prosecute [JURIST op-ed] perpetrators of the crimes.
Brazilian President Dilma Rousseff [BBC profile] in November signed a law [JURIST report] establishing a truth commission to investigate human rights abuses perpetrated by the military from 1946 to 1988. In August 2011 Amnesty International (AI) [advocacy website] urged Brazil to repeal its amnesty law [JURIST report]. Other Latin American countries have recently taken steps to end amnesties for their military dictatorships. In March, AI urged government officials in El Salvador [JURIST report] to repeal [press release] a 1993 amnesty law that prevents any investigation [JURIST report] into killings committed during the country's 12-year civil war [PBS backgrounder], including the killing of respected Catholic Archbishop Oscar Romero [BBC backgrounder; JURIST news archive]. Last year, the Uruguayan Supreme Court struck down [JURIST report] the country’s Expiry Law, which granted amnesty to military officials accused of human rights violations during the country's 1973-1985 dictatorship. In 2005, Argentina's Supreme Court struck down similar amnesty laws [JURIST report] adopted in the 1980s to protect potential defendants, prompting the government to reopen hundreds of human rights cases.


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Congo militia leader found guilty in landmark first ICC verdict
Dan Taglioli on March 14, 2012 10:48 AM ET

[JURIST] The International Criminal Court (ICC) [official website] Wednesday issued its first verdict, a unanimous decision [judgment, PDF; press release] that Democratic Republic of Congo (DRC) militia leader Thomas Lubanga Dyilo [ICC materials] is guilty of the war crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities. The three-judge Trial Chamber I found that Prosecutor Luis Moreno-Ocampo [official profile] established beyond a reasonable doubt that Lubanga, former president of the Union of Congolese Patriots (UPC), coordinated and actively supported the enlistment of child soldiers into his Patriotic Force for the Liberation of the Congo (FPLC) militia, the military wing of the UPC believed to have committed large-scale human rights abuses in Congo's violent Ituri district. Lubanga and his co-perpetrators designed to build an army for the purpose of establishing and maintaining political and military control over Ituri, a plan which resulted in boys and girls under the age of 15 being conscripted and used to participate actively in hostilities in 2002 and 2003. The court determined that Lubanga's contribution was essential to the common plan, that Lubanga personally used children below the age of 15 as his bodyguards, sex slaves and fighters [BBC report] and that he regularly saw guards of other UPC/FPLC staff members who were below the age of 15. Lubanga requested a separate sentencing hearing under article 76(2) of the Rome Statute, and he is entitled to appeal his conviction within 30 days. He faces life imprisonment.
The Prosecutor v. Thomas Lubanga Dyilo [ICC information sheet] is a landmark case for the ICC. Not only is the trial verdict the first issued by the court since its inception 10 years ago, but Lubanga was the first suspect taken into its custody [JURIST report]. Furthermore, the case represents the first international trial focusing on the use of child soldiers. While other international criminal courts such as the International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] and International Criminal Tribunal for the former Yugoslavia (ICTY) [official website; JURIST news archive] have limited territorial jurisdiction over a set period and will be wound up upon completion of their mandates, the ICC is a permanent body and its decision in the case could for the first time set international legal precedent for others accused of similar crimes. Lubanga was taken into ICC custody [JURIST report] in March 2006, becoming the first DRC war crimes defendant to appear before the ICC. Lubanga was charged with enlisting child soldiers in his militia, and his trial began in January 2009 after being delayed for evidentiary reasons and was then halted soon afterward when one of the child witnesses recanted his testimony [JURIST reports] that Lubanga had recruited him for the militia. The prosecution concluded its case [JURIST report] in July 2009 after presenting 22 weeks of testimony. Lubanga has maintained his innocence [JURIST report] regarding the charges against him.


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China passes new secret detention law
Jennie Ryan on March 14, 2012 10:22 AM ET

[JURIST] China's National People's Congress (NPC) on Wednesday passed a law [draft amendment text, in Chinese] allowing police to detain certain suspects for up to six months in secret detention facilities commonly known as "black jails." The new law is an amendment to China's Criminal Procedure Law and allows for the arrest and secret detention [JURIST news archive] of those suspected of threatening the ruling Communist Party of China (CPC) [official website]. The law also includes a provision that requires officials to alert the relatives of a suspect who has been detained within 24 hours of such detention. The bill passed in the NPC with a vote of 2,639 delegates in favor of the legislation and only 160 delegates opposing [AFP report] the controversial measure. In a statement [text] released prior to the NPC vote, Human Rights Watch (HRW) [advocacy website] urged China not pass the new law because it is "a clear danger for government critics and human rights activists, and ... [places China in] clear contravention of [its] international obligations."
China's detention policies for those suspected of subversion have long been criticized, particularly in regard to the arrest and detention of political dissidents. In January Chinese authorities on sentenced prominent rights activist Li Tie [JURIST report] to 10 years in prison for subversion, marking the third such sentence in a month. Chinese Human Rights Defenders [advocacy website] rejected the decision and said that such harsh sentences would do nothing to prevent or curb the social unrest. Another activist, Chen Xi was sentenced to 10 years [JURIST report] in late December 2011 for publishing political essays online. In that same month a court sentenced Chen Wei to nine years in prison [JURIST report]. In early January dissident Zhu Yufu was charged with subversion for writing and publishing a poem on the Internet that urged people to act in support of freedom [BBC report]. Two longer sentences for subversion convictions belong to Nobel Laureate Liu Xiaobo [BBC profile; JURIST news archive], who has been serving an 11-year sentence [JURIST report] since 2009, and Liu Xianbin, who was jailed for 10 years in March 2011.


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Obama administration seeks new protections for cybersecurity, infrastructure information
Jerry Votava on March 14, 2012 7:46 AM ET

[JURIST] Obama administration official Melanie Ann Pustay [official profile] on Tuesday testified [prepared remarks] before the Senate Judiciary Committee [official website] to urge congressional officials to amend the Freedom of Information Act (FOIA) [text] to strengthen government's ability to prevent disclosure of information related to critical infrastructure and cybersecurity. Pustay's request comes just over a year after the US Supreme Court ruled 8-1 [JURIST report] in Milner v. Department of the Navy [opinion; Cornell LII backgrounder] that the government may not withhold certain information under FOIA, and her request seeks to "protect the vital interests that have been left exposed by the Supreme Court's Milner opinion". The Court ruled that under USC § 552(b)(2) (Exemption 2), which permits a government agency to keep secret only documents related solely to the internal personnel rules and practices of an agency, must be strictly construed to preclude the "High 2" expansion created by some circuits but rejected by others, which included information beyond personnel records such as infrastructure data and practices. In her remarks, Pustay said:For three decades, agencies had protected under "High 2" homeland-security and critical infrastructure information, law enforcement procedures, audit criteria, and other information that, if disclosed, would risk circumvention of the law. Although it limited the scope of Exemption 2 to matters related solely to internal personnel rules and practices, the Supreme Court was sympathetic to the policy concerns raised by the government concerning the need to protect information when its disclosure risked harm. ... The Court acknowledged that it might be necessary for the Government to "seek relief from Congress." Pustay is the Director of the Office of Information Policy of the US Department of Justice [official websites], the lead federal agency in the implementation of FOIA. Her remarks come during Sunshine Week [official website], a national initiative sponsored by news organizations and advocacy groups that supports open government and freedom of information.
Glen Scott Milner lived near Indian Island, a small island in the state of Washington that houses a naval magazine in which the Navy maintains non-nuclear explosives. In 2003 and 2004, Milner submitted two FOIA requests to the navy, seeking, among other things, explosive safety quantity distance (ESQD) information for the naval magazine. The Navy disclosed most of the documents that Milner requested but withheld the ESQD information on the grounds that it could threaten the naval magazine and surrounding community's safety and security. In its opinion in


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