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Legal news from Tuesday, September 11, 2012




West Virginia high court finds public campaign financing law unconstitutional
Jerry Votava on September 11, 2012 4:08 PM ET

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[JURIST] The Supreme Court of Appeals for West Virginia [official website] on Friday struck down [opinion] a new West Virginia law [WV Code §3-12-11(e) text] that provides public financing for candidates in state Supreme Court elections. The case was brought directly to the court by a writ of mandamus by Allen Loughry, a Republican candidate seeking to use the funds who has been an advocate for campaign finance reform in the past. The court referenced a 2011 US Supreme Court [official website] decision finding a similar campaign finance law from Arizona unconstitutional [JURIST report] on Free Speech grounds. Under both the Arizona and West Virginia laws a publicly financed candidate would receive governmental matching funds after certain thresholds are met for each dollar a private candidate spends. The West Virginia court held:
[P]rivately financed candidates are faced with a choice: spend their campaign funds over a set limit to get out their political message, thereby generating matching government funds for their publicly financed opponent or refrain from spending over a set amount to prevent the government from providing matching funds to their opponent. The US Supreme Court ... determined that "Arizona's matching funds scheme substantially burdens protected political speech without serving a compelling state interest and therefore violates the First Amendment."
The opinion was unanimous, but three of the five sitting justices recused themselves from the proceedings and were replaced by three judges sitting in temporary assignment. The law had been designed [West Virginia Record report], in part, to mitigate the influence of outside money in state elections.

Campaign finance laws have been a contentious issue recently. Last week the US Court of Appeals for the Eighth Circuit [official website], sitting en banc, ruled [JURIST report] that Minnesota's disclosure requirement law for political contributions is unconstitutional. In June the US Supreme Court struck down a Montana campaign finance law that restricted the amount of money corporations can spend on campaigns, holding that Citizens United [JURIST reports] invalidated the Montana law. That decision, American Tradition Partnership, Inc. v. Bullock [SCOTUSblog backgrounder] reversed a decision by the Montana Supreme Court upholding the law [JURIST report]. Also in June the US Court of Appeals for the Fourth Circuit cited Citizens United and ruled [JURIST report] that a district court erred in holding that corporations can contribute directly to political campaigns. In February the Supreme Court blocked enforcement [JURIST report] of the Montana Supreme Court ruling.




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IRS awards $104 million to Swiss bank tax whistleblower
Jerry Votava on September 11, 2012 3:31 PM ET

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[JURIST] An attorney for former UBS [corporate website] banker Bradley Birkenfeld announced on Tuesday that the US Internal Revenue Service (IRS) [official website] awarded Birkenfeld $104 million for information leading to an agreement between UBS and the IRS for $740 million in fines and penalties for its role in helping US clients shelter assets from US tax liability. This is reported to be the largest award [Reuters report] ever given by the IRS as part of their Whistleblower Informant Award [text] program. Birkenfeld is currently under house-arrest after being released last month from a 2009 sentence [JURIST report] for helping a client avoid paying over $7.2 million dollars in taxes in a related case.

Birkenfeld's information lead to significant actions in US efforts to put an end to tax-evasion through the use of overseas accounts. July 2010 the Swiss Federal Administrative Court [official website, in German] ruled that an agreement [text, PDF] with the US, allowing UBS to disclose client account information, is binding [JURIST report]. In November 2009, the DOJ and IRS announced that more than 14,700 Americans had reported to the IRS [JURIST report] previously hidden overseas bank accounts in response to a temporary forgiveness program [official website] allowing delinquent taxpayers to avoid criminal prosecution for tax evasion by paying all overdue taxes and penalties. In September of that year, the US and Switzerland signed a treaty [JURIST report] that would increase the amount of information shared between the two nations on would-be tax evaders. Earlier in 2009 the US reached a preliminary agreement with Switzerland over the identification of anonymous accounts [JURIST report] in Swiss banks, which would aid US officials in identifying those who seek to evade taxes.




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DRC rebels committing war crimes: HRW
Sung Un Kim on September 11, 2012 1:17 PM ET

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[JURIST] The M23 movement in the Democratic Republic of the Congo (DRC) [BBC backgrounder; JURIST news archive] has been responsible for numerous war crimes including summary executions, rapes and forced recruitment, Human Rights Watch (HRW) [advocacy website] reported [press release] Tuesday. HRW based its findings on interviews with 190 victims, family members, witnesses and others during the time period between May and September, revealing that the rebel group forcibly recruited at least 137 young men and boys while executing those who attempted to flee. It was found that 33 new recruits were executed, mostly in front of others, to deter additional attempts of flight. HRW also found that the Rwandan army deployed its troops to support the rebel group in its military operation and its attempt to recruit new members. Senior Africa researcher at HRW Anneke Van Woudenberg condemned M23's criminal activities in DRC and called for justice to be brought against the perpetrators as well as against Rwanda for aiding M23.

The unrest in the eastern part of the DRC has been a focus of the international community. In August the International Criminal Court (ICC) [official website; JURIST backgrounder] received requests [JURIST report] to investigate Rwandan President Paul Kagame for allegedly backing armed rebels in the DRC. The calls for an ICC investigation followed the release of a UN report in July detailing investigations since late 2011 that revealed substantial evidence [JURIST report] that the Rwandan government helped create the rebel groups and supplied them with weapons, armor and recruits, including children. In June Rwanda was urged to stop [JURIST report] assisting accused DRC war criminal General Bosco Ntaganda [case materials], who is wanted by the ICC. During the same month, UN High Commissioner for Human Rights Navi Pillay [official profile] expressed concern [JURIST report] about the safety of the civilians in the region. In May former ICC prosecutor Luis Moreno-Ocampo sought [JURIST report] the immediate arrest of Ntaganda along with Sylvestre Mudacumura [ICC fact sheet, PDF], a foreign militia leader in the DRC.




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Egypt charges former PM with corruption
Sung Un Kim on September 11, 2012 12:51 PM ET

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[JURIST] Former Egyptian prime minister Ahmed Shafiq was referred for trial Tuesday on corruption charges, according to the country's authorities. Egypt's last prime minister under the 30-year regime of ousted president Hosni Mubarak [BBC profile; JURIST news archive], Shafiq stands accused of misusing public funds [AP report] while in office as minister of civil aviation. The charges against him derived from his time as the chairman of a housing association when he sold parcels of land to Mubarak's sons, Gamal and Alaa, for substantially less than their value. The two sons are also facing separate trials [JURIST report] for insider trading. Shafiq argued that the charges against him are politically motivated. He was named prime minister during the last part of Mubarak's regime but was fired after Mubarak's resignation.

Shafiq is one of the many former politicians under Mubarak's regime who are facing corruption charges. Last week former culture minister Farouq Hosni was accused of illegally obtaining 27 million Egyptian pounds (USD $4.5 million) during his term as culture minister. In August the former secretary for Mubarak's political party, Safwat El-Sherif, was referred to a criminal court [JURIST report] on corruption charges. He was accused of having abused his office by obtaining real estate at discounted prices and illegally obtaining $49.2 million. In July an Egyptian court rejected pleas to release [JURIST report] Mubarak's two sons while they await trial. Their lawyer argued that his clients are detained unlawfully because they were arrested for a misdemeanor and not for a felony which would allow authorities to detain an individual only up to six months, a term that the Mubaraks already served. Gamal and Alaa Mubarak, along with seven others, were charged [JURIST report] with stock market fraud and using unfair trading practices and illegally manipulating the market. Hosni Mubarak was sentenced to life [JURIST report] after an Egyptian court found him guilty of complicity to kill protesters during the Arab Spring protests [JURIST news archive]. During the protests that resulted in the overturning of Mubarak's 30-year regime, Mubarak ordered government officials to use gunfire and other violent measures to subdue protesters, causing more than 850 deaths [JURIST report]. Mubarak's trial ended in February with the chief prosecutor asking the court in his closing remarks to issue a death sentence [JURIST reports] against the former ruler.




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Guantanamo detainee dies after being found unconscious in cell
Sarah Posner on September 11, 2012 11:17 AM ET

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[JURIST] Yemeni Guantanamo Bay [JURIST backgrounder] detainee Adnan Farhan Abdul Latif [NYT profile] died [press release] over the weekend at a hospital on the US Navy base after guards found him unconscious in his cell Saturday. Latif's identification was originally being withheld [press release] until the US military could notify his family and his home country's government. The guards who found Latif unconscious in his cell at the US detention facility performed first aid and brought him to a hospital on the US Navy base to perform extensive life saving measures. These measures were unsuccessful, and doctors at the hospital pronounced Latif dead. This marks the ninth detainee to have died while in custody at Guantanamo.

Latif was on a hunger strike [JURIST news archive] earlier this year. He was originally ordered to be released in 2010, but that order was overturned [JURIST reports] by the US Court of Appeals for the District of Columbia Circuit [official website] in October. Latif, who had been in custody for over 10 years, contended that he was in Pakistan for medical treatment when he was arrested and turned over to US forces.




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Mexico president-elect proposes reforms to increase access to government
Sarah Posner on September 11, 2012 10:25 AM ET

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[JURIST] President-elect of Mexico Enrique Pena Nieto [campaign website, in Spanish] announced Monday that he is proposing constitutional reforms that will increase government transparency. The proposed reforms [AP report] will mark the first legislation that Mexico's new president has announced since winning the election. The Institutional Revolutionary Party [party website, in Spanish], Pena Nieto's party, will now return to power after 12 years. In an attempt to crack down on corruption, Nieto also plans to propose a national anti-corruption commission in the next few weeks.

Pena Nieto's electoral victory was confirmed [JURIST report] in July, and subsequent legal challenges to his victory proved unsuccessful. Last month, Mexico's Electoral Tribunal upheld [JURIST report] the results after finding that there was no evidence that Pena Nieto violated election regulations. Pena Nieto faced legal challenges [JURIST report] brought by his opponent Andres Manuel Lopez Obrador of the left wing Democratic Revolution Party. He claimed to have evidence showing that Pena Nieto bought votes by distributing 1.8 million gift cards that amounted to billions of pesos.




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Alabama asks federal appeals to reconsider immigration law
Sarah Paulsworth on September 11, 2012 10:02 AM ET

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[JURIST] Alabama state officials petitioned [press release] the US Court of Appeals for the Eleventh Circuit [official website] on Monday to reconsider a ruling partially striking down [JURIST report] the state's immigration law [HB 56, PDF]. In August a three-judge upheld [opinion, PDF] several provisions, including one allowing police officers to check the immigration status of persons suspected of a crime, but rejected provisions making it a crime for undocumented immigrants to work or solicit work, imposing criminal penalties on persons who rent property to illegal immigrants and requiring state officials to check the immigration status of children in public schools. Alabama Governor Robert Bentley said:
We are filing this based on principle. As the Governor of Alabama, I have a duty to uphold and defend Alabama law. Federal courts should not restrain state governments in a way that is contrary to the US Constitution. We must protect the State of Alabama from the federal government interfering with our ability to enforce our laws. We owe it to the people of this state to defend the U.S. Constitution and the right of our legislature to make constitutional policy choices.
A representative from the Southern Poverty Law Center expressed disappointment [CNN report] that the state was continuing to pursue the law but said she was confident that the court's August decision would withstand additional scrutiny.

Earlier this month a judge for the US District Court for the District of Arizona [official website] upheld [JURIST report] a controversial provision of Arizona's immigration law [SB 1070, PDF] that requires law enforcement officials to check the immigration status of persons they stop or arrest if there is a reasonable suspicion that the person is in the US illegally. In August the US Court of Appeals for the Third Circuit [official website] again heard arguments [JURIST report] on two anti-illegal immigrant laws enacted in 2006 by the city of Hazleton, Pennsylvania, which deny permits to businesses that employ illegal immigrants and fine landlords who extend housing to them. In July a judge for the US District Court for the District of South Carolina [official website] declined to lift an injunction [JURIST report] against South Carolina's controversial immigration law [SB 20 materials], despite the recent Supreme Court ruling in Arizona v. United States [JURIST report]. Last May the ACLU and the National Immigration Law Center filed a class action lawsuit challenging Utah's immigration law, the same month that the ACLU filed a class action [JURIST reports] in the US District Court for the Southern District of Indiana [official website] challenging that state's immigration law.




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Federal appeals court upholds Illinois campaign donor disclosure law
Sarah Paulsworth on September 11, 2012 9:11 AM ET

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[JURIST] The US Court of Appeals for the Circuit [official website] on Monday upheld [opinion, PDF] an Illinois state law that requires all organizations to disclose their funding sources, including groups that do not focus on elections. In a 2-1 ruling, the Seventh Circuit rejected arguments [Reuters report] by the Center for Individual Freedom (CIF) [advocacy website] that the law stifles freedom of speech. The CIF challenged the law after choosing not to advertise during the 2010 election cycle in order to protect donors who wished to remain anonymous. In upholding the law, the appeals court concluded, "[c]ampaign finance disclosure laws must strike a balance between protecting individual speakers from invasions of privacy and harassment on the one hand, and enabling transparency and accountability in political campaigns on the other. Illinois's laws do so sufficiently to survive this facial challenge." It is unclear whether the CIF plans to appeal.

In March a judge for the US District Court for the Northern District of Illinois [official website] struck down [JURIST report] 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. 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.




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Quebec judge allows province to keep gun registry despite federal law
Julia Zebley on September 11, 2012 8:00 AM ET

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[JURIST] A judge for the Superior Court of Quebec [official profile] ruled [judgment, PDF, in French] Monday that the Canadian federal government cannot end the Quebec long-gun registry. The decision invalidated two parts of the Ending the Long-gun Registry Act [materials] and ordered the federal government to release any records on Quebec gun owners to the Quebec government to supplement their standing registry. This also includes records on guns that potentially have been used in crimes committed in Quebec or originated in Quebec and have been sold to other parties. The sections invalidated halted the destruction of Quebec's records and enjoined the end of a requirement to register any long-guns in Quebec. The ruling does not apply to other provinces. The federal government plans to appeal [WP report].

Before the Ending the Long-gun Registry Act was passed in April, the Canadian Firearms registry required the registration and subsequent title transfers of any restricted firearms in Canada. This included rifles and shotguns, which many argued were discriminatory against hunters. In February the Ontario Superior Court [official website] refused to impose a mandatory minimum sentence [JURIST report] established by the Canadian federal government for firearm possession, declaring the guideline unconstitutional.




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US transfers control of Bagram prison to Afghanistan, retains some prisoners
Julia Zebley on September 11, 2012 7:12 AM ET

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[JURIST] The US handed control of the Parwan prison at Bagram Air Base [official website; JURIST news archive] over to Afghanistan officials Monday, although the US retains control of 600 prisoners. These prisoners include Afghani detainees that the US fears will not be handled appropriately, as well as 50 Pakistani detainees [VOA report]. Approximately 3182 prisoners were formally put in the control of Afghani police, fulfilling the March Enduring Strategic Partnership Agreement [text, PDF]. Future Afghani national prisoners will not be placed under US control. However, both sides have expressed concerns [AFP report] on the other's acceptance of terms. US officials have stated they will continue to hold the 600 prisoners until they are assured that the Afghani government will follow the shared Memorandum of Understanding (MoU). Both sides have regarded the dispute as a small impediment to the overall goal of the prison's complete transfer. The decision for the US to retain control over some detainees was announced in September [JURIST report].

In July it was reported that the US would retain control of about 50 non-Afghan detainees [JURIST report] at Parwan Detention Center at Bagram. At that time the US again had to defend its position by asserting that its agreement with Afghanistan did not cover foreign nationals. The detainees have allegedly been held without access to legal assistance, prompting some human rights activists to question the deal's legitimacy and expand upon the criticism that the Bagram facility has been "the other Guantanamo" since its opening [JURIST report] in 2009. The plan for Afghanistan [JURIST report] to take over the US military's Parwan Detention Center was crafted in January with a goal of transferring all responsibilities to the Afghan government within six months.




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