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News Clips – October 25, 2010

October 25, 2010 Leave a comment
  • The Inter-American Commission on Human Rights begins holding hearings today in its 140th Period of Sessions.  Issues to be discussed today include the Situation of Environmentalists in Mesoamerica, and Discrimination against the Transsexual, Transgender, and Transvestite Population in Brazil.  See the week’s schedule of hearings here.  Webcast of some hearings is available here.
  • The IACHR has called on the United States to suspend the execution of Jeffrey Timothy Landrigan, following its grant of precautionary measures in Landrigan’s favor last week.  The Commission subsequently held that the U.S. violated the rights of Landrigan, who is scheduled to be executed tomorrow, when he was sentenced to death by a trial judge rather than a jury using a procedure later found to be unconstitutional, but was never granted a new sentencing hearing.  The Commission requested the immediate suspension of his execution. [IACHR] Amnesty International USA questioned Landrigan’s defense counsel’s failure to present mitigating evidence of his neuropsychological health and raised concerns that the state of Arizona may have obtained the drug used for lethal injections, sodium thiopental, from a non-FDA-approved source. [AI USA]  Landrigan’s application for stay of execution and habeas petition  – on the grounds of possible actual innocence – are pending before the Ninth Circuit Court of Appeals.
  • The European Court of Human Rights has found Russia in violation of the European Convention on Human Rights for arbitrarily and discriminatorily denying authorization for gay rights marches in Moscow, in its judgment in Alekseyev v. Russia.
  • Canadian Omar Khadr has pleaded guilty to war crimes charges before a Military Commission in Guantánamo, as part of an agreement which will likely limit his prison sentence and provide for his return to Canada, while avoiding the controversy of trying Khadr for crimes he allegedly committed as a juvenile. [AI] Amnesty International urges the U.S. government to comply with its obligations to investigate Khadr’s allegations of torture and abuse while in custody.
  • Another mass killing in Ciudad Juárez has claimed the lives of 14 individuals at a teenage boy’s birthday party, following the UN Special Rapporteur on the Independence of Judges and Lawyers’ visit to Mexico and her call for a reformed, independent judiciary capable of handling the increased incidence of violent crime, ensuring access to both defendants and victims, and prosecuting human rights offenders in the ordinary – rather than military – courts. [NYT]
  • Human Rights Watch calls on Turkey to investigate the arbitrary detention and beating of five transgender activists in Ankara by police officers in May 2010, as well as drop the charges against the activists. [HRW]
  • The ICC Trial Chamber III has rejected former DRC vice president Jean Pierre Bemba Gombo’s double jeopardy claim, making way for his trial to begin on war crimes and crimes against humanity charges related to the Movement for the Liberation of Congo’s activities in the Central African Republic in 2002 and 2003. [RNW]  The situation in the CAR was referred to the ICC prosecutor in 2005 and the warrant for Bemba’s arrest was issued in 2008.
  • Cholera continues to take lives in Haiti, as fears grow of the disease spreading to camps for earthquake survivors. [Washington Post]
  • The Associated Press reports that “[a] group of Israeli reservists critical of the military’s treatment of Palestinians has released new photos that appear to show Israeli soldiers abusing Palestinians” [Washington Post] Meanwhile, Human Rights Watch has called attention to torture allegations in Palestinian detention in the West Bank. [HRW]
  • Vietnam has attracted criticism for recent, continued arrests of Vietnamese political bloggers and critics. [HRW]
  • The United Arab Emirates Federal Supreme Court has ruled that husbands have a right – under the penal code – to “chastise” their wives and children using violence and coercion, provided they leave no physical marks. [HRW]
  • Last week, the Burundi government denied that police arbitrarily executed 22 rebels, accusing the president of the Association for Protection of Detainees and Human Rights of making false accusations and insisting that the rebels were killed in combat. [RNW]
  • Strikes and fuel shortages persist in France as workers protest President Sarkozy’s decision to raise the retirement age from 60 to 62 to balance the social security budget. [Washington Post]
  • Serbia is urged to prosecute two war crimes suspects, Goran Hadzic and Ratko Mladic, as the European Commission considers Serbia’s application to join the EU. [HRW]
  • Jailed Iranian human rights defender Nasrine Sotoudeh enters her eighth week of detention in solitary confinement, where she is reported to be on a hunger strike. [LA Times Blog]
  • Cuban journalist and political prisoner, Guillermo Fariñas, has been awarded the Sakharov Prize given by the European Parliament to recognize those who “combat intolerance, fanaticism and oppression”.  Fariñas has been leading a hunger strike in prison to advocate for the release of prisoners in poor health who want to stay in Cuba. [RNW]
  • Following a YouTube video depicting the torture of two Papuan men by Indonesian officials, Amnesty International is calling for an investigation of torture allegations against Indonesian security forces in Papua province over the past two years. [AI]
  • A Virginia man has pleaded guilty in federal district court to attempted material support of terrorism and communicating threats, in connection with his online threats to South Park creators and advocacy of Somali Al-Qaeda affiliate, Al-Shabaab. [Washington Post]
  • The Iraqi Supreme Court has ordered Parliament to meet within two weeks, finding the suspension of the current legislative session – due to legislators’ failure to reach consensus on the formation of the next government – unlawful. [Washington Post]
  • A New York Times article reports on the crumbling state of public housing in the United States, as budget constraints force residents to wait years for necessary repairs. [NYT]
  • The Ninth Circuit Court of Appeals has temporarily stayed enforcement of the District Court’s injunction against the Don’t Ask, Don’t Tell policy regarding sexual orientation in the U.S. armed forces, in order to consider the federal government’s appeal in Log Cabin Republicans v. USA.
  • Twice this month, Iranian authorities have used amputation as punishment by cutting off the hand of two Iranians convicted of theft, raising concerns that the practice is regaining favor. [Huffington Post]
  • Thousands protested in Argentina following the death of labor activist Mariano Ferreyra last week during demonstrations for better pay and benefits for railway workers. [Impunity Watch]
  • The Telegraph reports, “The US is withholding assistance to Pakistani military units accused of human rights abuses, according to American officials, sparking outrage in a country where CIA drones are blamed for killing hundreds of civilians”. [Telegraph]
  • 1.3 million votes have been cancelled in Afghanistan’s recent election, following findings of fraud and irregularities. [BBC]  Meanwhile, President Hamid Karzai is taking heat for accepting funding from Iran. [BBC]
  • The African Union has reported that the Central African Republic, along with the DRC, Sudan and Uganda, are working together to defeat the Lord’s Resistance Army, in part by creating a joint brigade and classifying the LRA as a terrorist organization. [RNW]
  • A New York Times editorial questions U.S. government treatment of material witnesses in terrorism cases, following the Supreme Court’s decision to hearAshcroft v. al-Kidd, a suit by an American citizen held in detention and subjected to strict probation-like restrictions for fifteen months, as a material witness. [SCOTUSblog]  Former Attorney General John Ashcroft appealed the Ninth Circuit’s decision holding he was not entitled to absolute immunity against the suit.
  • The UN Special Rapporteur on Torture warned last week that Greek detention facilities are dangerously overcrowded as they continue to receive irregular migrants seeking to enter Europe from Turkey, and called on the EU to address the migrant detention issue. [OHCHR]
  • Last week, Tibetan students marched in protest of reported government plans to institute a Chinese-only language policy in classrooms. [Impunity Watch]
  • The European Commissioner for Human Rights calls attention to the plight of institutionalized persons with disabilities in his latest comment.
  • A U.S. federal district court judge in Kansas has ruled that Human Rights Watch and a researcher must disclose their notes and sources in the trial of a Rwandan charged with illegally obtaining U.S. citizenship by lying about his participation in the Rwandan genocide. [AP]
  • Mark Lyttle, a mentally disabled U.S. citizen of Puerto Rican descent who was wrongly deported to Mexico is suing the U.S. government after Lyttle, who apparently has a history of mental illness and speaks no Spanish, was deported without court-appointed counsel or an opportunity to present evidence of his citizenship. [Impunity Watch]
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News Clips – October 3, 2010

October 3, 2010 Leave a comment
  • In Ecuador, a state of emergency remains in place following last week’s uprising of members of the military against President Correa’s government, prompting human rights defenders to call for a quick restoration of full civil liberties. [CEJIL] The Inter-American Commission on Human Rights condemned the attack against Correa. [IACHR]
  • Germany today commemorates 20 years of reunification and will use its experience to assist the South Korean government in moving forward with unification of the Korean Peninsula. [New York Times; VOA]
  • The UN fact-finding mission into the Gaza flotilla incident has issued its report, concluding that Israel used “unlawful” and “unnecessary” violence in its interception of a flotilla of ships carrying humanitarian aid in May and June of this year.  The report was adopted by the Human Rights Council. [UN; OHCHR]
  • The U.S. government has apologized for conducting medical experiments on Guatemalan prisoners, sex workers, psychiatric hospital patients, and soldiers from 1946 to 1948.  The tests purposefully infected approximately 1,500 Guatemalans with syphilis and other sexually transmitted diseases between 1946 and 1948.  U.S. Secretary of State Hillary Clinton expressed outrage and regret, while Guatemalan President Alvaro Colom qualified the experiments as a “crime against humanity” and reserved the right to pursue legal redress. [CERIGUA; Reuters]
  • In Venezuela, a riot in the Tocoron prison, which is allegedly run by gang members, has claimed 16 lives. [Impunity Watch]  The Inter-American Commission on Human Rights has previously expressed concern regarding the overcrowding and conditions in Venezuelan prisons, and last week expressed its concern at the discovery of a child prostitution ring operating out of a Paraguayan prison. [IACHR]
  • Uganda has charged detained Kenyan human rights defender Al-Amin Kimathi with terrorism and murder due to his role in representing the six Kenyans being prosecuted for the Kampala World Cup bombing. [HRW]
  • Cuba may release more political prisoners if they agree to leave the country. [AP]
  • Seven years after Liberia’s civil war, Prince Johnson, a current Liberian senator and former warlord who participated in atrocities committed during the war, has been certified to run for the presidency in next year’s election.  The Truth and Reconciliation Commission of Liberia’s final report recommended that Johnson be banned from holding public office for 30 years and be prosecuted for crimes against humanity (p. 353). [AP]  The Special Court for Sierra Leone is managing the prosecution of former Liberian President Charles Taylor, in The Hague, for atrocities committed by Liberian and rebel forces under his direction in neighboring Sierra Leone, but the International Criminal Court has not opened an investigation into the crimes committed in Liberia during its civil war.
  • The UN Human Rights Council has confirmed that the right to water and sanitation is binding on States, as embodied in international treaties  [UN]
  • The U.S. Supreme Court begins a new term tomorrow with Justice Elena Kagan becoming the third woman on the court.  As quoted in the Washington Post, Justice Ruth Bader Ginsburg stated, “When the schoolchildren file in and out of the court and they look up and they see three women, then that will seem natural and proper – just how it is.” Critics note that the the ideological divide among the 9 justices may be seen as partisan, in that each Supreme Court justice viewed as conservative was nominated by a Republican president and each justice viewed as liberal in his or her judicial philosophy was appointed by a Democratic president, which had not previously been true.  [Washington Post]  The Court’s docket this term will include cases related to immigration law, freedom of expression, criminal due process and other issues. [SCOTUSblog]  For an interesting commentary on the Roberts Court’s impact on American constitutional law thus far, see Barry Friedman and Dahlia Lithwick’s article on Slate.
  • The UN Office of the High Commissioner for Human Rights has issued a report calling on Nepal to establish an independent body to receive and investigate citizen complaints, following its discovery that security forces are suspected of having committed dozens of extrajudicial killings since January of 2008. [UN]
  • As a series of teen suicides in the United States are attributed to school bullying on the basis of perceived sexual orientation, activist Dan Savage has initiated the It Gets Better Project on YouTube to offer messages of hope to LGBT teens. [ACLU]
  • The trial of former Guantanamo detainee Ahmed Khalfan Ghailani for his alleged participation in the U.S. embassy bombings in Tanzania and Kenya in 1998 is set to begin tomorrow in federal court in New York City, drawing further criticism of the continued use of military commissions and detention abroad of terrorism suspects. [ACLU; HRW]
  • Indigenous Chilean prisoners have ended their hunger strike in protest of the terrorism charges levied against them in connection with their anti-poverty protests.  The end of the hunger strike was welcomed by the UN, but Human Rights Watch called on the Chilean government to amend its anti-terrorism laws and limit use of the military court system. [ UN; HRW]
  • Human Rights First urged the UNHCR to continue working to ensure equality and dignity in the treatment of LGBTI refugees, as governments and civil society met in Geneva to discuss the issue. [HRF]
  • The CIA has begun using armed drones in Afghanistan and Pakistan, in an expansion of the highly controversial use of targeted killings. [Washington Post]
  • Bahrain has issued a travel ban against several human rights defenders, preventing them from leaving the country. [HRW]
  • Mexican mayors’ lives are at risk in the country’s ongoing battle against drug trafficking. [Washington Post]
  • Britain has legally recognized  Druidry, an ancient faith whose followers worship the natural world, as a religion by approving the Druid Network’s application to be registered as a religious charity.  [Huffington Post]
  • Liu Xiabobo, a likely contender for the Nobel Peace Prize and Chinese dissident, is serving an 11-year prison sentence for subversion in connection with the publication of Charter 08, a proposal for peaceful democratic reform. [Washington Post]
  • One year after a massacre perpetrated by Guinea security forces claimed the lives of more than 150 people, the government has yet to prosecute the suspects, despite the ICC’s opening a preliminary examination. [HRW]
  • Cambodian opposition leader Sam Rainsy has been convicted of spreading disinformation and falsifying maps, as the UN Special Rapporteur on Cambodia criticizes “disproportionate use of the law” against the press, activists and political leaders. [OHCHR; VOA]
  • The Thai government continues to invoke emergency powers to limit civil liberties, five months after anti-government protests were suppressed. [HRW]
  • Human Rights Watch calls for an investigation into a recent rash of police brutality and deaths in custody in Vietnam. [HRW]
  • In Zimbabwe, violence and arrests of activists have led to the disruption and suspension of community outreach meetings on Zimbabwean constitutional reform. [HRW]
  • The Global Migration Group, comprised of various intergovernmental organizations including the International Organization for Migration, urges States to ensure the fundamental rights of migrants in irregular situations. [OHCHR]
  • The Al-Jazeera network protested the arrest of two cameramen by NATO forces in Afghanistan. [Washington Post]  The cameramen were released two days later. [Al-Jazeera]
  • Following reports that Burmese democracy activist Aung San Suu Kyi was to be allowed to vote in upcoming elections and be freed from house arrest, it remains unclear what action the military government will take. [The Hindu; AP]

U.S. Court Rules Corporations Cannot be Held Civilly Liable for Torture and Other Violations of International Law under ATCA

September 20, 2010 Leave a comment

Last Friday’s Second Circuit ruling in Kiobel v. Royal Dutch Petroleum, if upheld, could be the death knell for litigation seeking to hold corporations accountable for torture and other violations of customary international law under the Alien Tort Claims Act.

The plaintiffs, Nigerian nationals, brought suit against Royal Dutch and Shell Petroleum for aiding and abetting the Nigerian government in extrajudicial executions, torture, arbitrary arrest, and other acts of suppression against those protesting the environmental effects of oil exploration.

In affirming dismissal of the suit, the Second Circuit held that corporations cannot be held liable under the ATCA (or ATS) because customary international law only confers jurisdiction over natural persons. [WSJ]  As in the recent Ninth Circuit ruling in Bowoto v. Chevron, which held that the Nigerian plaintiffs could not recover under the ATCA (because a different federal statute preempted their claims) or the Torture Victims Protection Act against Chevron for the wrongful deaths of protesters, the Second Circuit’s decision ends the plaintiffs’ possibilities for relief.

In Kiobel, the Second Circuit seems to have turned on their head historic justifications for individual criminal (as opposed to State) liability for grave violations of international law.  The majority cites the Nuremberg tribunal as stating: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”, in order to support the majority’s dismissal of the suit based on its finding that international law “has never extended the scope of liability to a corporation”.

However, as the dissenting judge in Kiobel argues, “on many occasions [U.S.] courts have ruled in cases involving corporate defendants [in ATCA suits] in a manner that assumed without discussion that corporations could be liable”.

Read more on the ATCA on this blog (here and here), from the Center for Justice & Accountability, on the Center for Constitutional Rights’ ATCA Q&A sheet, and on Amnesty International USA’s website.

News Clips – September 20, 2010

September 20, 2010 Leave a comment
  • In a heartbreaking blow to Afghan hopes for peace, several U.S. soldiers are under investigation for murdering at least three Afghan civilians last year as part of a rogue “kill team” that was allegedly formed when a staff sergeant who had served in Iraq in 2004 joined the platoon stationed in Kandahar province. [Washington Post]
  • The French Senate has approved a ban on the use of full-face veils in public, subject to a fine of 150 Euros ; the legislation will now be reviewed by the Constitutional Council [Impunity Watch; BBC]
  • On Thursday, the U.S. state of Virginia will execute Teresa Lewis, following her conviction for the 2002 deaths of her husband and stepson; she will be the first woman to be executed in the state in 98 years and is reported to have “severe learning difficulties”. [Guardian]
  • Polish police have detained exiled Chechen leader Akhmed Zakayev, who was granted asylum in the United Kingdom in 2003, but Polish authorities have not determined whether he will be extradited to Russia, where he is sought on charges of armed revellion, murder and kidnapping. [BBC; RNW]
  • Italy and Libya’s joint agreement to intercept would-be migrants at sea has led to several incidents where Libyan patrols have fired upon Italian boats in the mistaken belief that they were carrying migrants. [Impunity Watch; Human Rights Watch]
  • Ecuador and Colombia have met to discuss the plight of the approximately 135,000 displaced Colombians living in Ecuador, due to ongoing violence [Impunity Watch; ADN]
  • Leading Russian gay rights activist, Nikolai Alekseyev, has been released after being held by Russian authorities for two days while they allegedly pressured him to withdraw a complaint before the European Court of Human Rights. [Radio Free Europe]
  • A U.S. citizen has been released from Iranian custody after inadvertently crossing Iranian border from Iraq while hiking; meanwhile, while Amnesty calls attention to 30,000 held in Iran without trial and prominent Iranian human rights activist Shiva Nazar Ahari has been sentenced to six years’ imprisonment. [Guardian; NYT; Amnesty]
  • The Philippine National Police will support the installation of a human rights desk in every police station, following torture accusations levied against the police. [Manila Bulletin]
  • In Kyrgyzstan, human rights reporter Azimjon Askarov has been sentenced to life imprisonment on charges the Committee to Protect Journalists says are completely unfounded. [CPJ]
  • Peruvian President Alan Garcia approved a repeal of recent Legislative Decree 1097, amidst fears that the law would provide amnesty for security forces members accused of human rights violations. [Peruvian Times]  The repeal was viewed favorably by the IACHR, which had criticized the decree. [IACHR]
  • Citing “the lack of the right to legitimate defence in Rwanda today”, a French court has rejected Rwanda’s request to extradite Eugene Rwamucyo, a doctor wanted for his alleged involvement in the Rwandan genocide. [RNW]
  • Hamas and UN Relief & Works Agency clash over human rights curriculum in schools. [NPR]
  • The Observatory for the Protection of Human Rights Defenders has released its annual report, Steadfast in Protest, provides a region-by-region analysis of government  protection (or repression) of the media and civil society (note that the Table of Contents is at the end of the 500-plus page report).  The report is choc-full of individual examples of human rights defenders who were subjected to harassment or prosecution, and instances of dissent which were stifled – particularly during elections – in 2009. [FIDH]
  • Human Rights Watch calls for the establishment of an international Commission of Inquiry for Burma, to investigate past abuses by the military and armed groups.  [HRW]
  • The U.S. Senate is poised to vote on legislation, which has been approved by the House of Representatives, and which would repeal the military’s “Don’t Ask, Don’t Tell” policy towards gay and lesbian members of the military. [ACLU]
  • Kashmiri separatists protest curfew laws and Indian occupation in bloody battles with Indian troops, in which at least three protesters have lost their lives, while Human Rights Watch calls for the repeal of the Armed Forces Special Powers Act, which protects members of the Indian military from prosecution and grants broad powers to use force and conduct warrantless arrests. [BBC; HRW]
  • UN Special Rapporteur on the right to adequate housing warns of the high rate of forced evictions in Kazakhstan. [OHCHR]
  • The IACHR has presented a case to the Inter-American Court involving Chilean courts’ denial of parental custody rights to a lesbian mother because of her sexual orientation.  Karen Atala’s petition is the first to be decided by the Commission relating to discrimination on the basis of sexual orientation. [IACHR]
  • UN expert calls on Sudanese authorities to investigate the September 2nd killing of dozens of civilians in North Darfur. [OHCHR]
  • A Reprieve investigator reports that the FBI has been deeply involved in the questioning and detention of individuals connected to the World Cup bombings in Kampala this year, the investigation of which has included the arbitrary detention of two Kenyan human rights defenders arrested in Uganda last week.  They had been working on behalf of three Kenyans subjected to extraordinary rendition and charged in Uganda for their alleged role in the Kampala World Cup bombings. [Huffington Post]
  • Organizations call for the immediate release of 19-year-old blogger being held incommunicado in Syria for nine months now.  [AFP; HRW]
  • Attacks against journalists threaten lives and freedom of expression in Mexico. [Impunity Watch]
  • The Costa Rican Supreme Court has ruled that the high crime rate in the country cannot justify arbitrary police checkpoints on public roads, which may be established only when there is substantiated evidence or actual notice of a crime having been committed. [CEJIL]
  • 18 protesters were injured, and one killed, in a confrontation between Peruvian police and protesters opposed to a dam and agricultural irrigation system which residents of Espinar fear would leave them without water. [Reuters; AlertNet]
  • In Thailand, planning for anti-government protests is underway as the fourth anniversary of the military coup approaches. [Democracy Now]

Ninth Circuit Dismisses Rendition Lawsuit against Boeing Subsidiary, Granting Government’s Invocation of State Secrets Privilege

September 11, 2010 Leave a comment

On September 8, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit dismissed a civil suit filed under the Alien Tort Claims Act by five extraordinary rendition victims against a Boeing subsidiary, Jeppesen DataPlan, Inc. for its role in their rendition.  [Amnesty International USA ; ACLU]  The federal government intervened in the suit, arguing that any divulgence of information relating to Jeppesen’s work for the CIA would make public privileged information.  The district court granted the government’s motion to dismiss.  On appeal, a three-judge panel of the Ninth Circuit Court of Appeals reversed and remanded.  An eleven-judge panel of the Ninth Circuit took up the case en banc, the majority then “reluctantly” concluding that the state secrets privilege applied and, on the facts of the case, required dismissal.

The five plaintiffs are non-U.S. citizens who were detained in Sweden, Pakistan, Gambia and Jordan before being rendered to Egypt, Morocco, and Afghanistan, where they allegedly suffered torture and inhumane conditions of detention.  Several allege that they were sentenced to lengthy prison terms after giving false confessions under severe torture. Two of the plaintiffs, Binyam Mohamed and Bisher al-Rawi, were eventually transferred to Guantanamo, where they spent years in detention.

Unlike the district court, the circuit court relied on the privilege established in Reynolds (state secrets evidentiary privilege) rather than on the Totten bar (barring adjudication where the very subject of the litigation is a state secret).  The state secrets privilege is intended to protect information when “strictly necessary to prevent injury to national security”. See, e.g., Mohamed v. Jeppesen Dataplan, Case 08-15693, Slip Op. at 13538 (9th Cir. Sept. 8, 2010), quoting Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983).  The effect of a sustained claim of the state secrets privilege is the excision of the protected evidence from the litigation.  In Mohamed, the Ninth Circuit held that dismissal was required because the privileged evidence could not be separated from nonprivileged information, creating an “unacceptable risk of disclosing state secrets” were the case to continue. Id. at 13540 et seq.  In spite of the hundreds of pages of nonprivileged documents offered into evidence by the plaintiffs (listed in the dissent’s appendix), the majority concluded that Jeppesen’s response to such evidence would require disclosure of privileged information. Id. at 13551-52.  The majority also took note – on two occasions – that the Obama administration had revised the federal standards for invocation of the state secrets privilege and certified to the court its compliance with those standards in this case. Id. at 13528-29, 13552-53.  [See Michael Isikoff’s critical Newsweek article on that issue here].

With regard to the plaintiffs’ possibilities for relief, the majority wrote:

Our holding today is not intended to foreclose — or to prejudge — possible nonjudicial relief, should it be warranted for any of the plaintiffs. […].

First, that the judicial branch may have deferred to the executive branch’s claim of privilege in the interest of national security does not preclude the government from honoring the fundamental principles of justice. The government, having access to the secret information, can determine whether plaintiffs’ claims have merit and whether misjudgments or mistakes were made that violated plaintiffs’ human rights. Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the secrecy national security demands. For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in the United States during World War II. See Mochizuki v. United States, 43 Fed. Cl. 97 (1999).

Second, Congress has the authority to investigate alleged wrongdoing and restrain excesses by the executive branch. “ […]

Third, Congress also has the power to enact private bills. See Nixon v. Fitzgerald, 457 U.S. 731, 762 n.5 (1982) (Burger, C.J., concurring) (“For uncompensated injuries Congress may in its discretion provide separate nonjudicial remedies such as private bills.”) […]  When national security interests deny alleged victims of wrongful governmental action meaningful access to a judicial forum, private bills may be an appropriate alternative remedy.

Fourth, Congress has the authority to enact remedial legislation authorizing appropriate causes of action and procedures to address claims like those presented here. When the state secrets doctrine “compels the subordination of appellants’ interest in the pursuit of their claims to the executive’s duty to preserve our national security, this means that remedies for . . . violations that cannot be proven under existing legal standards, if there are to be such remedies, must be provided by Congress. That is where the government’s power to remedy wrongs is ultimately reposed.” Halkin v. Helms, 690 F.2d at 1001 (footnote omitted).

Id. at 13553-56 (internal citations omitted).

The Ninth Circuit’s decision is an interesting echo of the Second Circuit’s dismissal of Maher Arar’s suit against U.S. government officials alleging wrongful detention and torture in connection with his extraordinary rendition to Syria.  While the Second Circuit did not reach the questions of qualified immunity or the state secrets privilege, the court placed primary importance on non-judicial remedies in the resolution of such cases, explaining that “if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress”.  The U.S. Supreme Court recently declined review of the Second Circuit’s dismissal.

In their sharply worded opinion, the five dissenting judges argued that the majority’s holding was procedurally flawed, in that the plaintiffs’ allegations were sufficient to survive dismissal and the state secrets privilege should not have been used to prevent plaintiffs from proving (through non-secret evidence) the veracity of allegations “that any reasonable person would agree to be gross violations of the norms of international law, remediable under the Alien Tort Statute.”  Id.  at 13559. Rather, review of the privilege’s application should have taken place with regard to specific pieces of evidence, once the complaint had been answered and discovery had begun (not, as in this case, immediately after the complaint was filed), so as to avoid that the privilege trump due process of law. Id. at 13559-61.  The dissent’s – highly compelling – argument is that the majority allowed the state secrets privilege to apply to facts, rather than to evidence, prohibiting the plaintiffs from alleging certain conduct and knowledge by Jeppesen  rather than barring the introduction of pieces of evidence that could jeopardize national security (without having regard to whether privileged information could also support their allegations). Id. at 13568.  The dissent concludes by arguing that the alternative remedies identified by the majority fly in the face of the notion of judicial review and the concept of checks and balances.

The tie-breaking concurring opinion argued in favor of applying the Totten bar to dismiss.

U.S. Department of Justice Files Constitutional Challenge against Arizona Immigration Law

July 11, 2010 1 comment

The U.S. Department of Justice announced last week that it had filed a constitutional challenge to Arizona’s new immigration law, S.B. 1070 (discussed earlier on this blog here and here), seeking declaratory and injunctive relief against its enforcement.  The suit was filed on behalf of the Department of Justice, the Department of Homeland Security, and the Department of State, which each have responsibilities related to immigration enforcement.

As summarized in the press release, the complaint alleges that the Arizona law “unconstitutionally interferes with the federal government’s authority to set and enforce immigration policy” and “will place significant burdens on federal agencies, diverting their resources away from high-priority targets, such as aliens implicated in terrorism, drug smuggling, and gang activity, and those with criminal records”.  Additionally, the government cited the potential for harassment of lawful immigrants and visitors, and pointed to the law enforcement community’s argument that the Arizona law undermines its efforts to gain the trust and cooperation of immigrant communities.

The Department of Justice also filed a motion for preliminary injunctive relief, seeking to suspend enforcement of the law while the suit is resolved.

As mentioned earlier on this blog, U.S.-based NGOs have also filed a constitutional challenge to the Arizona law and United Nations experts have expressed concerns about its compatibility with international human rights standards (here and here).  Last week, Human Rights Watch published its report Tough, Fair and Practical that urges federal immigration reform and recommends specific changes to ensure that “immigrant crime victims a chance to seek justice, protect workers, respect the private and family life of longtime residents, and provide fair treatment for immigrants who come before the courts”.  [HRW]

Attorney General Eric Holder also stated that, should the law survive the constitutional challenge and come into effect, the Federal government may again take legal action if it believes racial profiling is taking place. [LA Times]

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