Archive for the ‘liberty & security of person’ Category

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]

News Clips – October 15, 2010

October 15, 2010 Leave a comment
  • The loss of leading international human rights scholar Louis Henkin is mourned, while the legal community remembers his long career dedicated to the development of international law and the protection of human rights. [Human Rights First]
  • Moldova has ratified the Rome Statute to become the newest State Party to the International Criminal Court, bringing the total to 114. [UN]
  • Canadian citizen Omar Khadr may have reached a plea agreement with the U.S. government, ending his prosecution by a Military Commission at Guantánamo. [Human Rights First]  Khadr was detained in Afghanistan when he was 15 years old and recently turned 24 while in U.S. custody.  Canadian Prime Minister Stephen Harper has declined to confirm the status of Khadr’s case, but reports indicate that the deal would require Khadr to plead guilty to the war crimes charges against him – including murder, attempted murder, and conspiracy – and serve eight years in prison, the final seven years being served in Canada, contingent on the Canadian government’s agreement. [CBC News]  Khadr’s case has drawn attention because of his young age, but also as one of a handful of cases in which Guantánamo detainees have argued that their home country governments have an obligation to use diplomacy to secure their nationals’ release from Guantánamo.  See INTERIGHTSthird party intervention in Boumediene before the ECHR for relevant jurisprudence and an example of the analysis used in such cases.
  • France has arrested Rwandan rebel leader Callixte Mbarushimana, who is wanted by the ICC on charges that he committed war crimes and crimes against humanity in the Democratic Republic of Congo last year. [ICC; HRW]
  • Uzbekistan has convicted two journalists, Vladimir Berezovskii and Abdumalik Boboev, on defamation and insult charges in connection with articles written or made available by them which were critical of the Uzbek government’s policies; Boboev was ordered to pay a hefty fine. [VOA; HRW]
  • Kenya will no longer prosecute suspected Somali pirates captured by international forces, as it lets expire an agreement entered into last year with the European Union and several national governments. [Impunity Watch]
  • Indonesian President Yudhoyono cancelled his scheduled trip to the Netherlands last week due to a human rights suit filed in Dutch court against him by a Maluku separatist who was allegedly detained and severely beaten for showing a Maluku independence flag during a presidential speech in 2007. [VOA]
  • Federal district court judge Virginia A. Phillips has granted the plaintiffs permanent injunctive relief against the government’s “Don’t Ask, Don’t Tell” policy which had allowed the U.S. military to dismiss soldiers for revealing their homosexuality, upon finding that the law violates the U.S. Constitution’s substantive due process and free speech protections. [C.D. Cal.]  The federal legislature has recently been deliberating repeal of DADT, but Senate Democrats were unable to overcome Republican opposition to the bill. [WSJ]
  • Human Rights Watch calls on the Rwandan government to protect the rights and safety of opposition leaders, in relation to the detention of the leaders of two Rwandan opposition parties. [HRW]
  • The IACHR has released its hearing schedule for 140th Period of Sessions, to begin later this month. [IACHR]  The Commission’s thematic hearings will address issues ranging from camps for the internally displaced in Haiti to prosecutions for crimes against humanity in Argentina, while the hearings on the admissibility and merits of individual cases will include that of Guantánamo detainee Djamel AmezianeLivestreaming and/or recordings will be available for most hearings.
  • A Peruvian court has convicted Vladimiro Montesinos, former aide to ex-President Alberto Fujimori and de facto head of security, as well as members of the Colina death squad, on charges of extrajudicial killing and injury of 29 individuals in separate incidents, including the massacre of Barrios Altos.  The court (Sala Penal Especial de la Corte Suprema de Justicia) found the acts constituted crimes against humanity, as it similarly found in the case of Alberto Fujimori. [CEJIL]  The Barrios Altos case has been reviewed by the Inter-American Court of Human Rights, which found Peru responsible for the deaths and lack of investigation or reparation (merits decision here).
  • Ecuador is receiving negative attention from NGOs and the UN as recent unrest has led the Ecuadorian government to crack down on freedom of the press and of expression. [UN]
  • UN peacekeepers and Democratic Republic of Congo forces have captured a DRC rebel leader accused of orchestrating the mass rape of more than 300 people two months ago. [UN]
  • South Africa’s majority party, the African National Congress, is considering pursuing a bill that would allow the government to imprison journalists for 3 to 25 years for publishing any information that impacts the “national interest”. [Impunity Watch]
  • Following the Nobel Committee’s award of the Nobel Peace Prize to Chinese democracy activist Liu Xiaobo, UN experts and others have called for his release from detention and respect for fundamental rights in China. [UN]
  • The UN has called for an investigation into the October 8th death in custody of a man detained for throwing stones at DRC President Joseph Kabila’s motorcade last month. [UN]
  • ProPublica reports that the U.S. government significantly altered a federal judge’s decision granting a Guántanamo detainee’s habeas petition while reviewing the order for classified information, removing eight pages of the opinion, including the judge’s criticism of the government’s weak case, and changing key details to make the detainee appear more threatening.  The changes were discovered because the court had published the judge’s original opinion online. [Democracy Now!]

U.S. Judge Excludes Evidence Obtained through Torture in New York Trial of Former GITMO Detainee Ahmed Ghailani

October 6, 2010 Leave a comment

Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York ruled today that the federal government could not use the testimony of a reportedly key witness in the prosecution’s case against former Guantanamo detainee Ahmed Ghailani, who is on trial for his suspected involvement in the 1998 bombings of U.S. embassies in Kenya and Tanzania. [Washington Post; BBC]  Today’s judgment is available here. [JNSLP]  The witness, Hussein Abebe, also a Tanzanian citizen, was reportedly to testify that he provided Ghailani with explosives.  The government did not seek to admit Ghailani’s coerced statements themselves.

In 1998, the U.S. government presented charges against Ghailani in the Southern District of New York, and an indictment and warrant for his arrest were issued.  Ghailani remained at large until 2004, when he was captured by the Pakistani government and handed over to the CIA, which held him for roughly two years in various “black sites”.  He was transferred to Guantanamo Bay in 2006 and remained there until his transfer to face trial in New York in June 2009.

Judge Kaplan’s highly redacted August 18 ruling ordered a hearing to hear argument on the issue of Abebe’s testimony. [JNSLP]

Today, Judge Kaplan ruled that Abebe’s testimony was fruit of a poisonous tree and could not be admitted into evidence.  In reaching his decision, Judge Kaplan found that the existence of the would-be witness for the prosecution was learned through coercive interrogation of Ghailani carried out by the CIA at secret detention sites and Guantanamo, and was not convinced by the government’s arguments that it would have found the witness without the use of the coerced information or that the link between government coercion of Ghailani and the witness’ testimony was too remote to violate the Constitution.  Ghailani had argued that the witness’ testimony should be excluded because the identity of the witness was obtained through coerced interrogation, in that Ghailani was denied the right to counsel and was subjected to “extremely harsh interrogation methods”.  The defense classified the interrogation methods as torture.

Judge Kaplan had previously ruled on Ghailani’s motion to dismiss the indictment for violation of his speedy trial right (having been held for nearly five years before being presented for trial).  In his July 12, 2010 ruling, the judge denied the motion based on his findings that the government’s delay “served a valid purpose” of protecting national security, “Ghailani would have been detained as an enemy combatant  throughout the period of the government’s delay in this prosecution” anyway, and “Ghailani’s status as an enemy combatant always has made it uncertain whether he ever will be freed, regardless of the outcome of the criminal case”.

Judge Kaplan’s most recent ruling in the case also clearly states his understanding that Ghailani could legally be held indefinitely, writing:

his status as an “enemy combatant” probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.

For more on U.S. courts’ interpretation of Executive power to authorize continued detention of terrorism suspects, see Human Rights First’s publication Habeas Works.

Ghailani’s trial has been rescheduled to begin October 12, allowing the government time to reformulate its litigation strategy.

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.

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