Legal Issues Wrap-up For The Night: War Crimes, Twitter Account Appeal And Wisconsin Labor Issue.
[JURIST] International Criminal Court (ICC) Chief Prosecutor Luis Moreno-Ocampo[official websites] told the press during a visit to Cairo Thursday that he is 100 percent certain his office will bring charges against Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive]. Moreno-Ocampo said that his office is coordinating with a number of law enforcement organizations, including Interpol, in an investigation into six separate incidents in which Gaddafi is alleged to have ordered massive shooting attacks on peaceful protests, a process he said is certain to result in charges. Moreno-Ocampo warned Libyan officials last week [JURIST report; video] that any violence against civilians in the rebel-held capital Benghazi would result in prosecution for war crimes. His warning followed calls for a UN-imposed no-fly zone [JURIST report] over the Middle Eastern nation after reports surfaced indicating that Gaddafi had been using aircraft attacks to combat civilian protests. Shortly before the UN vote authorizing the resolution, Gaddafi threatened an imminent attack on Benghazi [NYT report]. Although the Libyan government responded to the ICC's warning with promises of a ceasefire [AP report], the attacks have continued.
Earlier this month, the ICC launched a probe to investigate allegations of crimes against humanity[JURIST report] by the Libyan government. Moreno-Ocampo specifically identified Gaddafi, his sons and his political allies as targets of the investigation and warned Libyan officials that complicity in such abuses would result in prosecution. Additionally, the UN appointed a team of special prosecutors [JURIST report] to investigate allegations that Gaddafi ordered forces to torture and abduct opponents. Gaddafi is accused of ordering hospital patients' executions, firing on crowds of protesters and using other extreme tactics against his opponents. The UN General Assembly has voted to suspend Libya [JURIST report] from the UN Human Rights Council (UNHRC) [official website] in response to the violent suppression of peaceful protesters by forces loyal to Gaddafi. The ICC has also said that it will not grant immunity [JURIST report] to any person perpetrating crimes against humanity in Libya.
[JURIST] Spanish National Court judge Baltasar Garzon [BBC profile; JURIST news archive] on Thursday filed a petition [press release] with the European Court of Human Rights(ECHR) [official website], challenging a case brought against him in Spain that alleges abuse of power in investigating crimes committed under the Franco dictatorship [BBC backgrounder].
Garzon faces charges of politically motivated corruption [JURIST report] and violation of the 1977 Amnesty Law, which affords amnesty for Franco-era crimes. The charges are based on Garzon's 2008 order [JURIST report] for certain government agencies, the Episcopal Conference [church website, in Spanish], the University of Granada [academic website, in Spanish] and the mayors of four cities to produce the names of people buried in mass graves, as well as the circumstances and dates of their burial. The International Centre for the Legal Protection of Human Rights (INTERIGHTS) [advocacy website], a London-based NGO representing Garzon, claims he opened the investigation at the request of families and representatives of the regime's victims, and should be granted judicial immunity from such allegations. INTERIGHTS also argues that the Spanish courts lack sufficient grounds for trial:
Judge Garzon has been prosecuted under Spain's prevarication (or malfeasance) law, which allows judges to be prosecuted for unjust judgments. Normally the prosecution of judges under this law in Spain and the prosecution of judges generally in European States is highly exceptional. According to prior decisions of the Spanish courts, judges can only be prosecuted for unjust decisions that are irrational, perverse or objectively unsustainable. There is no basis in Spanish or international law for a judge to be prosecuted for reasoned interpretations of the law. The prosecution of judges for their decisions, specifically for their interpretations of the law, rather than the appeal or review of those decisions within the normal legal framework, violates the fundamental principle of the independence of judges.
It may take weeks for the ECHR to decide whether to hear his case.
Garzon has faced turmoil since his 2008 decision to exhume the mass graves. In September, the Criminal Chamber of the Spanish Supreme Court [official website, in Spanish] unanimously confirmed [JURIST report] a lower court order that Garzon abused his power and must face trial. The board of judges denied [El Pais report, in Spanish] Garzon's appeal of the order, although his trial is still pending. If convicted, Garzon could face a suspension of up to 20 years. In May, the Spanish General Counsel of the Judiciary (CGPJ) [official website, in Spanish] voted unanimously to suspend [JURIST report] Garzon. Garzon is widely known for using universal jurisdiction [AI backgrounder; JURIST news archive] extensively in the past to bring several high-profile rights cases, including those against Osama bin Laden and former Chilean dictator Augusto Pinochet
[JURIST] The Wisconsin Court of Appeals [official website] on Thursday declined to rule[certification, PDF] on an order [text; JURIST report] enjoining Wisconsin Secretary of State Douglas La Follette [official website] from publishing a legislative measure designed to curb the collective bargaining power of unions. The case will move on to the stateSupreme Court [official website], which will decide whether a court has the authority to enjoin the secretary of state's publication of the Budget Repair Bill [SB 11 text, PDF] before it becomes law.
The lawsuit [JURIST report], filed last week by District Attorney Ismael Ozanne (D) [official website], alleges that Republican legislators did not follow the state's open meetings law [text], a rule requiring 24 hours notice or two hours if there is an emergency, before a public meeting. The Court of Appeals passed the case to the state's Supreme Court because it involves "significant issues" and cited the high court as the "proper forum" to resolve them:
This case presents several significant issues involving justiciability and the remedies that are available under Wisconsin's Open Meetings Law. As we will explain below, we believe that resolution of these questions will require clarification of the interaction between the Open Meetings Law and a line of cases dealing with the separation of powers doctrine... Plainly, this case has broad statewide implications for the general public and those most directly affected by the challenged Act, in addition to those interested in the manner of its passage. Accordingly, we certify the petition for leave to appeal and accompanying motion for temporary relief to the Wisconsin Supreme Court.
A majority of the court's seven justices must agree to hear the suit before the case can move forward.
Ozanne's suit was the second such challenge by a state official, following a similar suit [complaint] filed by Dane County Executive Kathleen Falk (D) [official profile]. On Wednesday, Attorney General JB Van Hollen (R) [official website] asked the court to block [motion, PDF] the Dane County Circuit Court [official website] order. He also asked for leave to appeal the order and for relief consisting of an order to stay the circuit court's ruling. Van Hollen argues that the Dane County Circuit Court did not have jurisdiction to hear the case because the four named defendants, who are all state legislators, enjoy legislative immunity during the regular legislative term. He also argued that the circuit court did not have jurisdiction to enjoin the publishing of the law. The provisions of the Budget Repair Bill limiting bargaining rights incensed unions and their supporters, sparking protests which have been ongoing since mid-February, when the bill was introduced. The bill was signed [JURIST report] into law by Governor Scott Walker (R) [official website] on March 11.
Three WikiLeaks associates entangled in a federal grand jury probe in Virginia asked a federal judge Friday to reverse a ruling that would hand over records of their Twitter use to federal prosecutors, arguing that the ruling violates a federal statute and the constitution.
The 41-page filing (.pdf) argues that Magistrate Judge Theresa Buchanan, in Alexandria, Virginia, erred earlier this month when she ordered Twitter to turn over non-content information on the Twitter accounts of WikiLeaks activist Jacob Appelbaum, Dutch businessman Rop Gonggrijp, and Birgitta Jonsdottir, a member of Iceland’s parliament who helped WikiLeaks prepare a classified U.S. Army video for release last April.
They’re asking for a U.S. district judge to overrule the magistrate. “It’s an appeal, so you can’t really put in much that’s new,” says Cindy Cohn, legal director for the Electronic Frontier Foundation, which is representing Jonsdottir in the case. “But we did point out that the magistrate got some things wrong.”
The government has agreed not to press Twitter for the records until the appeal is done, says Cohn.
The Justice Department’s demand for the records is part of a grand jury investigation that appears to be probing WikiLeaks for its high-profile leaks of classified U.S. material. The government is seeking the records under 18 USC 2703(d), a provision of the 1994 Stored Communications Act that governs law enforcement access to non-content internet records, such as transaction information.
More powerful than a subpoena, but not as strong as a search warrant, a 2703(d) order is supposed to be issued when prosecutors provide a judge with “specific and articulable facts” that show the information they seek is relevant and material to a criminal investigation. But the people targeted in the records demand don’t have to themselves be suspected of criminal wrongdoing.
In their new filing, the three argue that the government could not have met that legal standard in its sealed application for the records order, and instead prosecutors appear to be acting on a “hunch” that “all of the Parties’ Twitter records have some connection to its WikiLeaks investigation. That cannot be the case — the vast majority of the Parties’ Twitter activity has nothing to do with WikiLeaks.”
They also reasserted their earlier arguments — rejected by Buchanan on March 11 — that the Twitter order violates their First Amendment rights of speech and association.
Among other things, they noted, the logs held by Twitter — including IP addresses — would reveal where they were physically located while tweeting, and “information about the identity and geographical location of every person with whom the Parties have associated by exchanging private DMs.”
Moreover, they argue, the entire investigation into WikiLeaks implicates the free speech rights of a publisher.
“While the government has refused to provide the Parties with its Application, it has declared its disapprobation of WikiLeaks and its desire to prosecute somebody associated with it,” they wrote. “Attorney General [Eric] Holder personally proclaimed that the government will prosecute anyone it can and that the Department of Justice’s tough talk ‘is not saber-rattling.’ No matter how much the government dislikes any given speech or advocacy, it cannot use that protected conduct as a pretext for overboard searches or a basis for criminality.”
The order being challenged demanded information from the accounts from November 1, 2009 to June of last year, and also sought the same information on the WikiLeaks’ Twitter account.
The government has informally agreed to narrow that time frame, according to the filing. Regarding Twitter direct messages, prosecutors have informally agreed to only obtain the non-content information on DMs sent or received among the four accounts, says Cohn.
A hearing on the issue is tentatively set for April 22.