Sunday, March 27, 2005

This week in law and policy

DOD considers changes in Gitmo trial structure

The Department of Defense is considering making major changes to the military tribunals that are supposed to be used for the trials of detainees. According to military and administration sources, reports the New York Times, a 200-page manual circulated by DOD presents new standards and procedures.

If adopted, the new rules would create stronger protections for defendants, exclude confessions obtained by torture, and bring in more independent judges to conduct the trials. Generally, the tribunals would become more like military courts-martial. Such changes seemingly meet some of the challenges brought by lawyers like Lt. Commander Charles Swift, who visited Columbia LS earlier this year.

However, Vice President Dick Cheney's opposition to the modifications may create obstacles to getting them passed.

Despite Army recommendation, 17 involved in detainee deaths will not be tried

The Associated Press reports that 17 military personnel involved in detainee deaths (detailed below) will not be prosecuted for their involvement; in most cases, commanders ruled that service members had used appropriate force.

In the first comprehensive accounting of detainee deaths, the Army Criminal Investigation Command reports that twenty-seven detainees were killed in U.S. custody in Iraq and Afghanistan between August 2002 and November 2004. The deaths were suspected or confirmed homicides. Eighteen cases have led to recommendations of prosecution or other action by supervising agencies.

For example, in one case, the cause of death was "blunt force trauma" to an Iraqi detainee who died at Abu Ghraib on November 4, 2003. Several Navy SEAL commandos and one sailor have been charged in the death and will be court-martialed.

The legal ramifications of the deaths are complicated by disputes over the prisoners' status; while Afghan prisoners are POWs, many detainees captured in Iraq have been denied Geneva-law POW status.

No senior official or officer has been fired as a result of the investigation or any of the deaths (or other torture cases).

Schindlers exhaust legal appeals in Schiavo case

The tragic saga of Terri Schiavo appears to be drawing to a close, as her parents, Bob and Mary Schindler, have exhausted all available state and federal appeals. Schiavo's feeding tube was removed on March 18. While Schiavo's husband has maintained that his wife would not want to live in a persistent vegetative state, her parents have argued that Terri is minimally conscious and does not want to die. Courts have consistently sided with Michael Schiavo.

Spurred on by the Schiavo case, Congress has indicated that it plans a debate on the question of who should make end-of-life decisions when the patient's wishes are unknown.

Medellin v Dretke arguments on Monday

Scotusblog reports that Medellin v Dretke arguments will continue Monday. The case engages critical questions of international treaty law's treatment in American courts, habeas corpus law, and executive authority.

Medellin, a Mexican national, was convicted of murder and sentenced to death in a Texas court without being informed that Article 36 of the Vienna Convention on Consular Relations (the US is a party) gives him the right to request legal assistance from the Mexican consulate. Lower courts ruled that Medellin could not raise a defense or objection on appeal that was not raised at trial and, independently, that the Convention does not create a private right of action.

Excellent analysis and more links available on the Scotusblog.

California domestic partners law under attack

Jurist reports that trouble is brewing in California over the state's new domestic partnership law. Opponents claim that the law, which assigns many of the legal duties and rights of marriage to gay couples that register as domestic partners (including automatic parenthood), violates Proposition 22, California's version of DOMA.

Opponents claim that the proposition not only defined marriage as a relationship between a man and a woman, but also implicitly barred gay couples from the rights and responsibilities of marriage. Therefore, they argue, the law overturns the will of California voters.

California's Third District Court of Appeal has not indicated when it will rule.

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