maelorin: (Default)

Is it ironic, or just shameful, that our Government makes decisions like this without regard for public opinion, while accusing the very institutions that keep check on the use and abuse of power that keeps us a democracy of doing just that?
Mood:: 'annoyed' annoyed
location: apartment 8
Music:: Faithless - Bombs CDM Promo - Bombs (Benny Benassi Remix)
maelorin: (power corrupts)
Bills of rights do not protect freedoms
Philip Ruddock
August 31, 2007
Ruddock's article, edited and commented )

Philip Ruddock is the federal Attorney-General.

Nic Suzor has written a pithy post in response: He concludes:

This is another facet of a systematic attack on the judiciary from a government which is terrified of having its policies and actions scrutinised. From immigration to copyright to industrial relations to prisoners’ right to vote, the Howard Government has complained about the power of the courts to regulate and limit their power.

The real threat to democracy is not judicial intervention. To claim that a judge who takes a literal and conservative approach to the text of the law is not acting politically is mere legal fetishism.

The real threat to democracy here is the sustained attack on judicial independence that we have witnessed from a government which refuses to have its policies reviewed, either by the legislature before they become law, or by the judiciary afterwards.

In short, Ruddock is continuing to espouse the Howard Government's "Waaah! Woe is us! The Law (our own laws even) are getting used 'against' us! Waaah!" line. Time and again we are told that they are obstructed in their 'duty' to 'protect' us.

But we can see under the curtain ...
Music:: Faithless - Bombs CDM Promo - Bombs (Benny Benassi Dub)
Mood:: 'angry' angry
location: apartment 8
maelorin: (lawyers)

Thursday, June 29, 2006
BREAKING NEWS ~ Supreme Court rules Guantanamo military commissions illegal
Jeannie Shawl at 10:12 AM ET

[JURIST] Wire services are reporting that the US Supreme Court [official website] has ruled that military commissions [DOD materials] at Guantanamo Bay are illegal under military law and the Geneva Conventions [ICRC materials], holding in Hamdan v. Rumsfeld [Duke Law case backgrounder; JURIST news archive], that President Bush did not have authority to establish the commissions as constituted.

Salim Hamdan [Trial Watch profile], a former driver for Osama bin Laden who is being held at Guantanamo Bay [JURIST news archive], challenged his trial before a military commission [JURIST news archive] rather than in front of an ordinary military court. Hamdan's lawyer told the Court during oral arguments [recorded audio; JURIST report] in March that the commission system is unfair because it allows President Bush's military subordinates to determine who will act as judge and jury and also decide which crimes will be prosecuted. The Bush administration argued that the special military tribunals established by the president [Military Order text], which do not adhere to either standard US military procedure or the Geneva Conventions, can be used to prosecute suspected terrorists as war criminals. The government has said that Hamdan is not entitled to Geneva Convention protections because he was not part of a uniformed enemy.

10:27 AM ET - The decision was 5-3, with Chief Justice Roberts not participating as he had previously ruled on the case in favor of the government [opinion text; JURIST report] while sitting as a judge on the US DC Circuit Court of Appeals. SCOTUSblog has more.

11:29 AM ET - The Court held there is no express authorization from Congress for Hamdan's military commission and that commission structures and procedures violate both the Uniform Code of Military Justice [text] and the Geneva Conventions. The Court said that commission procedures set forth in Commission Order No. 1 [PDF text] do not comply with UCMJ Article 36 [text]. The statute allows military commission procedures to differ from standard criminal procedure or military court-martial rules when necessary, but the Court ruled that although the President has determined that it is impracticable to apply "the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts," he has not "made a similar official determination that it is impracticable to apply the rules for courts-martial." The Court also said:

Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion, for example, of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. Assuming arguendo that the reasons articulated in the President's Article 36(a) determination ought to be considered in evaluating the impracticability of applying court-martial rules, the only reason offered in support of that determination is the danger posed by international terrorism.52 Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan's trial, any variance from the rules that govern courts-martial.

The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present. See 10 U. S. C. A. §839(c) (Supp. 2006). Whether or not that departure technically is "contrary to or inconsistent with" the terms of the UCMJ, 10 U. S. C. §836(a), the jettisoning of so basic a right cannot lightly be excused as "practicable."

Under the circumstances, then, the rules applicable in courts-martial must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Article 36(b).

With respect to the Geneva Conventions, the Court held that Article 3 [text] - often called Common Article 3 as it is common to all four Geneva Conventions - applies even though the US is at war with al Qaeda, which is not a signatory to the conventions. The Court said:

Common Article 3, then, is applicable here and, as indicated above, requires that Hamdan be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." 6 U. S. T., at 3320 (Art. 3, ¶1(d)). While the term "regularly constituted court" is not specifically defined in either Common Article 3 or its accompanying commentary, other sources disclose its core meaning. The commentary accompanying a provision of the Fourth Geneva Convention, for example, defines "'regularly constituted'" tribunals to include "ordinary military courts" and "definitely exclud[e] all special tribunals." GCIV Commentary 340 (defining the term "properly constituted" in Article 66, which the commentary treats as identical to "regularly constituted");64 see also Yamashita, 327 U. S., at 44 (Rutledge, J., dissenting) (describing military commission as a court "specially constituted for a particular trial"). And one of the Red Cross' own treatises defines "regularly constituted court" as used in Common Article 3 to mean "established and organized in accordance with the laws and procedures already in force in a country." Int'l Comm. of Red Cross, 1 Customary International Humanitarian Law 355 (2005); see also GCIV Commentary 340 (observing that "ordinary military courts" will "be set up in accordance with the recognized principles governing the administration of justice").

The Government offers only a cursory defense of Hamdan's military commission in light of Common Article 3. See Brief for Respondents 49-50. As Justice Kennedy explains, that defense fails because "[t]he regular military courts in our system are the courts-martial established by congressional statutes." Post, at 8 (opinion concurring in part). At a minimum, a military commission "can be 'regularly constituted' by the standards of our military justice system only if some practical need explains deviations from court-martial practice." Post, at 10. As we have explained, see Part VI-C, supra, no such need has been demonstrated here.65 ...

Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.

The Court also refused to grant the government's motion to dismiss [PDF text; JURIST report] the case based on the Detainee Treatment Act [JURIST document], part of which limits the ability of Guantanamo prisoners to challenge their detentions in federal courts, saying that Congress did not intend for the relevant DTA provision to apply to pending claims. The Court also specifically noted that it was not addressing "the Government's power to detain [Hamdan] for the duration of active hostilities in order to prevent such harm."

Read the Court's opinion [text] per Justice Stevens, along with a concurrence [text] from Justice Breyer, who was joined by Justices Kennedy, Souter and Ginsburg; a concurrence in part and dissent in part [text] from Justice Kennedy, who was joined in part by Justices Souter, Ginsburg and Breyer; a dissent [text] from Justice Scalia, who was joined by Justices Thomas and Alito; a dissent [text] from Justice Thomas, who was joined in full by Justice Scalia and in part by Justice Alito; and a final dissent [text] from Justice Alito, who was joined in part by Justices Scalia and Thomas.

Mood:: 'happy' happy
maelorin: (no happy ever after)
Friday, June 16, 2006
Australia AG says changing terror laws could compromise national security
Joshua Pantesco at 9:57 AM ET
FedGov.AU is resisting concerns that it's processes are undemocratic, rejecting advice from it's own review that it's laws and processes are not transparent, too complex, too vague, and basically unfair. Nothing new then really.
Friday, June 16, 2006
Australia Senate upholds federal override of capital district civil union law
Joshua Pantesco at 10:03 AM ET
The ACT is supposedly a self-governing territory - but this FedGov is quite happy to impose it's own will on the ACT and the NT. Apparently allowing homosexuals to have civil unions "undermines" heterosexual marriage.

Frankly, heterosexuals are doing that quite fine for themselves. No law, be it FedGov Family law or otherwise can make people take anything seriously. Let alone resile form fucking each over after they've (usually) stopped fucking each other.
Friday, June 16, 2006
UK Foreign Office takes over Hicks Guantanamo release case
Jaime Jansen at 11:42 AM ET
The UK has now taken over from the Australian Government in efforts to press for the release of Australian David Hicks. Since our FedGov doesn't believe Australian Citizenship means anything more than the joy of being taxed in Aussie dollars - if you're lucky enough to still have a job that pays enough to be taxed - Mr Hicks et al have turned to the UK for assistance.

Basically, our FedGov has been clear - it supports Family Values - so long as that means parents are out working ASAP, doing whatever their employers desire, for whatever the employer is prepared to part with, and under whatever terms they're offered. "Flexibility" in the workplace is code for "You'll do as your told, and like it". They want women to be breeding - so long as they're married to a male. And if they're not, they're damned irresponsible.

FedGov has a 1950s vision of social life, an 1850s vision of employment conditions, and a AU$7.50 vision for the minimum wage.
Mood:: 'gloomy' gloomy
maelorin: (inevitable)

Tuesday, May 30, 2006
Australia AG considering sedition laws revision
Jaime Jansen at 12:10 PM ET

[JURIST] Australian Attorney-General Philip Ruddock [official website] said Tuesday that he is willing to revise [ABC World Today transcript] Australia's new sedition laws [summary], particularly the use of the word "sedition," after the Australian Law Reform Commission (ALRC) [official website] released a discussion paper [text] Monday arguing that "sedition" implies a threat to free speech [press release; ALRC sedition materials]. He indicated, however, that he will not act on the ALRC's recommendation until it submits a final report.

The ALRC, the independent federal statutory agency charged with conducting official inquiries into areas for possible legal reform, rejected an argument put forth by Australia's three major news organizations that the sedition laws dealing with the incitement of terrorism are excessive and
should not be applied to major media outlets [JURIST report]. The ALRC nonetheless suggested changing the term "sedition" to "offenses against political liberty and public order," while also recommending 24 other changes to clearly state that the sedition laws only target people seeking to overthrow the government through violence, and not members of the arts community using political satire. Australia's sedition laws were enacted late last year as part of sweeping anti-terrorism legislation [JURIST report].

The Australian has

Sedition is an ancient offence (and a reasonably consistent one until very recently) that consisted of covert behaviour aimed at inciting others to overthrow of the public good order or disruption of good governance. So encouraging others to do something.

Treason consisted of acts directed to undermining your lawful government's capacity to wage war on the enemy. That is, you directly assist the enemy in some way.

Australia's new sedition laws seem to conflate the two in ugly ways. No only that, but the language is very broad - potentially capturing a huge range of normally acceptable democratic activities.

What has been more difficult to understand - as a lawyer - is why the law was brought into effect in the first place while intending to have the efficacy and even appropriateness of the law [and the offence of sedition itself] examined by the ALRC only a few months later. The ALRC did not take long to pencil in it's immediate concerns (as much of the legal profession generally across Australia had done back when the law was first leaked out of the secret process it was originally floated within and we got our first look at it).

Mood:: unsurprised
location: Adelaide, Australia
Music:: ride of the valkyries
maelorin: (staring)

Friday, May 05, 2006
Senate panel OKs demand for legal opinion on interrogation methods
Jeannie Shawl at 9:35 AM ET

[JURIST] The US Senate Armed Services Committee [official website] on Thursday added a provision to the 2007 defense spending bill which would require the Bush administration to provide "a US government coordinated legal opinion on whether certain specified interrogation techniques would constitute cruel, inhuman or degrading treatment under the Detainee Treatment Act of 2005." The provision was inserted into the National Defense Authorization Act for Fiscal Year 2007 [S 2507 summary] as the committee completed markup [press release, PDF] of the bill. The Detainee Treatment Act of 2005 [JURIST document], passed as part of the 2006 military spending bill, prohibits "cruel, inhuman, or degrading treatment or punishment" of detainees "under the physical control of the United States Government," but clear rules defining these terms have yet to be provided to military interrogators. US Defense Department [official website] officials have been updating the Army Field Manual on Intelligence Interrogation [current text] to provide clearer guidelines, but the revised manual has not yet been released [JURIST report]. The release has been held up due to debate on whether specific guidelines on interrogation techniques [JURIST report] should be classified. The Defense Department's draft would keep secret specific descriptions of what constitutes acceptable interrogation practices, but Armed Services Committee members have raised concerns that by keeping this information classified, there is no way to ensure that the guidelines fall within the bounds of US and international law.

The US House is set to vote on its defense spending bill next week, and the full Senate could begin debate on the Senate version by the end of the month. The interrogation opinion provision will become law only if it is still included in the reconciled version of the spending bill eventually passed by both houses of Congress and signed by the President.

AP has

Excuse me while I wonder why getting their own opinion on whether their opinion regarding what may, or may not, be "cruel, inhuman or degrading treatment" seems a bit ... well ...

At least someone is thinking that there may be a flaw or two in this program.
Music:: thy dungeonman 3 (homestar runner)
Mood:: 'groggy' groggy
maelorin: (staring)

Wednesday, May 03, 2006
Human rights key component of Annan global counter-terror plan
Angela Onikepe at 7:51 AM ET

[JURIST Europe] UN Secretary-General Kofi Annan presented [speech text] his recommendations [UN press release] for a global counter-terrorism strategy to the UN General Assembly Tuesday, emphasizing the need to respect human rights in all aspects of anti-terrorism policy and practice. The defense of human rights constituted the fifth part of what he called the fundamental components of a global strategy, which also included:

  • dissuading people from resorting to terrorism or supporting it;
  • denying terrorists the means to carry out an attack;
  • deterring States from supporting terrorism; and
  • developing State capacity to defeat terrorism

Annan's strategy is encapsulated in a 32-page report [text] calling on states to "ratify and implement the core international human rights instruments and accept the competence of international and national human rights monitoring bodies." Annan insisted that by defending human rights, the global community can deprive terrorists of a critical victory. He also called upon member states to agree on the draft of a Comprehensive Convention on International Terrorism [text], long held up by disagreements over a core definition of terrorism, insisting that those disagreements should not stand in the way of agreement on other issues.

The UN General Assembly is slated to begin discussions on Annan's recommendations May 11.

Voice of America has more.

Music:: penn & teller: bullshit (ground zero)
Mood:: 'contemplative' contemplative
maelorin: (never fails) PUBLIC POLICY INTELLIGENCE REPORT 04.06.2006

Ending the CSR Debate
Bart Mongoven

note: the text here came from an email from - which requires you to pay to access most of their content ... the mark-ups here are my own - i didn't see any point leaving in links that i couldn't use. [the text is in usa english. sorry.]

The debate over the moral responsibilities of corporations to society has taken on a more solid form with the release of the first draft of the standard known as ISO-26000. When finished, the standard -- drafted by the International Organization for Standardization (ISO) -- can be used by corporations to determine (and prove) that they are acting in a socially responsible manner. The standard will not be published until 2008, and the current draft reportedly is in a highly unfinished form, with many significant questions still to be answered. Nonetheless, the release of the draft marks a turning point in the long-running debate.

there is debate about whether "corporate social responsibility" even exists ... and what, if anything, it might actually mean.

the idea of an international standard for corporate social responsibility intrigues me greatly. (hence, i suppose, this post :)

trust is getting bandied about a bit now and then as an important - even crucial - factor in corporate success. at the very worst in the form of 'branding' [or as i put it recently, blanding]
Read more... )
Music:: computer fan hum
Mood:: 'indescribable' indescribable
maelorin: (Default)
posted by [personal profile] maelorin at 07:48pm on 07/04/2006 under , , , ,
Thursday, April 06, 2006
US will not seek election to new UN Human Rights Council
David Shucosky at 4:10 PM ET

[JURIST] The State Department announced Thursday afternoon in Washington that the United States will not be seeking membership this year of the new UN Human Rights Council [official website; UN materials; FAQ]. A spokesman said in a press statement ahead of a scheduled daily briefing:

There are strong candidates in our regional group, with long records of support for human rights, that voted in favor of the resolution creating the Council. They should have the opportunity to run....

Since the credibility of the Council depends on its membership, the United States will actively campaign on behalf of candidates genuinely committed to the promotion and protection of human rights, and which will act as responsible members of this new body. We will also actively campaign against states that systematically abuse human rights.

With a strong collective effort in the coming months to make the new Council effective, the United States will likely run for the Council next year.

Last month the US led a tiny minority of 4 countries opposing [JURIST report] the resolution [JURIST document] creating the council, insisting that it wanted more to be done to prevent abusive countries from gaining membership [JURIST report] on the body. There had been speculation that the US would not be able to secure the majority 96 UN General Assembly votes necessary for a successful membership bid. Cuba and Iran are two of the 40 countries that have so far applied for council membership [UN list]; 47 countries will be chosen on May 9.

The new body, which replaces the troubled UN Commission on Human Rights [official website], which held its last meeting on March 27 [JURIST report], meets for the first time in Geneva on June 19. Countries will serve a maximum of two three-year terms.

AP has more.

this has sooo gotta work better than the commission ... 47 on the council ...

"that the United States will not be seeking membership" ... "speculation that the US would not be able to secure the majority 96 UN General Assembly votes necessary for a successful membership bid."
Mood:: 'morose' morose
maelorin: (complete boob)
posted by [personal profile] maelorin at 11:48pm on 28/03/2006 under , , , ,
Monday, March 27, 2006
UN rights commission holds last session
Katerina Ossenova at 4:53 PM ET

[JURIST] The last meeting of the UN Commission on Human Rights [official website] took place in Geneva Monday, as its replacement prepares to hold its first session on June 19. The UN Human Rights Council [JURIST news archive; UN backgrounder] was brought into being by a General Assembly resolution [text] earlier this month after five months of negotiations following the UN World Summit. The Commission, created in 1946, had been sharply criticized for allowing countries with continued human rights violations to win seats and protect each other from inquiries.

While originally inspired by the United States, the new Council
faced objections [JURIST report] from the United States [official statement], Israel, the Marshall Islands, and Palau for not taking enough measures to prevent abusive countries from becoming members. US Ambassador Kevin Moley told the Associated Press, "The good news is that the commission is over. The bad news is that what replaces it isn't much better." The US has not announced whether it will seek election to the council.

AP has

unless and until everyone recognises that the club isn't really going to criticise itself too much, everyone is going to feel dissatisfied with any human rights body the club creates. especially when the club creates a body that it (a) refuses to fund properly, preventing it from actually doing much, and (b) refuses to give sufficient powers to, so it cannot do much unless 'invited' to intervene.

also, one wonders where the usa gets off whinging about the 'ineffectiveness' of any body that it proposes on the one hand, then objects too when it is formed. leads to suspicions of sensitivities to the possibility that the body might say things the usa does not like to hear ...

[also, are not the marshall islands a protectorate of the usa, or have i missed something?]

Mood:: 'crappy' crappy


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