Al-Bihani v. Obama

* Al-Bihani v. Obama (D.C. Cir. May 13, 2010) (govt brief opposing en banc review)

The government has filed a brief opposing en banc review of the Circuit’s Al-Bihani opinion (which confirmed the detainability of the petitioner, confirmed that a preponderance standard of proof is permissible in the GTMO habeas context, and dealt with various other issues). Worth noting, the administration argues that the circuit panel’s opinion was correct except insofar as the panel concluded that international law has no bearing on the scope of the government’s detention authority under the AUMF.

The brief is posted here thanks to SCOTUSblog: http://www.scotusblog.com/wp-content/uploads/2010/05/US-response-re-rehear-Al-Bihani-5-13-10.pdf

By Robert M. Chesney

Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.

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