call for papers; resending item on two GTMO habeas denials; forthcoming scholarship

1. Call for Papers: Florida Coastal Law Review, “A Decade of Transformation: The Continuing Impact of 9/11 on National Security and Civil Liberties in America” (Deadline December 1st)

Florida Coastal Law Review seeks submissions:

2011 marks the ten-year anniversary of the September 11 terrorist attacks on the United States. The events of that day prompted rapid and widespread changes to the American legal landscape. In remembrance of those indelible events, the Florida Coastal Law Review would like to announce the topic of its third annual Spring Symposium, scheduled for March 4, 2011: A Decade of Transformation: The Continuing Impact of 9/11 on National Security and Civil Liberty in America.

The Law Review invites the submission of articles, notes, essays, and other scholarly writing. We encourage submissions from practitioners, authors, and academicians. The Law Review will select five to seven individuals to participate in panel discussions and present papers within each topic. Articles by symposium participants will also be included in the symposium edition of the Florida Coastal Law Review, scheduled for publication in approximately September of 2011.

We encourage scholarly debate regarding related to changes in the law in reaction to the September 11 terrorist attacks and welcome you to consider the full range of topics related to “changes in the law.”Florida Coastal Law Review will consider all proposals for publication even if the proposal is not suitable or pertinent to this year’s symposium.

Proposals should be in the form of abstracts, not to exceed 500 words, and accompanied by the author’s name, title, institutional affiliation, and contact information. The deadline for submission is December 1, 2010. Please direct inquiries and submissions to Submissions Editor, Nathan R. Ross at The Law Review prefers electronic submissions; however, submissions may also be mailed to the Submissions Editor at: Florida Coastal Law Review, 8787 Baypine Road. Jacksonville, Florida 32256.

2. Re-circulating update re Kandari v. Obama (D.D.C. Sep. 2010) and Tolfiq al Bihani v. Obama (D.D.C. Sep. 24, 2010) (GTMO habeas denials)

When I circulated this item last Friday, it came through the system garbled (I don’t know why this happens once every now and then, and apologize for the disruptions this causes). So here is the item once more

The underlying opinions are not yet available, but readers may be interested in knowing that merits decisions in two more GTMO habeas cases were reported recently. The government prevailed in both instances.

First, Judge Kollar-Kotelly has denied habeas to Fayiz al Kandari of Kuwait (see here for links to the papers from his CSRT and ARB proceedings).

Second, Judge Walton has denied habeas to Tolfiq al-Bihani of Saudi Arabia (see here for the CSRT and ARB papers; note that this is not Ghaleb al-Bihani, whose case has generated a much-discussed D.C. Circuit opinion already).

3. Forthcoming Scholarship

“The Terrorist Detention Review Reform Act: Detention Policy and Political Reality

Walter E. Kuhn
Seton Hall Legislative Journal, Forthcoming

Since the Supreme Court’s 2008 decision in Boumediene, federal judges have fashioned a variety of procedural rules to govern habeas proceedings involving detainees held at Guantanamo Bay. While judges and commentators have called for statutory guidance, politics and substantive disagreement have prevented Congress and the President from clarifying the applicable procedural rules.

In the Terrorist Detention Review Reform Act, Senator Lindsey Graham offered legislation to untangle the many procedural issues facing the courts. From the scope of the President’s detention authority to the use of coerced testimony, the bill would construct a statutory framework for adjudicating habeas petitions by law of war detainees. The current political environment creates incentives for Congress and the President to abdicate their responsibility for detention policy to the courts, but the nation would be better served by the certainty of procedural rules considered and ratified by the political branches of government.

Time for International Cooperation in Terror Justice: A Proposed International Criminal Justice System to Address Transnational Terrorism

Shane Reeves (U.S. Army – The Judge Advocate General’s Legal Center and School)

Harvard International Review (Apr. 2010)

From the Conclusion:

Admittedly, the proposed framework must clear many significant and difficult hurdles to be viable. However, the increasingly prolific violence of transnational terrorist groups provides a warning to the international community that continued indifference and incoherence in policy will only encourage future indiscriminate attacks on individual nations and their civilian populations. The urgent need for collective action is apparent as these ideologically based, non-state affiliated groups continue to gain influence and ability. Only a comprehensive international criminal justice system built through global cooperation will provide the moral force required to counteract the recurring threat presented by transnational terrorism and thus dissuade future generations from embracing ideologically driven violence.

“Loftier Standards for the CIA’s Remote-Control Killing”

Statement to House Subcommittee on National Security & Foreign Affairs
William Mitchell Legal Studies Research Paper No. 2010-11

AFSHEEN JOHN RADSAN, William Mitchell College of Law
Email: jradsan

International humanitarian law can be developed into specific regulations for the CIA’s targeted killing. Accordingly, the drone operator must be sure beyond a reasonable doubt that the trigger is being pulled on a functional enemy combatant. In addition, she must conclude that the requirements of military necessity and proportionality have been met. Afterward, the CIA’s Inspector General must review each CIA drone strike, including the agency’s compliance with a checklist of standards and procedures.

A program that establishes a very high certainty for targeting as well as a hard-look after each strike will be fair and reasonable whether the people in the cross-hairs are Americans or citizens from other countries. In the language of IHL, these are feasible precautions for the remote-control weapons of the new century.

Lead Author

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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