[Note that this first entry has particular relevance for the ongoing "national security courts" debate. ]
"Defending Preventive Detention" 
CHRISTOPHER SLOBOGIN, Vanderbilt University - School of Law
Email: slobogin@law.ufl.edu
Death penalty determinations, non-capital sentencing, detention of enemy combatants, sexual predator commitment, civil commitment, pretrial detention, and investigative stops by the police often or always depend upon assessments of dangerousness. This paper, an entry in the Criminal Law Conversations project, argues that liberty deprivation based on dangerousness is permissible under five conditions: The state must show: (1) that the individual has engaged in obviously risky conduct, either a crime or behavior that indicates harm is imminent; (2) that the liberty deprivation contemplated is proportionate to the likelihood and magnitude of the predicted harm; (3) that the predicted harm is a crime; and (4) when the preventive intervention is in lieu of conviction or appended to the end of a criminal sentence, that the individual is undeterrable, either due to serious mental illness or to a preference for serious crime over freedom. If preventive intervention occurs, the government must also show periodically: (5) that the nature of the liberty deprivation is no more restrictive than necessary to prevent the harm contemplated and that its duration is proportionately justified by the likelihood and magnitude of the predicted harm. Comments to this short paper may be submitted at: www.law.upenn.edu/cf/faculty/phrobins/conversations/status/index.cfm
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VIK KANWAR, New York University School of Law, Loyola University New Orleans - College of Law
Email: kanwar@nyu.edu
This Article will explore possible options for the application and implementation of International Humanitarian law ("IHL") in contexts of impaired sovereignty. As defined in this Article, "impaired sovereignty" is a range of situations where state authority has failed or collapsed amid violent conflict. In legal terms, the specific point of entry is provided by Common Article 1 ("CA1") of the Geneva Conventions, which calls on all parties to "respect" and "ensure respect" for international humanitarian law "in all circumstances." CA1 plays two roles: (I) as an enabling clause linking general obligations in IHL to a range of binding measures and responsible actors as a matter of law; and (II) as a catalyst for novel strategies for implementing legal obligations through various possible instruments and institutions, (e.g. Security Council resolutions, memoranda of understanding, or confidence building measures). This Article will gather what few opinions have been generated from experts in IHL on its applicability and implementation in such circumstances, and contextualize the emergence of "instrumentalist" or "ad hoc" options in light of the textual sources of obligations in the Geneva Conventions. In this sense, what can be seen is a potentially supportive relationship between the formal architecture of IHL and the emergence of improvised structures to buttress the Rule of Law.
"Conflicts between the Commander in Chief and Congress: Concurrent Power Over the Conduct of War"
Ohio State Law Journal, Vol. 69, p. 391, 2008
U. of Pittsburgh Legal Studies Research Paper No. 2007-12
JULES LOBEL, University of Pittsburgh - School of Law
Email: jll4@pitt.edu
The Bush Administration argues that the Commander in Chief has exclusive power to decide what military tactics to use to defeat a wartime enemy. The Administration's constitutional position that Congress may not permissibly interfere with these Executive Commander in Chief powers has been heavily criticized, particularly with respect to the Executive power to interrogate prisoners or engage in warrantless wiretapping on American citizens and its argument that Congress cannot limit the Iraq war. Yet, many critics concur in the Administration's starting point - that the President has exclusive authority over battlefield operations.
This article challenges that assumption. It argues that Congress and the President have concurrent power to conduct warfare that has been authorized by Congress, with Congress maintaining the ultimate authority to decide the methods, strategies and tactics by which the United States will wage war, if it chooses to exercise that authority. The President can direct and manage military campaigns in the absence of congressional regulation and restrictions, but the only Commander in Chief power that Congress cannot override is the President's power to command, to be, in Alexander Hamilton's words, the nation's "first general and Admiral." The understanding of concurrent power set forth in this article argues that the two branches power over the conduct of authorized warfare is divided as a practical matter by timing, not subject matter, with the President having the power of initiative over the theatre of war, and Congress having a more deliberative, reflective power, allowing it to check and limit Executive initiative both before and after the Executive acts.
"Comments on the 2007 Draft Manual on International Humanitarian Law in Air and Missile Warfare" 
Chinese Journal of International Law, Vol. 7, Issue 1, pp. 107-113, 2008
HAIPING WANG, affiliation not provided to SSRN
Although substantial changes have been made to the 2006 Draft Manual on International Humanitarian Law (IHL) in Air and Missile Warfare, questions remaining in the 2007 Draft should be clarified from the point of view of IHL, and the fundamental principles and basic concepts of IHL ought to be reaffirmed and respected. Since there are hints of confusion and violations of these principles and concepts, in places such as the definition of terms, the controversial and permitted weapons and the scope of application of the Manual, attention should be paid to them when perfecting the Draft Manual.
Journal of Conflict and Security Law, Vol. 12, Issue 3, pp. 419-445, 2007
ANTHONY CULLEN, affiliation not provided to SSRN
This article puts forward an argument for a particular approach to the interpretation of the definition of non-international armed conflict in the Rome Statute of the International Criminal Court. Focusing on the meaning of Article 8(2)(f), it is contended that this provision possesses a threshold of an application equivalent to that of Article 3 common to the four Geneva Conventions of 1949. In supporting this position, the first half of the article analyses the travaux preparatoires of the Rome Statute. Here relevant clauses relating to non-international armed conflict are analysed in order to highlight the threshold of application intended by their drafters. Following on from the travaux preparatoires of the Rome Statute, the second half of the article puts forward an interpretation of the threshold contained in Article 8(2)(f) as one applicable to all situations of non-international armed conflict subject to the court's jurisdiction. Drawing, among other things, on the conventional usage of the term armed conflict not of an international character and the customary status of non-international armed conflict provisions in the Rome Statute, an argument is advanced for an understanding of the threshold contained in Article 8(2)(f) as the one identical to that of common Article 3.
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"Miranda Warnings, Torture, the Right to Counsel and the War on Terror"
Chapman Law Review, Vol. 10, No. 3, p. 631, 2007
Chapman University Law Research Paper No. 08-80
M. KATHERINE B. DARMER, Chapman University - School of Law
Email: kdarmer@chapman.edu
The Miranda warnings are very much a product of their time, and this paper argues that, because they are prophylactic, the warnings can and should be modified in the context of the War on Terror. On the other hand, while Miranda over-regulates confessions in some contexts, it under-regulates in others by failing to vindicate core concerns of the Fifth Amendment. The article demonstrates that, under current doctrine, truly compelled confessions are analyzed under the Due Process Clause, which does not control the actions of foreign agents. Accordingly, detainees are vulnerable to having compelled confessions used against them. The article goes on to argue that proceedings at Guantanamo Bay are specifically problematic because of the use of coerced confessions and the lack of a right to counsel.
Comments