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\\server05\productn\n\nys\66-2\front662.txt unknown Seq: 1 12-OCT-10 15:54 NEW YORK UNIVERSITY ANNUAL SURVEY OF AMERICAN LAW VOLUME 66 ISSUE 2 NEW YORK UNIVERSITY SCHOOL OF LAW ARTHUR T. VANDERBILT HALL Washington Square New York City \\server05\productn\n\nys\66-2\front662.txt unknown Seq: 2 12-OCT-10 15:54 New York University Annual Survey of American Law is in its sixty-ninth year of publication. L.C. Cat. Card No.: 46-30523 ISSN 0066-4413 All Rights Reserved New York University Annual Survey of American Law is published quarterly at 110 West 3rd Street, New York, New York 10012. Subscription price: $30.00 per year (plus $4.00 for foreign mailing). Single issues are available at $16.00 per issue (plus $1.00 for foreign mailing). For regular subscriptions or single issues, contact the Annual Survey editorial office. Back issues may be ordered directly from William S. Hein & Co., Inc., by mail (1285 Main St., Buffalo, NY 14209-1987), phone (800- 828-7571), fax (716-883-8100), or email ([email protected]). Back issues are also available in PDF format through HeinOnline (http://heinonline.org). All articles copyright 2010 by the New York University Annual Survey of American Law, except when otherwise expressly indicated. For permission to reprint an article or any portion thereof, please address your written request to the New York University Annual Survey of American Law. Copyright: Except as otherwise provided, the author of each article in this issue has granted permission for copies of that article to be made for classroom use, provided that: (1) copies are distributed to students at or below cost; (2) the author and journal are identified on each copy; and (3) proper notice of copyright is affixed to each copy. Manuscripts: The Annual Survey invites the submission of unsolicited manuscripts. Text and citations should conform to the 18th edition of A Uniform System of Citation. Please enclose an envelope with return postage if you would like your manuscript returned after consideration. Editorial Office: 110 West 3rd Street, New York, N.Y. 10012 (212) 998-6540 (212) 995-4032 Fax http: //www.law.nyu.edu/pubs/annualsurvey \\server05\productn\n\nys\66-2\front662.txt unknown Seq: 4 12-OCT-10 15:54 iv \\server05\productn\n\nys\66-2\front662.txt unknown Seq: 5 12-OCT-10 15:54 NEW YORK UNIVERSITY ANNUAL SURVEY OF AMERICAN LAW 2009-2010 BOARD OF EDITORS Editor-in-Chief DANIELLE A. KANTOR Managing Editors DAVID K. LUKMIRE ANDREW OSORIO Development Editors Executive Article Editors Senior Articles Editor MICHAEL BLASIE STEPHANIE ARONZON JEANA BISNAR JOACHIM BENO STEINBERG ANTHONY BADARACCO ELIZABETH DONDLINGER CHRISTINA KUHN Note Editors KATHERINE MARSHALL Symposium Editor CLAIRE JAMES JOE RICHIE LAURA COLLINS JAMES A. LONG BENJAMIN A. SILVERMAN NIQUI WINDBERG Article Editors NATHANIEL H. BENFORADO ADRIAN C. GRIFFITHS DANIEL R. MARX ALFRED J. CHIANESE ALISON A. HAGGERTY CHRISTOPHER C. MCGUIRE DAVID W. EARLEY ROBERT M. HILTON MARK RIZIK ADAM B. FELSENTHAL DAVID P. IOZZI KENNETH J. SANOCKI NICOLE PIECHOWSKI FIELD FLORIN VALERIU IVAN MICHAEL R. SARINSKY NICHOLAS M. FOGG JOSHUA A. KASS CASEY E. SCHWARZ RYAN L. FORD KATHARINE M. LADD NATASHA SMALKY NICHOLAS R. FUNG JOANNE LEE JANINE M. TIEN MATTHEW A. GLICK ANDREW LICHTMAN CAROLINE W. WALDNER DAVID L. GOODWIN TRACY A. LUNDQUIST SHAWN MALHOTRA DAVID M. MARCUS Staff Editors JONAH ABRAMOWITZ HAYES HOLDERNESS JR.PHILIP N. PILMAR THOMAS ADAMS ANDREW S. JACOBS GIULIA STELLA PREVITI BRANDON ADONI ELISA KAO RYAN G. REIFFERT LINA BENSMAN MATTHEW M. KARLAN JARED ROSCOE ALLA BERENSHTEYN JOSH LEVY SARAH M. SCHOENBACH ALEXANDER S. BIRKHOLD ED LINTZ JOSH SIMPSON MATT BROWN ANDY LUTES ANDREW R. SPERL KATHERINE COMEAU JAIME A. MADELL DARRYL G. STEIN CLAIRE DECAMPO STEPHEN S. MAR ROBERT TAYLOR ISABELLE KINSOLVING FARRAR PAUL MILETIC JAMES M. THOMPSON EVA GARDNER ALEXANDER MINDLIN NEIL J. TOOMEY QAIS GHAFARY ALEXANDRA MITTER LERON THUMIM MATTHEW D. GIBBS MICHAEL MIX JASON VINOKUR COLIN GILLESPIE MICHAEL NADLER TIMES WANG JESSICA GREENBAUM NICOLLE NONKEN LENNOX WHITE JASON B. GUMER DAN PASSESER MADELYN K. WHITE Faculty Advisor HARRY FIRST \\server05\productn\n\nys\66-2\front662.txt unknown Seq: 6 12-OCT-10 15:54 vi \\server05\productn\n\nys\66-2\front662.txt unknown Seq: 7 12-OCT-10 15:54 SUMMARY OF CONTENTS ARTICLES CHALLENGES PRESENTED TO MILITARY LAWYERS REPRESENTING DETAINEES IN THE WAR ON TERRORISM Matthew Ivey 211 THE VETERANS’ JUDICIAL REVIEW ACT TWENTY YEARS LATER: CONFRONTING THE NEW COMPLEXITIES OF THE VETERANS BENEFITS SYSTEM James D. Ridgway 251 NOTES 100% CAPITALIST, 90% OF THE TIME: THE 20 DAY SHORT-SALE BAN Jeana Bisnar 299 SUBSTANTIVE CONSOLIDATION AND PARTIES’ INCENTIVES IN CHAPTER 11 PROCEEDINGS Scott R. Bowling 341 CAN THE COURTS TAME THE COMMUNICATIONS DECENCY ACT?: THE REVERBERATIONS OF ZERAN V. AMERICA ONLINE David Lukmire 371 \\server05\productn\n\nys\66-2\front662.txt unknown Seq: 8 12-OCT-10 15:54 viii \\server05\productn\N\NYS\66-2\NYS201.txt unknown Seq: 1 12-OCT-10 16:07 CHALLENGES PRESENTED TO MILITARY LAWYERS REPRESENTING DETAINEES IN THE WAR ON TERRORISM MATTHEW IVEY* INTRODUCTION On September 11, 2001, four planes were hijacked and used in attacks on the Pentagon and World Trade Center.1 In the days that followed, Congress authorized the use of military force against “those nations, organizations, or persons” determined to be respon- sible for these terrorist acts.2 In early October 2001, the United States and its allies launched missile and air strikes against the Taliban and al Qaeda in Afghanistan.3 In the ensuing fighting on the ground, many prisoners were captured and approximately 700 persons were sent to the facilities at Guantanamo Bay, some arriv- ing as early as January 11, 2002.4 In a Military Order dated November 13, 2001, President George W. Bush announced that military commissions would ad- minister trials of detainees captured in Iraq or Afghanistan who were believed to have “engaged in, aided or abetted, or conspired * Matthew Ivey is a Lieutenant in the United States Navy. The views expressed in this paper are the Author’s own. They do not necessarily represent the views of the Department of Defense, the United States Navy, or any of its components. The Author would like to thank Professor Frank R. Herrmann, S.J., for his guidance and mentorship on this project. The Author would also like to thank military prosecutors and defense lawyers for their assistance in researching this project, especially Lieutenant Colonel Colby C. Vokey, United States Marine Corps (retired). Finally, the Author would like to thank the staff of the New York University Annual Survey of American Law for their outstanding editorial assistance, especially Dominique Windberg and Daniel Passeser. 1. NAT’L COMM’NON TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMM’N REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES (2003). 2. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified as amended in 50 U.S.C. §§ 1541–48 (2006)) [hereinafter AUMF]. 3. Jason Straziuso, U.S. Plans for Longer Stay in Afghanistan, CHI. TRIB., Oct. 7, 2007, at 16. 4. See Carol D. Leonnig & Julie Tate, Some at Guantanamo Mark Five Years in Limbo; Big Questions About Low-Profile Inmates, WASH. POST, Jan. 16, 2007, at A1; Steve Vogel, U.S. Takes Hooded, Shackled Detainees to Cuba, WASH. POST, Jan. 11, 2002, at A10. 211 \\server05\productn\N\NYS\66-2\NYS201.txt unknown Seq: 2 12-OCT-10 16:07 212 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 66:211 to commit, acts of international terrorism.”5 Pursuant to this order, Secretary of Defense Donald Rumsfeld established procedures for military commissions.6 Thus, the United States has since faced a need to develop rules for military commissions that allow the na- tion to protect its security while adhering to international standards of human rights and respect for due process. Since their inception, these military commissions have been subject to controversy and legal challenges.7 President Barack Obama described the events of the past seven years at Guantanamo Bay as a “sad chapter in American history” and promised to close down the prison.8 On January 21, 2009, President Obama ordered the suspension of all prosecutions of Guantanamo Bay detainees for 120 days to allow his administration to review all detainee cases.9 Shortly thereafter, President Obama issued an executive order mandating the closure of Guantanamo Bay within a year.10 Al- though President Obama has called for review of all detainee files and for the closure of the facility within the year,11 his plans have seen some setbacks. Many of the detainees have incomplete or nonexistent files.12 Further, although some detainees have been cleared for release, there has been difficulty in the repatriation pro- cess in parent countries.13 Undoubtedly, the U.S. government will continue to have to make difficult decisions regarding the legal process afforded to detainees at Guantanamo. Of the 700 detain- 5. Military Order of Nov. 13, 2001, Detention, Treatment, and Trial of Cer- tain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001). 6. See Department of Defense Military Commission Order No. 1 (Mar. 21, 2002), available at http://www.defense.gov/news/Mar2002/d20020321ord.pdf. 7. See, e.g., Mary Cheh, Should Lawyers Participate in Rigged Systems? The Case of the Military Commissions, 1 J. NAT’L SEC. L. & POL’Y 375, 379 (2005); Joshua L. Dratel, Ethical Issues in Defending a Terrorism Case: How Secrecy and Security Impair the Defense of a Terrorism Case, 2 CARDOZO PUB.
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