Clinics

Guantanamo Defense Clinic "Assisting the military lawyers…represents a spectacular research opportunity for students. They are learning the substance and methodology of these bodies of law…[and] the indispensable skill of utilizing diverse bodies of law."
Professor Madeline Morris, Clinic Director

Guantanamo Defense Clinic

Since it was established in 2005 under the direction of Professor Madeline Morris, Duke's Guantanamo Defense Clinic has played a key role in framing legal challenges to the Military Commissions Act of 2006 and other laws governing Guantanamo detentions and military commission proceedings. An expert on international criminal law and the law of war, Morris served as adviser to the chief defense counsel in 2005 and, from 2006 to 2008, as chief counsel to the Office of the Chief Defense Counsel for Military Commissions. Building on her personal involvement with military commission litigation, Morris has been able to involve students in groundbreaking counterterrorism litigation and policy development.

The clinic has worked intensively in the legislative arena, both during the negotiation of the Military Commissions Act and in designing counterterrorism law and policy for the "post-Guantanamo" era. Students' theories, research, and writings have found their way into briefs in proceedings at all levels of the Guantanamo litigation, including the Supreme Court of the United States, in the cases of Hamdan v. Rumsfeld and Boumediene v. Bush.

Four years of groundbreaking litigation

Duke Law students work closely with lead counsel representing defendants charged for trial at Guantanamo, crafting legal theories, analyzing case strategies, and preparing briefs, motions, writ petitions, and other filings for military commission and federal court proceedings. Governed by new and untested statutes including the Detainee Treatment Act of 2005 and Military Commissions Act of 2006, each case poses numerous original and weighty issues.

The clinic has worked with defense counsel on 10 of the military commission cases, including all four of those that have been concluded since the initiation of military commissions in 2001 -- U.S. v. Hamdan, U.S. v. Hicks, and U.S. v. al Bahlul and U.S. v. Jawad. Current clinic cases include U.S. v. Khalid Sheik Mohammed et al, the joint prosecution of five detainees charged with masterminding and aiding the 9/11 attacks. The work of the clinic -- and of Morris, who served as an expert witness -- was instrumental in achieving the August 2009 release and repatriation to Afghanistan of Mohammed Jawad, one of two juveniles charged under the Military Commissions Act.

Crafting sound and sustainable counterterrorism law and policy

While remaining engaged on the litigation front, the clinic is participating in policy and legislative processes defining U.S. posture on counterterrorism and detainee affairs. During the spring 2009 semester, clinic students and research fellows helped Morris produce a comprehensive legal framework to govern counterterrorism detention by the United States.

The proposed Counterterrorism Detention, Treatment, and Release Act, which is circulating within executive branch agencies and generating bipartisan interest in Congress, presents a legal and procedural framework for the detention of those who would seek to perpetrate catastrophic attack against the United States and who are not appropriate for criminal prosecution.

The draft statute provides the requisite legal bases and procedural framework while upholding constitutional principles, complying with the law of war, and safeguarding against erroneous detention. It is applicable to the disposition of detainees currently held at Guantanamo and, equally, to other instances of counterterrorism detention elsewhere or in the future.