Student Experience
Students work closely with lead military and civilian defense counsel for Guantanamo detainees right from the start of their clinic experience; each semester begins with a two-day "stand-down," which involves an orientation, case briefing, and strategy session with defense counsel. They become full partners in the defense team, helping craft legal theories and litigation strategy, and preparing filings for military commissions and federal court proceedings.
This work offers students opportunities for rigorous research and analysis and necessitates the utilization of diverse bodies of law, including federal, military, and international law.
Students have worked on issues relating to combatant status, definitions of "armed conflict," torture and interrogation, personal and subject-matter jurisdiction, pro se representation, handling of classified evidence, and the core structure of the Constitution's separation of powers. Their 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.
Working on Boumediene v. Bush
In the fall of 2007, lawyers representing Lakdhar Boumediene in his habeas corpus petition to the Supreme Court called on Professor Madeline Morris for consultation on a military law issue. Dennis Schmelzer JD/LLM '09, a Guantanamo Defense Clinic student whom Morris assigned to work directly with the habeas counsel, developed an original theory based on an Army regulation pertaining to combatant status determination. His theory was incorporated into the brief for the petitioner in Boumediene v. Bush before the U.S. Supreme Court. Part of his theory, Schmelzer said, relied on "flaws" in the memo promulgated by former Deputy Secretary of Defense Paul Wolfowitz establishing combatant status review tribunals.
"It meant a lot to hear from the lawyers that, 'We've read that [Wolfowitz] memo 40 times and never picked out that line,'" he says. "It shows how many legal discoveries really can be that basic and how well prepared we can be already, as students, to help out."
While working in Brussels for the U.S. mission to the European Union prior to coming to Duke, Schmelzer heard then-U.S. State Department Legal Adviser John Bellinger III make persuasive arguments in favor of the detention and trial of detainees in the war on terror. He signed up for the Guantanamo Defense Clinic as a 2L after he heard Morris challenge Bellinger on some of those points during the adviser's 2006 visit to Duke Law.
"I thought, if anything, I could learn what the other side is and how it's argued," recalls Schmelzer, who describes himself as "leaning more to the right, normally." The clinic changed his view, he says, and helped him realize that the issues at the core of the Guantanamo debate defy partisan characterizations. "That an objective, independent decision-maker is necessary to restrain an executive is not a right or left issue but a systemic issue," he says.
Most significant to Schmelzer, who continued as an advanced clinic student through the fall 2008 semester, is the rigorous and creative legal inquiry students can undertake in the course of their work.
