Guantanamo Defense Clinic
By Frances Presma/Photos: Don Hamerman
Guantanamo Defense Clinic Offers Unique Opportunity For Duke Law Students
At Guantanamo Naval Base in Cuba, ten detainees have cases pending before military commissions. The charges levied against them vary, but include conspiracy to commit attacks on civilians, murder, and terrorism. The small team of military lawyers charged with defending these detainees is being assisted by a platoon of Duke Law students, supervised by Professor Madeline Morris who directs the School’s new Guantanamo Defense Clinic.
“There is no case law pertaining to these particular military commissions and very little U.S. case law on military commissions at all,” says Morris, who also teaches the Clinic’s classroom component. “They have unclear procedures, based on orders and instructions that can’t possibly cover all of the complex legal issues involved, and the military commissions will utilize a very porous mix of federal, military, and international law. For all those reasons, assisting the military defense team represents a spectacular research opportunity for our students. They are learning the substance and methodology of these bodies of law, as well as learning the indispensable skill of utilizing diverse bodies of law in the litigation of one case.”
The Law School established the Guantanamo Defense Clinic in October 2005, by special arrangement between the chief defense counsel for the detainees, Col. Dwight Sullivan, USMCR, Office of Military Commissions, Department of Defense, and Morris, an expert in international and humanitarian law, who also serves as a legal adviser to Sullivan in her personal capacity. She previously directed the Law School’s clinical programs in support of the Special Court for Sierra Leone.
“Our students also have tremendous scope for original legal thought,” Morris says. “Those who began work last semester have already devised novel theories which have been aggressively adopted by the chief defense counsel and incorporated into briefs. Given the nature of this enterprise, a critical part of what the students are doing is providing original legal analysis and argumentation based on the diverse yet scant sources of applicable law.”
The Clinic grew from six students in the fall to its current enrollment of 24, both to meet client need and accommodate student demand. Students are divided into five teams, with each assigned to a specific case. Team members, under Morris’ supervision, review and comment on each other’s work on assignments from the chief defense counsel and from the lead counsel in their particular case, and collaborate on briefs and memos.
Major Tom Fleener, a member of the defense team whose client is alleged al Qaeda propagandist Ali Hamza Ahmed Sulayman Al Bahlul, calls Duke Law students “the perfect resource” for the defense.
“This system of justice is really being made up as it goes, and it is hard to be an established practitioner, trying to practice when the rules aren’t set,” says Fleener, an Army reservist, former judge advocate, and a federal public defender in civilian life. “As a lawyer, you learn what the rules are and work within the system. Because they aren’t lawyers yet – they aren’t indoctrinated into the system – the students can be creative, free thinkers coming up with truly novel ideas.”
Fleener also calls the students’ work “a saving grace” for the military defense team which is sorely in need of resources.
“At least 17 prosecutors, and numerous analysts and paralegals are assigned to the prosecution for the cases currently before the commissions. On the defense side we have four defense
attorneys permanently assigned to the Office of the Chief Defense Counsel and a couple of military paralegals.
Our students...have tremendous scope for original legal thought. Given the nature of this enterprise, a critical part of what the students are doing is providing original legal analysis and argumentation based on the diverse yet scant sources of applicable law.
- Professor Madeline Morris
“We desperately need assistance analyzing some of the incredibly complex issues that exist in the commission cases,” Fleener says, adding that while the administration’s reasons for establishing “GTMO” as a detention facility and authorizing the commissions may have been sound – “protecting America and gathering intelligence” – the justice system was “an afterthought. The system that is in place is wholly inconsistent with every traditional justice system we’ve ever seen. It’s all new, and it’s very, very difficult to navigate when you have such limited resources.”
Fleener’s own client, Al Bahlul, refuses to cooperate with him, but has had his request to self-represent denied by the commission.
“One of the foundations of our justice system, the Sixth Amendment, is the right to serve as your own voice,” says Fleener. “When it’s modified, it’s done so narrowly, on a case by case basis – usually because the defendant is mentally incompetent, disruptive, or too sick to carry out his own defense. Here it’s just a blanket rule. So the issue is whether you can be forced to represent somebody in a system where not only have they fired you and requested that you not represent them, but where the individual has no right to refuse representation at all.” Fleener met with the full Clinic group as well as members of the team assigned to him on January 18 and 19 at the Law School. Chief Defense Counsel Sullivan, as well as lead counsel for other detainees have also met with the Clinic students at Duke.
“We are expecting to intensify the amount of time that counsel spend here at Duke working directly with their teams,” says Morris. “As the proceedings go forward, students may be asked to travel to ‘GTMO’ in the course of their work.”
Coalter Lathrop ’06 worked with Fleener during the fall semester and is continuing to do so through the spring. He says he “jumped” at the chance to be involved with the Clinic as soon as it was launched in October.
“It’s been both educational and challenging to tackle this unique intersection between legal systems–federal, international, law of war–and the intersection of different court systems, and great to work on real briefs and real memoranda that have real consequences at the end of them.
“But my motivations go beyond that,” adds Lathrop. “We’re a country that stands for a number of things, not the least of which are justice in our legal system, control of the absolute power of our State, and due process. I want to do what I can to make sure that those things are in fact true for [the detainees], whether they are good or bad people, and have that apparent to the world. It’s a real tragedy if this military commission process isn’t carried out in a way that we can defend.”
Those sentiments are echoed by other Clinic students who have been asked by members of the media why they would put time and effort into defending alleged terrorists.
“We are not defending any acts the detainees are alleged to have done, but their rights. The system must be fair, and should be one that will be admirable both now and throughout history. The precedential importance of the commissions is enormous; therefore, the importance of getting the system right cannot be overstated,” says Audry Casusol ’06, who was enrolled in the Clinic in the fall and is now is coordinating student research as its teaching assistant.
“I believe the international and domestic questions that emanate out of the United States’ decision to detain suspected terrorists in Guantanamo Bay are incredibly important,” adds David Thompson, another of the original six Clinic students. “Not only do these issues have bearing on American and global security, but they also have tremendous bearing on the character of American jurisprudence.”
Dean Katharine Bartlett calls the Guantanamo Defense Clinic a great opportunity for students and a good fit with one of the School’s strengths. “We are without doubt one of the strongest law schools in the country in the area of national security law, and we are on our way to being one of the strongest clinical schools as well. This is a unique opportunity for Duke, and I am thrilled that Madeline Morris, with her expertise in both criminal law and human rights, was positioned to be able to take advantage of it.”