During the 2012-2013 academic year, students in the Guantanamo Defense Clinic have assisted in the representation of Khalid Shaikh Mohammad, the named defendant in the military commission prosecution of the 9/11 attacks, whose case is pending before a military commission at Guantanamo Bay. Among the issues they have encountered: The fact that Mohammad faces the death penalty if convicted and indefinite detention even in the case of an acquittal; unique issues relating to classified information; and the evolving structures and procedures of the military commission system. Supervised by Professor Madeline Morris and Lecturing Fellow Gabriela McQuade ’10, and working closely with Mohammad’s military and civilian defense counsel, students have engaged in rigorous legal research, developed theories of the case, and helped prepare motions, briefs, and memos on a wide range of subjects.
Ethan Blevins ’13 devoted his fall 2012 semester in the clinic to questions that demanded that he first familiarize himself with the structures and grounding principles underlying the military justice system and then extrapolate to relate those principles to the facts of Mohammad’s case within the military commission system. Reviewing and integrating a high volume of factual information involving multiple federal departments and agencies was key to his research, said Blevins.
“It definitely made me a better researcher,” he said. “I learned how to organize research and keep a good record. And I feel that I became a much better writer.”
Jesse Kobernick ’14 said delving into the history of the Classified Information Procedures Act honed his research and analytical skills. “I had to look at a wide variety of legal sources, from statutes, to military codes, to court opinions, to motions currently being filed with the military commission,” he said. “You are constantly questioning how these fit together and what law governs. I had to ask whether a particular approach would work in the military commission system as opposed to civilian trials or courts martial. Doing that kind of ordering was challenging and helpful.”
Seeing military commissions in operation
Since October 2012, when the Guantanamo Defense Clinic was granted observer status by the Office of Military Commissions in the U.S. Department of Defense, clinic students have had the opportunity to travel to Guantanamo Bay Naval Base to see military commissions in action. Read more
“It was very useful to take the research we do in the clinic—delving into legislative history and digging into cases that date back decades—and see how it might actually impact the pre-trial hearings. It brought a lot of our work home to me.”
— Jesse Kobernick ’14 traveled to Guantanamo Naval Base in October to observe hearings related to presumptive classification of information relating to statements of the five alleged 9/11 co-conspirators, including Khalid Shaikh Mohammad, who are being jointly tried
A unique academic experience
Nir Shnaiderman LLM ’11, a veteran Israeli prosecutor who is currently pursuing his SJD at Duke Law, says his LLM semester in the Guantanamo Defense Clinic offered him a unique legal experience.
“For more than a decade I have practiced international criminal law criminal law that has to do with terrorism, criminal law that has to do with national security offenses – as a prosecutor. In the Guantanamo Defense Clinic, I had a chance to see things from the other side for the first time. It was really interesting to deal with the legal questions from the other side, trying to challenge the system, to challenge the government, and trying to convince the court—the military commission judge—that a specific statute or section or provision of the Military Commissions Act is not constitutional and should be repealed or abrogated. This is something that I had never done before, and it was very exciting and interesting.”