PUBLISHED:February 19, 2013

Guantanamo Defense Clinic continues work on complex cases in military commission system

Duke Law School’s Guantanamo Defense Clinic is now in its eighth year of operation, but the issues students encounter are anything but routine.  

In the current academic year, students are providing legal research and support to military defense counsel for the alleged mastermind of the 9/11 attacks, Khalid Shaikh Mohammad, whose case is pending before a military commission at Guantanamo Bay.  The fact that he faces the death penalty if convicted is just one factor that bears on their approach to the case and the relevant law, said Professor Madeline Morris, who directs the clinic.

“This prosecution concerns a defendant who, the administration has explicitly said, will not be released even if acquitted,” she observed.  “That raises a multitude of legal and strategic questions”

The handling of classified information represents another key focus of student research and analysis.

“The relevance of classified information to the case runs in two different directions,” explained Morris who teaches the seminar with Lecturing Fellow Gabriela McQuade ’10.  “There’s a raft of issues relating to the discovery of classified information.  Then there’s the defendant’s potential disclosure of classified information at trial, and the separate question of the defendant’s potential disclosure of classified information outside of the trial context. 

Our work does not offer a demonstration that the Department of Defense is engaged in an abomination.  Quite the reverse.  The students come to understand that the issues are, at every level, complex, and that the military justice system is interesting.  Several have concluded that the JAG Corps would be a good place to work.  They get that in part from the substance of what they do and the issues they deal with, and in part from their interactions with military counsel.”

Professor Madeline Morris   

“With regard to this particular defendant and [the four other] 9/11 defendants who are being tried with him, the government early on took the position that anything they say or might say in the future — any utterance of theirs — can be considered ‘presumptively classified,’ which is a status of communication hitherto unknown to the world,” said Morris.  “The government’s position was that anything these defendants might say has to be treated as top secret until it’s been cleared by a classification agency through unspecified processes and determined not to be classified.  The government has since shown some willingness to retreat from that position, but the matter remains unsettled.  So that’s another issue the students have been dealing with.” 

During the fall semester, students engaged in legal research and developed theories of the case, and then helped prepare motions, briefs, and memos on subjects ranging from specific issues, such as those concerning classified information, to matters concerning the structure of the military commission process itself.  Students will continue to work on matters relating to Mohammad’s defense through the spring semester and beyond.  His case is, Morris noted, still at an early pre-trial stage.

A trove of research, institutional memory

Students’ current work directly benefits from and builds on the efforts of earlier clinic cohorts, said Morris.

“We have so much institutional memory about what has happened in prior cases and within the commissions.  Beyond that, there’s the enormous amount of research that has been done on historical precursors to these commissions and historical precursors to the law that is being applied.”

“Legal concepts that, at the start of the clinic, teams of students spent months working on we can now present at the clinic training day as baseline information  about how military commissions work,” said McQuade, a clinic alumna who subsequently assisted lawyers in the Office of Military Commissions Defense at the Department of Defense with the representation of Guantanamo detainees Omar Khadr and Abd Al Rahim Hussayn Muhammad Al Nashiri.  “We keep adding to this foundation of research and now have a body of material we can rely on.”

“We have a valuable body of solid research and analysis,” added Morris.  “We’ve thought through a lot of areas where there isn’t settled law and analyzed what the possibilities are and what arguments can be made.” Institutional memory built over the clinic’s long relationship with the Office of Military Commissions Defense also contributes to the comprehensiveness and efficiency of students’ research and analysis.

“Not infrequently, we’ll tell a student who is working on an issue to call an attorney who rotated out of military commissions five years ago, but we know he filed a motion on a related issue and would have thought through a particular avenue,” she said.  “They’re always happy to take students’ calls as they were helped by clinic students at the time.”

Lessons learned

Morris remains convinced of the pedagogical value of student engagement with military commissions, beyond the opportunity to learn about and interact with the different forms and structures of federal military and international law that are in continual play. 

“This work highlights the importance of integrity in governmental structures and governmental processes, although it offers sort of a mixed lesson,” she said.  “Students get a view of some of the best and the worst of what the U.S. justice system, including the military justice system, has to offer.  A lot is wrong with the way the military commission system works.  But at the same time, it’s remarkable that there are levers available to challenge what’s wrong — not always successfully and not always quickly, but meaningfully.” 

Rigorous analysis of these novel legal issues is key, she said.  “Students quickly recognize that they have to probe beyond the surface in the sense that either there isn’t [applicable] law, or the legal answer that would seem to be rendered by preexisting cases is just not suitable to the circumstances, or rules crafted pursuant to the military commissions’ authorizing legislation may be inconsistent with that legislation and, in any case, may not be binding — that is, they are only binding unless you challenge them.  Students come to realize that you need to challenge the rules in terms of the legislation — the Military Commissions Act of 2009 — challenge the legislation in terms of the Constitution, and challenge constitutional decisions previously made in a district or appellate court or in the Supreme Court.”  Because the main Supreme Court precedent on military commissions, Ex parte Quirin (1942), represented “an aberrational decision-making process” by the Court, “it’s especially important to get students to be willing to challenge all the way up the line and without any sacred body of opinions being off limits,” she said. 

“Students engage in a process of rigorous questioning, demanding real clarity in their own analyses and of judicial opinions.  You keep asking: ‘What are they actually saying?  What’s being papered over here?  What contradictions are there?’  Is something being said in an unclear way?  And then next question is ‘why?’  There’s a precision of thinking that, when employed, usually generates the next question.  Students gain confidence both in their ability to do that and in the legitimacy of doing so.”

“It requires a granular approach,” said McQuade.  “A student’s first memo is often quite broad.  Then, by the end of the semester they’re able to say, ‘This is precisely what is happening; this is why; and here are the ramifications for the case.   Throughout the semester they essentially develop three questions into 300 and then consolidate that thinking and research into a cogent analysis.  That’s the level of intensity and focus and care that is cultivated across the semester.”

Ethan Blevins ’13, devoted his fall 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 code, 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 this would work in the military commission system as opposed to civilian trials or courts martial.  Doing that kind of ordering was challenging and helpful.”

Kobernick had the extraordinary opportunity, along with classmate Julie Coleman ’14, to observe hearings at Guantanamo over his fall break, after the Department of Defense granted the clinic observer status.  This semester, one student traveled to Guantanamo in January, two are scheduled to go in February, and other trips will be scheduled as hearings are docketed.

“I was able to hear counsel argue and see how the judge responded to ideas and how the government rebutted them, and that was extremely helpful,” he said.  “My clinic work ceased to be an esoteric exercise.  Afterwards, when I looked at issues, I asked how [my arguments] would help a motion to counter practices being put in place.”

While the students are acquiring skills through their clinic research, their work is critically important to Mohammad’s defense team, said U.S. Marine Corps Major Derek Poteet, Mohammad’s lead defense counsel from the Office of Military Commissions Defense.

“Given the magnitude and the significance of this highly political case, the defense has been grotesquely under-resourced, especially compared to the prosecution,” said Poteet.  “The caliber of the students’ work under the guidance of an international law scholar like Professor Morris has been exceptional and has been of great help.” 

The benefit cuts both ways, as students clearly benefit from their interactions throughout the semester with highly accomplished military advocates; Coleman, for example, has chosen to spend her 2L summer working in the JAG Corps as a result.  And the fact that every clinic cohort includes students who plan or subsequently choose careers in the JAG Corps offers a testament, Morris said, to the strength of the students, the strength of the clinic, and the high level of professionalism of the military attorneys with whom students engage. 

“Our work does not offer a demonstration that the Department of Defense is engaged in an abomination.  Quite the reverse,” said Morris.  “The students come to understand that the issues are, at every level, complex, and that the military justice system is interesting.  Several have concluded that the JAG Corps would be a good place to work.  They get that in part from the substance of what they do and the issues they deal with, and in part from their interactions with military counsel.”