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Duke Law School’s Guantanamo Defense Clinic has been granted observer status by the Office of Military Commissions in the U.S. Department of Defense.  As a result, some clinic students are getting the chance to see military commissions in action. 

Jesse Kobernick ’14 and Julie Coleman ’14 were the first to do so, spending their October study break observing hearings at Guantanamo Naval Base.  In the spring 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.

“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,” said Kobernick, who observed 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.  The relative informality of the proceeding surprised him, he added.  “I thought processes would be highly structured, but instead there seemed to be an ongoing discussion between the attorneys and the judge as they figured out how they were going to proceed.  The judge wanted to give everyone a chance to speak on the motions, [so] it was slow and painstaking.” 

Coleman observed a hearing on a motion brought on behalf of the accused U.S.S. Cole bomber, Abd al-Rahim al-Nashiri, whose defense team received assistance, in past academic years, from clinic students.  She described the atmosphere at the section known as “Camp Justice” as surreal.

“To get into the courtroom there were three security checks and you could bring in paper, but not pens.  They provided pens once you were in,” said Coleman who said the opportunity to work in the Guantanamo clinic clinched her decision to attend law school at Duke.  “The viewing gallery was behind a triple pane of glass.  We could see everything happening live, but the audio was on a delay.  If anything classified or close to classified came up, it was muted.  And all photos, even of the courthouse exterior, were banned.” 

“Being on the ground is always different from working on memos or motions here,” said Lecturing Fellow Gabriela McQuade ’10, who co-teaches the clinic along with Professor Madeline Morris.  “It's strategically beneficial for students to see how the hearings are working, what kinds of things the judges are doing and responding to.”

Kobernick added that he found it enlightening to interact with other observers, such as officials from NGOs and journalists from across the political spectrum.  “They have been steeped in the commissions and have a lot of knowledge about the process.  It was useful to watch the hearings with them and talk to them about their observations.”  

The clinic gained observer status after demonstrating its “actual, traceable, substantive contributions” to the military commission cases and process through a review of a dossier of faculty and student research and writing, said McQuade. 

“Gaining observer status represents recognition of the longstanding and extensive relationship the clinic has had with the military commission system and a nod to the fact that what we are contributing is valuable,” she said.  “Our ability to reach the students and teach them about the law of war, military commissions, international law and U.S. criminal law is important, and our product that is used by the defense attorneys in the military commissions also has worth.  So we were excited to have observer status granted as an affirmation of that work.”