A given: By most Americans' standards, Ali Hamza Ahmad Sulayman al Bahlul is probably a bad guy. To believe that requires only a certain perspective--namely, one that does not favor the bloody imposition of an Islamist theocracy--and a very short leap of faith, barely more than a hop, to span the gap between what al Bahlul admits and what the U.S. Department of Defense alleges.
He concedes that he is a member of Al Qaeda, and he has declared Americans, both soldiers and civilians, his enemies. The U.S. military, meanwhile, alleges that al Bahlul was a confidant of Osama bin Laden himself, training in his camps and sleeping in his guesthouses and producing his propaganda videos. In late 2001, he reputedly worked as a bodyguard for bin Laden. Given all that, if a grunt from the 10th Mountain Division clambering around Afghanistan had put a few rounds into his scrawny frame, no one would have much noticed, except for al Bahlul's wife and kids in his native Yemen and perhaps the White House press office. People, good and bad and indifferent, die on battlefields as a matter of routine.
But al Bahlul was captured. By whom and exactly when and where are not clear--none of those details has been made public--but by early 2002, he was in the custody of the U.S. military and packed off to the naval base at Guantánamo Bay, an extra-territorial spit of sand on the Cuban shore. He has been held there ever since, one of hundreds of foreign nationals accused of being enemy combatants in an undeclared war against an undefined adversary. The only thing exceptional about him is that he is one of the very few Guantánamo detainees (ten as of July) to have been charged with anything--specifically, conspiracy to commit war crimes, a novel indictment that sounds ominous but is, in fact, legally amorphous. He may be innocent of that particular offense, but, still, in the roster of war-on-terror players, most people would probably count him as one of the bad guys.
For two dozen Duke students helping to defend al Bahlul and others through the law school's Guantánamo Defense Clinic, that detail is irrelevant. Take the long view; see history as it unfolds. Al Bahlul might eventually become mildly renowned, at least among a certain niche of lawyers, a precedent of one sort or another to be inked into textbooks and footnoted in briefs, his name shorthand for a piece of legal architecture, like Miranda or Kelo. There will be others immortalized out of Guantánamo, too--a Hamdan and a Hamdi, perhaps a Hicks--yet not for anything they might have done, but for how the scaffolds of the law were shifted and realigned around them, strengthened or weakened under the weight of the cases.
When they began in early 2002, the detentions at Guantánamo Bay raised magnificent issues of law and diplomacy, of international warfare and domestic politics, of how the courts and the Constitution would be tweaked and twisted in waging a war on terror. For almost five years, the White House and the Pentagon and their legions of lawyers have been creating new rules and procedures to contain a supposedly new threat. And with them have come the inevitable questions: Can the president indefinitely detain a foreign national in an offshore prison simply by labeling him an enemy combatant? Can that alleged combatant plead his case in federal court? When? Is the scary-sounding conspiracy to commit war crimes even illegal? More fundamentally, is any of this--the detentions, the definitions, the suspension of international conventions--legal?
It is certainly unprecedented. "We have not tried to carve out a little enclave that sits outside the reach of international law before," says Duke law professor Scott Silliman, who served twenty-five years as a military attorney. "Is what we're doing flying in the face of what we've done historically? The answer is yes."
Few of these questions have yet been definitively answered (though the Supreme Court addressed some of them in late June) and likely won't be for years. Yet since October, students working under Duke law professor Madeline Morris have been helping to frame some of the arguments, assisting the military lawyers who are defending al Bahlul and the others. Their assignment: "Do a ton of research, go out and read twenty cases," as Greg Sergi, who just finished his second year of law school, puts it.
Of course, Sergi could have done a ton of research in, say, an education-law clinic, where there are decades of precedents and reams of case law defining the parameters. In the Guantánamo detentions, though, there are only scraps of treaties and international conventions, remnants of dated military protocols, and fragments of federal doctrine, all of which need to be sorted through and stitched together into a coherent body of law. "And that's what makes it interesting," Sergi says. "Or at least historic."
Yes, that's it, historic. "This will be written about for decades," says Tom Fleener, the Army major representing al Bahlul. "This is so important for our legal history and the makeup of our country. It'll be like the Japanese internment camps, where we'll look back and say, 'Oh my God, I can't believe we did that as a country.' "
A fair and obvious question: If the legal issues surrounding Guantánamo Bay are so historically freighted, why are students tinkering with them?
The answer isn't complicated. For one, lawyers like Fleener--part of a lonely cadre of military men who are defending alleged terrorists--need the help. In the Guantánamo skirmishes, they are badly outgunned. The policy of detaining alleged enemy combatants was set by presidential fiat. The practices that flow from that policy are set by civilians in the White House and the Department of Defense. The prosecutorial team alone has some twenty military attorneys, with a concomitantly enormous support staff. Moreover, whatever rules have been laid down so far are still in flux: Some have been ruled illegal by the Supreme Court, and others can change at the whim of the president or Congress.
To take one example, hundreds of detainees represented by private lawyers, the Center for Constitutional Rights, and other legal-aid groups had filed habeas corpus petitions in federal courts to challenge their incarceration. The decisions were mixed, but, in any case, no one got sprung. Then, in November 2005, with 186 of the cases still pending, Congress severely limited detainees' access to the courts, declaring that they could only appeal the final decision of a military tribunal. In a quick floor vote on the so-called Graham-Levin Amendment--formally known as the Detainee Treatment Act--one of the more promising avenues of defense was obliterated. (Whether Graham-Levin applied retroactively to petitions already filed was among the issues argued before the U.S. Supreme Court in March in Hamdan v. Rumsfeld. Arguments in that case also addressed the more basic questions of whether the president has the authority to establish military commissions, and whether any parts of the Geneva Conventions apply to the detainees.)
Fast forward to June: The Supreme Court in Hamdan v. Rumsfeld said Graham-Levin was not retroactive, meaning those habeas cases already filed are pending again. More important, the Court ruled that the commissions set up to try the ten formally charged with crimes violated both the Constitution and the Geneva Conventions. On the other hand, the Justices, in a 5-3 opinion, specifically said they weren't questioning the government's authority to hold detainees "for the duration of active hostilities." The full impact of that ruling has not yet been gauged.
Against all that--the White House, the Department of Defense, Congress--the Office of the Chief Defense Counsel had, before Duke law students joined the team, only four lawyers and four paralegals to wrestle with numbingly complicated cases. "Military commission law combines the very worst aspects of federal law, combined with international law, combined with military law," Fleener says. "You get sort of this secretive, incestuous nature of military law, combined with some of the harsher aspects of federal law involving access to evidence and discovery and things like that, combined with all the difficult logistical challenges but none of the benefits of international law." Navigating such a maze required more bodies and brains than the military had supplied.
So why Duke? "That's all because of Madeline Morris," says Catinca Tabacaru, who will be entering her third year of law school in the fall.
Professor Morris is an expert on international criminal law, both teaching in the classroom and practicing around the globe: senior legal counsel to the prosecutor in the Special Court of Sierra Leone (for which she also ran a law-school clinic), Advisor on Justice to the President of Rwanda, co-convener of the Inter-African Cooperation on Truth and Justice program. More to the point, she also for several years ran a clinic to assist prosecutors at the International Criminal Tribunal for the former Yugoslavia (ICTY) who were trying Serbian strongman Slobodan Milosevic and other alleged war criminals at The Hague. And she has contacts in the U.S military, including as a consultant and adjunct faculty member of the U.S. Naval Justice School.
With that reputation, she was asked by Colonel Dwight Sullivan, the Marine Corps officer who heads the Guantánamo defense office, to act as an adviser, and the clinic was born. "Madeline has done some excellent work here at Duke long before the Guantánamo clinic," Silliman says. "I suspect we're unique in providing this function. No question she's done a wonderful job, and her students love her."
The Guantánamo Defense Clinic was formed in October with six students, then expanded the following semester to twenty-four, all but one of whom were law students. (David Chick, the Rotary World Peace Fellow in the Sanford Institute of Public Policy's Program in International Development Policy, is the exception, though he was a practicing lawyer in his native Australia.) There is a weekly classroom component, but there is also hands-on lawyering. The students are divided into five teams focusing on specific cases, and defense lawyers--Fleener, Marine Corps Major Michael Mori, and Sullivan--have met both with the full clinic and, more frequently, with their assigned teams. They brainstorm together, and the students do their student tasks, researching laws and procedures and cases, writing briefs and memos, critiquing and collaborating as they go along.
Yet the clinic, because of the nature of Guantánamo, is far from a simple exercise in the mechanics of established law. Morris, her students, and the military lawyers are all helping to untangle an ad hoc set of rules and laws. If Al Qaeda and related terror groups are truly a new kind of enemy and if the precedents of military justice don't delineate a clear path, they still need to be treated under some proper rules. What needs to be sorted out is a "law that's sustainable in a democracy with checks and balances," Morris says. "Being doctrinaire won't help--not by trying to shove them into an existing category, and not by trying to assert that, because no category exists, no rules do or should apply."
Her students, too, recognize the stakes. "It all goes to the same questions of why are they being held, and are the procedures fair?" says Sergi. "The way the system is now set up and the way it now works, you have to have a lot of faith that the president and the military won't abuse the enormous power they have."
Coalter Lathrop '91, J.D. '06 is more blunt. "All these things they said about Saddam Hussein, all these things they said about human-rights-violating regimes around the world--we're doing the exact same thing," he says. "We're a nation of laws. It's not that these guys might not be guilty--it's that this isn't how we prove it. We don't decide these things by presidential fiat." For him, the clinic ultimately comes down to a simple premise: "Let's do this," he says, "because the world is watching."
And that--the magnitude of it all--is also part of the attraction. "You get to be part of something really big," says Tabacaru. She pauses. "Some of the things I know-- it's so cool." She laughs when she says that, a reminder, after she's spent an hour dissecting all manner of complicated issues, that she is still a student. Which gets back to the original question: Why are students, even students handpicked by an acclaimed expert in international law like Morris, tinkering with this stuff?
Because they're as good as anyone else, that's why. "Some people might say, 'Ah, they're law students, they don't have any experience," says Mori, the Marine Corps officer. "But nobody has any experience in this. In the military, we have a saying that sometimes it's easier to teach someone without any experience how to shoot, because they don't have any bad habits."
Fleener agrees. "When you're trying to examine a system that doesn't have any precedent, where there's nothing binding, and everything is essentially being made up, it's so much help having law students involved," he says. "They're not indebted to any particular system. They don't have blinders on. So an issue that would escape us as attorneys, they're able to clue in on and do a much better job of researching than we would.
"Without Duke Law School and Madeline Morris providing students to assist us--well, the odds aren't fair at all, but we would be horribly outnumbered rather than just being really badly outnumbered."
A point that should be apparent but needs to be said anyway: No one at Duke's law school is trying to loose terrorists on the world.
The students are one step removed from any actual suspects, to begin with; their primary client, as it were, is Colonel Sullivan's office. Second, the policy of holding enemy combatants without charge indefinitely likely makes acquittals irrelevant. No one, for instance, believes al Bahlul is going home to Yemen any time soon. "It's heads you win, tails I lose," says Fleener. "If he's convicted, he goes to Guantánamo. If he's acquitted, he goes to Guantánamo. If the military commissions are disbanded, he goes to Guantánamo."
"If you think you're going to get your client off, and your client walks--if that's your measurement of success--yeah, you're going to get frustrated," says Lathrop.
Yet it is a fundamental premise of American jurisprudence that every defendant deserves a vigorous defense, even the serial killers and, arguably, the alleged terrorists held offshore. That's what the clinic helps provide. In their small teams, the students research narrow points of law, drawing from antique military commission rules (the last active commissions were in the 1950s), federal criminal procedure, international laws, anything that might apply. "Think laterally and look broadly," is how Chick describes their mission. "And see if we can find something we can use."
Chick, for instance, is one of four students assisting Major Mori, who is representing David Hicks, the so-called Australian Taliban who was captured by Northern Alliance fighters in Afghanistan in late 2001 and has been held in Guantánamo ever since. He is charged with three crimes, all of which raise complicated questions on their own: conspiracy, which can be construed so broadly as to be virtually undefendable on its face; attempted murder by an unprivileged belligerent, which suggests some belligerents do have a legal right to shoot GIs; and aiding the enemy, which suggests that a non-U.S. citizen has an obligation to shun America's enemies.
Mori, and surely Hicks, would prefer never to face trial. So the team thought laterally, looked broadly. His defense--his gambit, really--was to get out of Guantánamo by using British law and diplomatic precedent. In 2003, after Hicks had been captured, Britain extended citizenship to the children of British women born outside of the United Kingdom. Because Hicks' mother is English, he qualifies. A British court granted his petition over the objections of the government, and an appeals court upheld the decision. It was a smart approach, considering that every other British national had been released from Guantánamo as a diplomatic nicety. In late June, however, the U.K. said it would not press for Hicks' release.
Al Bahlul, meanwhile, is gumming up his proceedings by insisting he wants to represent himself. Any American in his position would correctly consider that a fundamental right guaranteed by the Sixth Amendment. Even despots--Saddam Hussein, Slobodan Milosevic--are allowed to defend themselves.
"Everybody gets to," says Fleener, "except here and in the Star Chamber of the 1600s." Considering al Bahlul was captured by the U.S. military, is being held by the military, and will be tried by a military commission, he's understandably not enthusiastic about the prospect of a military lawyer--a man he considers his enemy, to boot--defending him. But the commission rules require each of the accused to be represented by a military attorney with a security clearance (much of the evidence in these cases is classified).
Not surprisingly, al Bahlul's request was denied. Also not surprisingly, his alternate request to have a Yemeni lawyer--who wouldn't have a U.S. security clearance--defend him also was denied.
To make things more complicated, those denials put Fleener in an ethical dilemma. When he's not on active duty with the Army Reserve, he's a federal public defender in Cheyenne, Wyoming, where, in a similar situation, he would have to step down. Long-established federal law, in other words, seems to be in direct conflict with newly minted military commission rules.
"So how, procedurally, do you get that issue in front of a court other than a military tribunal?" says Lathrop, one of the four students who worked with Fleener until graduating in May. "You've already asked the question in this chain, and the answer's come back no. So how do you get it outside?"
You think creatively, look for an offbeat option. Al Bahlul had no standing in federal court, but there is a mechanism that allows third parties to bring an action on someone else's behalf. "That had some legs, I thought, until Graham-Levin cut them out," Lathrop says. "But that was real lawyering."
(The late-June decision in Hamdan might have remedied both those issues; at the least, it appeared to renew al Bahlul's access to the federal courts.)
In the end, who defends al Bahlul probably won't matter. He intends to boycott his trial, and, as Fleener points out, he'll still be an enemy combatant even if he's acquitted.
But the exercise matters, the lawyers and the students say. Simply making the arguments matters because rules and transparency and fairness matter. "The point is, it's not useless, because you're writing about it, because people will find out about it," Tabacaru says. "If we weren't doing this, everyone would think like most people in this country already think: 'Oh, my God, you're helping those terrorists.' " And it's not like that at all. Almost the opposite, actually: Morris and her students, by helping to defend the Guantánamo detainees, are helping the country figure out how to deal with terrorists, both actual and alleged--and the Hamdan decision validates that effort. "What the Supreme Court has done is really inspiring," says Morris. "It's demonstrated that our system of government really does operate as a system of checks and balances." They're helping, in other words, to define and refine a system that will allow America to still be America.
"It's like a big ball of clay," Lathrop says, "and to get into it, and to be able to say, years later, 'Hey, that's where I poked my finger....'" He trails off, smiles. "I'm not going to be the one making the bowl," he says, "but I'm going to have a hand in it."