Camp X-Ray: U.S. soldiers escort Guantánamo detainee

© Reuters/CORBIS

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.