"Practicing Justice": Update

Duke Magzine cover from July/August 2006

In 2006, when Duke Magazine checked in with the law school's Guantánamo Defense Clinic, students were busily researching and filing briefs and generally providing assistance to the Defense Department's Office of the Chief Defense Counsel (OCDC).

Less than a year in, the clinic had already proven itself indispensable to the military lawyers charged with defending alleged terrorists being held at Guantánamo Bay.

But owing to quick turnover in the OCDC, the clinic, once a fountain of youth, has become a font of institutional knowledge. Its director, law professor Madeline Morris, who agreed early in 2006 to become chief counsel to the OCDC pro bono, is now the senior member of the defense team. And while students graduate each year, the thorough work they do is preserved and can be drawn upon whenever the need arises, which, in the messy and quickly changing world of military-commission law, is often.

Many of the clinic's alumni who've since moved on to jobs in firms around the country remain involved in deliberations about defense strategies, ready to take calls from OCDC lawyers and provide advice. Amy Blackwood J.D. '07, an associate at Keller and Heckman in Washington, has initiated a pro bono Guantánamo defense project at her firm.

For current students, the caseload is as big as ever. In May, the Department of Defense referred five detainees charged in connection with 9/11 to the military commissions. Four have declined to be represented, so the clinic will focus its efforts on the fifth. And in June, the Supreme Court ruled, in Boumediene v. Bush, that detainees in Guantánamo have the right to habeas corpus—in other words, they can challenge their detentions in the U.S. court system. Students are already working on habeas petitions for their clients.

But as with previous cases involving detainees, Boumediene may raise more questions than it answers. During a panel discussion at the law school soon after the ruling, Morris listed just a few questions that courts haven't answered but will likely have to in the future: "Is there a war on? If there's not a war on, should we let everyone go? What's a war? Is it an international armed conflict? If we don't have to let everyone go, do we have to charge them criminally? Is there some other basis for detention?"

With the slogan "Close Guantánamo" echoing through political corridors, Morris says, many of these questions will be cast in even greater relief, and the need for strong leaders working to find answers—through the courts, but also through the legislative process—will only increase.

To that end, she recently submitted a proposal to broaden the clinic's work to include a "Program on Counterterrorism and the Rule of Law," an expert working group that would study counterterrorism law and make policy suggestions. She's also working with a group of clinic alumni on a book, slated to be released by Oxford Press in 2009. Tentatively titled Terror and Tyranny: Preventative Detention in the Age of Jihad, it will apply her work with the commissions, as well as academic research, in exploring many of these same issues.

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