Real Cases. Real Experience.
Clinical faculty for the National Security & Human Rights Clinic, left to right: Derek Jinks, Kristine Huskey, Elizabeth Hardy, and Scott Sullivan
If the new National Security & Human Rights Clinic at UT Law adopted a slogan, it might borrow the closing phrase from the Pledge of Allegiance—“With liberty and justice for all.”
The Law School launched its newest clinic at the beginning of this school year. Through practical and classroom experience, professors and students work through the intricate, highly charged legal issues surrounding the war on terrorism. The twenty students enrolled in the National Security & Human Rights Clinic this fall are teaming up with professors on an array of cases and projects that include preparing appellate briefs challenging the legality of the Detainee Treatment Act and the Military Commissions Act; directly representing some of the more than 300 “enemy combatants” detained at the U.S. military base at Guantánamo Bay, Cuba; and assembling briefs and other documents in cases related to the war on terrorism.
On December 5, 2007, the United States Supreme Court will
hear oral arguments in the consolidated cases of Al Odah
et al. At the heart of the litigation are two questions:
are Guantánamo detainees entitled to due process under United
States law and the Geneva Conventions, and does the Military
Commissions Act validly strip courts of jurisdiction over
Detainees’ habeas corpus petitions?
At the heart of the litigation are two questions: are Guantánamo detainees entitled to due process under United States law and the Geneva Conventions, and does the Military Commissions Act validly strip courts of jurisdiction over detainees’ habeas corpus petitions?
The Military Commissions Act was authorized last year by Congress in response to the Supreme Court’s ruling last year in Hamdan v. Rumsfeld, which declared that military commissions established to try Guantánamo detainees violated the Geneva Conventions. In this act, Congress not only authorized the President to conduct trials by military commission, but also stripped federal courts of jurisdiction to entertain petitions for habeas corpus from detainees held at Guantánamo.
UT Law students, working under the supervision of Derek Jinks, the Marrs McLean Professor in Law, drafted the judicial enforceability of the Geneva Conventions (international law) argument that will be included in the Al Odah litigation.
Meghan McCaffrey, Shane Sanders, Carter Thompson, and Todd Bellaire meet to discuss the representation of their clients.
Aron Isrealite (front) and Kevin Little
Shane Sanders (front), Carter Thompson and Todd Bellaire
“In all these cases, the government is arguing that the Geneva Conventions aren’t enforceable in U.S. courts,” Jinks said. “Congress arguably endorsed this view in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. But the problem with this legislation is that Congress isn’t changing the relevant law, but is rather instructing the courts to ignore the law under certain circumstances.”
Advocates on both sides hope that this litigation will establish what the laws say about the enforcement of treaties and habeas corpus rights.
“The challenge we faced was building an argument that the Geneva Conventions are enforceable, even with the new statutes,” Jinks continued. “We did, and that argument will be heard before the Supreme Court. In the process, we discovered that not only did UT Law have the resources to build a legal clinic around these issues, but that there was also overwhelming student interest in working on these types of projects.”
Jinks, an expert on international law, joined the Law School in 2005. Early on, he and a handful of students co-wrote an amicus brief he submitted in a Guantánamo detainee case. “That sparked students’ interest for even more projects tied to international law and human rights,” Jinks said. “Students were willing to work on the case without earning course credit, and their efforts led to the creation of a directed-study and research assistant program centered on a cluster of detainee-related legal issues.”
Before returning to Austin, where he earned his bachelor’s degree from the University of Texas in 1991, Jinks served on the law faculties at Harvard University, Arizona State University, the University of Chicago, Saint Louis University, and the University of Richmond. Additionally, he was an attorney in the prosecutor’s office of the International Criminal Tribunal for the former Yugoslavia, a senior legal adviser and U.N. representative for the South Asia Human Rights Documentation Centre in India, and a delegate for the International Service for Human Rights at a conference aimed at establishing a permanent International Criminal Court. Since 2006, he has been a member of the U.S. Secretary of State’s Advisory Committee on International Law.
Another force behind establishment of the clinic is Professor Emeritus Jack Ratliff, ’62. “A few years after I retired I started looking around for a way to put my litigation and teaching experience to work in some useful way,” Ratliff said. “I had several conversations with Karen Engle of the Law School’s Rapoport Center, and we decided to pursue the idea of a clinic of some kind in the human rights area. It was at first just a vague notion but, after Derek Jinks got involved, we hit on the idea of taking on detainee clients referred by the Center for Constitutional Rights in New York.”
“We realized that we could represent these detainees,” Ratliff said. “It’s a very difficult process, one with its own set of internal rules, which are quite different from regular litigation. The secrecy rules are particularly challenging. But the students are incredibly motivated—they have remarkable energy.” Ratliff and Jinks were co-teachers of a practicum entitled “The Rule of Law in Wartime” in the fall of 2006. Ratliff’s primary role was to act as lead counsel, advise students, and oversee the preparation of briefs and court filings.
Anh-Thu Nguyen, Ariel Juarez, and David Currie discuss the application of international law to detainees held at Guantánamo Bay.
At the same time, Scott Sullivan arrived at the Law School as part of the Emerging Scholars Program. From his scholarly work on treaty interpretation at the University of Chicago and the European University Institute, to his extensive practical experience representing Guantánamo detainees while he was at the New York firm Allen & Overy (he made more than a dozen trips to the base to meet with clients), Sullivan was uniquely positioned to contribute to the nascent initiative.
Once Jinks and Sullivan realized they both were working on detainee-related law, the professors decided to co-teach a Rule of Law in Wartime course in the spring of 2007. Sullivan brought his Guantánamo clients from Allen & Overy—cases which would contribute significantly to the emerging Al Odah litigation. This semester, Jinks and Sullivan are co-teaching again, this time a course on national security law.
What was then known as the “Rule of Law in Wartime Project” became the National Security & Human Rights Clinic. The Law School recruited Kristine Huskey, ’97, to lead the Clinic. Huskey most recently was practitioner-in-residence in the International Human Rights Law Clinic at American University’s Washington College of Law in Washington DC. She began representing detainees in 2002 while at the Washington DC firm of Shearman & Sterling. One of the cases she worked on was Rasul v. Bush, which went before the U.S. Supreme Court and won the right of the detainees to challenge their detentions in federal court. (While Sullivan was at Allen & Overy, he co-wrote an amicus brief for Rasul.) Today, Huskey is considered one of the country’s foremost authorities on detainee-related law. In fact, one of the cases Huskey handled at Shearman & Sterling is now part of the Clinic’s portfolio. She has visited Guantánamo about a dozen times in her quest to defend detainees—and the rule of law.
“This is not about whether the detainees are terrorists. We have no idea whether they’re terrorists. Maybe they are, maybe they’re not. This representation is about ensuring that they receive some fair process to determine whether they should continue to be detained or be released,” Huskey said.
She supervises students who are representing Guantánamo detainees and are working on other cases and projects connected to national security and human rights. It is the biggest legal clinic at UT Law.
With Huskey aboard, the Law School’s prominence in national security and human rights initiatives has been greatly elevated. “We’ve established a reputation for ourselves as one of the go-to programs on international law-related issues in the war on terror. At times, that feels more like a burden than an opportunity,” Jinks said. “But when we have our heads screwed on straight about it, when we look at it in the right way, I understand that it’s a tremendous opportunity. It’s the blessing and curse of having a good reputation, the blessing and the curse of being relevant.”
Lindsey Stelcen, Tory Lauterbach, and Annelies Lottmann, meet to discuss renditions. Inset: a redacted case file.
Huskey said students in the clinic are honing skills such as collaboration, interviewing, working with experts and the media, drafting, and oral and written advocacy, while also learning about the foundations of international, constitutional, and human rights law.
“We’re talking about an area of law that’s growing rapidly and developing in a very substantial way,” said Sullivan. “The clinic gives students the opportunity to get down into the nitty-gritty of the law, and try to untangle these complicated, substantive questions in court.”
“This isn’t just theoretical. There are men who are waiting for us to figure out what to do,” said Elizabeth Hardy, a 2007 Law School graduate who worked on Guantánamo cases as a student and now is an instructor in the clinic. She underscored the importance of the students’ work: “It’s important for Americans, and students especially, to realize that when we have these challenges to our civil liberties, it’s our duty to make sure we protect them.”
Clinic students are divided into five teams. Two of these teams represent detainees. “They draft motions, work them into final form, and file them,” Huskey said. “We recently filed several motions with the DC Circuit Court of Appeals—students are involved in litigation at the highest levels.”
One such student is Shane Sanders, a third-year law student. He asked to work on the Guantánamo cases that Jinks and Sullivan were juggling last year. “This is one of the most important issues going on in the legal world today. I absolutely love the fact that I’m able to work on it now while I’m in law school,” Sanders said.
Students have had the chance to, among other things, research the ability of courts to enforce self-executing treaties and dig up information for legislation addressing the release and repatriation of detainees. “In this emerging realm of the law,” Hardy said, “students can devise an inventive legal strategy just as easily as a well-seasoned attorney can.”
One team is working closely with Jinks on the various aspects of the Al-Odah litigation, another is working on the legal aspects of rendition. Through the practice of rendition, terrorism suspects are secretly moved to or kept by other countries under the umbrella of U.S. laws. The Central Intelligence Agency and other U.S. agencies operate rendition programs, with some suspects being held at clandestine “black site” prisons in other countries. Huskey said the Clinic is currently working with a DC-based agency to address the problem of rendition and how it can be subject to more judicial oversight.
Annie Depper and Brett Kaufman discuss the protection of classified information in litigation.
Paul Di Blasi (far right)
The final group is described by Huskey as “the wild card team.” Their time is reserved for working on rapidly emerging issues. “These students worked on the Rasul damages case and are currently working with the Office of Military Commissions regarding the use of classified information in war crimes trials,” she said. “We have also started looking into the issue of international philanthropy and the war on terrorism.”
And if Guantánamo shuts down, as some envision it might, then the Clinic likely will concentrate on whatever federally driven alternative arises, such as a national security court or a special terrorist court.
Huskey knows the clinic’s legal positions won’t come without some criticism. In the past, she has received e-mails questioning her defense of Guantánamo detainees and her own patriotism. Both of her parents were in the military—her father fought in Vietnam—and both of her grandfathers fought in WWII, so this is not a subject she takes lightly. Huskey emphasizes that she is working to uphold the founding principles of the United States.
“I don’t think it’s mean-spirited or narrow-minded,” Jinks said of the criticism. “It’s coming from a place that makes perfect sense. But at the same time, it doesn’t relieve us of the responsibility of having to think in a very careful way about how we want to strike this balance between liberty and security. Tipping the scales too far in the direction of security is not the answer. What has happened since 9/11 makes that manifestly clear.”
“However,” Jinks added, “it’s not the right answer to simply say, ‘We have off-the-shelf solutions in our constitutional law. We need not act as though the security environment hasn’t changed at all.’ I think that’s equally a mistake.”
The clinic’s activities shouldn’t amount to a monologue about security or liberty. Instead, the clinic must pursue a dialogue about maintaining equilibrium between those two concepts.
Jinks said the Clinic’s activities shouldn’t amount to a monologue about security or liberty. Instead, the Clinic must pursue a dialogue about maintaining equilibrium between those two concepts.
“I care about these issues very deeply. I know that we’re on the right side of this. And I think, in due course, it will be widely understood that we were on the right side of this,” Jinks said. “As a consequence, we’re going to be better off—we’re going to be safer, we’re going to be freer. We’re going to strike the right balance between these two imperatives of liberty and security.”
This article was written by John Egan, and first published in the Fall 2007 issue of UT Law magazine. Photos by Marsha Miller.