Justice in the Balance

Creighton's Watts Provides Expert Testimony at Guantanamo

Creighton law professor Sean Watts, JD, an expert in international criminal law, served as a witness for the defense on the rules of armed conflict in international law last December at Guantanamo. Read more here.

Justice in the Balance

In representing detainees at Guantanamo, Creighton law alumnus and students seek to uphold the rule of law

By Adam Klinker

It’s a few days before Thanksgiving last year and U.S. Marine Corps Maj. Jason Wareham, JD’07, is sitting in yet another Beltway traffic jam. He is fresh off a two-week stay at Camp Justice — the little postage stamp of American soil on the American postcard that is Guantanamo Bay, Cuba — where five defendants, accused of masterminding the terrorist attacks of Sept. 11, 2001, are being detained and tried in what is described by the government as the largest murder case in American history.

Wareham is on the defense team for one of the men accused in the 9/11 plot, Ammar al Baluchi, and he is called to Guantanamo regularly for hearings and meetings with his client.

“Like a lot of people, I didn’t know much about the military commissions until I was assigned to them,” says Wareham, a Creighton University School of Law alumnus who began work with the commissions in the spring
of 2016.

“But like most people who familiarize themselves with it, it’s clear that this is one of the most important legal battles going on in the U.S. today,” he says, adding that his views do not reflect the views of the Department of Defense, the United States government, or any agency or instrumentality thereof. “Anything that happens out of this will have a massive and lasting impact on the entire federal court system. It’s probably the biggest rule-of-law knife fight in history.”

It’s a fight that many in the U.S. and abroad have left to a small but dedicated cadre of both military and civilian lawyers who are, in the minds of many, defending the indefensible: a group of men who stand accused of masterminding the deaths of thousands of people in events that have served to galvanize American patriotism and alter the nation’s politics in the profoundest ways since the Great Depression and World War II.

All the more reason, say Wareham and a group of Creighton law students who are part of a joint legal and governmental education program, to provide that defense.

“In the end, it’s not just that you’re defending the accused,” says Amber Foley, BA’15, a third-year student in the law school’s Government Organization and Leadership (GOAL) program, which has become a pipeline of sorts for Creighton students to work on the defense teams of the Guantanamo detainees. “You’re defending the Constitution, where that right to counsel is written. In order for there to be justice for all, that zealous advocacy on behalf of your client — no matter what they’re accused of — is part of it. And the transparency of a legal proceeding is not only for the client. It’s for the American public and international community to see that fair procedures should be at work.”

A sergeant and a military police officer in the U.S. Army, Anna Wright, MS’15, JD’15, has seen and known intimately the workings of military justice. After a deployment in 2011, she decided that she wanted to go to law school and take up work as a military attorney for the Department of Defense. Creighton’s GOAL program seemed like the best way to make that happen.

Students in the program spend the first semester of their third year of law school living in Washington, D.C., and participating in a full-time externship with a federal agency or congressional committee or office. Students have worked at the Department of State, Department of Justice, the Senate and the National Mediation Service, among other agencies.

Landing in D.C. in 2015, Wright met the GOAL liaison in D.C., Michaela Sims, JD’96, who said a new opportunity was emerging, based on a conversation Sims had with someone at her church.

“It was just one of those who-you-know things that happen in Washington,” Wright says. “But at the end of the day, Michaela asked if I’d be interested in working on the Military Commission Defense Organization (MCDO) and maybe going down to Guantanamo. So I went to the law offices of James G. Connell III, got a security clearance, and went to work for the MCDO. It was a pretty incredible experience, especially considering how receptive everyone was to having a law school student intern working on one of the biggest cases in the country’s history.”

With Connell, one of the civilian defense attorneys for the five accused 9/11 conspirators, Wright threw herself into the work on al Baluchi’s case. She had always considered herself an advocate for the exercise of the full protections of the law and, in zealously advocating for al Baluchi, Wright said she went even further down the track, coming to a more robust appreciation for human rights and the crucial standards of due process. As a soldier, however, Wright said she was equally aware of certain factions snipping away at what the MCDO was doing, and the sideways looks she sometimes got.

“There were friends of mine, family even, wondering how I could dare do this,” she recalls. “How could anyone defend someone accused of masterminding 9/11? I get that. But this was such a groundbreaking case. Who gets that kind of opportunity when you’re still a law student? For me, it still resonates. We were working on a case with no precedent, arguing and trying to create new precedent. The whole process was set up so we could convict and kill these guys and, until the lawyers on the defense got involved, that might have happened. And I’d say it’s a good thing the defense lawyers got involved and are fighting for their clients. It says something about the system of justice we want to have in this country, the system we idealize in this country.”

For Wright, Foley, Wareham, and a growing pipeline of Creighton lawyers and law students who have taken or continue to take an active role in MCDO, this is the central thrust of not only their legal education, but their moral and ethical one, too: to fight the good fight of the rule of law. Creighton students working on these cases have found themselves often the only law students working for the defense, a front-row seat to history.

The recent developments at Guantanamo, coupled with the current American presidential administration’s renewed interest in interrogation methods that have been criticized as torture, have again made the cases of the alleged 9/11 plotters at least newsworthy. The fact that many of the accused have been consigned to more than 15 years in a limbo of hearings and confinement, of justice delayed, deferred or even forgotten, may be a telling statement of how the U.S. reckons itself and its systems since that clear September day in 2001.

Nearly three-quarters of a century ago in the aftermath of World War II, the U.S. took a strong hand in bringing swift, consequential justice to a group of international criminals — the leaders of Nazi Germany who orchestrated the systematic murder of 6 million Jews and millions of Poles, Slavs, Romani and others they labeled subhuman or a drain on society. Robert Jackson, an associate justice on the U.S. Supreme Court, reflected on the proceedings by saying, “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”

With agreed upon procedures and judicial codicils, the defendants at Nuremberg were tried, convicted or acquitted, and sentenced in what is generally agreed upon as one of the sterling moments in American jurisprudence, as much of the proceedings were carried out on the strength of the U.S. system. Following the Nuremberg Trials, however, the U.S. largely absented itself from international criminal law, deciding in subsequent incidents to keep its own counsel.

Now ranged up against a criminal enterprise that reached into several other nations and abrogated the social and religious fabric of the Middle East and Afghanistan with two wars, on a little corner of American soil in Cuba, the 9/11 detainees spool out their uncertain fates.

“This is the anti-Nuremberg,” Wareham says. “The fairness of the process at Nuremberg was of primary importance. What’s happening at Guantanamo is discovery going on over a decade, defendants left to rot, the rules being made up as we go along. That’s not to say that I ascribe much malice to the prosecution; it’s just the way things have gone. I hope someday we will look back on this and we’ve learned something, but it’s hard to say that right now.”

The prosecution at Guantanamo has not given an interview or press briefing on the 9/11 case since October 2017. Contacted for this article, a spokesperson for the prosecution declined comment. A request by the prosecution to order both prosecution and defense to limit statements about the case made outside the courtroom has not been ruled on by the judge.

When Scott Straus, MS’17, JD’17, landed in D.C. in the summer of 2016, he figured he would find himself in a bustling office in one bureau or agency or another, learning the ways of the circuit and discovering the many roles a lawyer can play in the Beltway. He was curious about the ethics of governmental service.

What he found in the military commissions, he says, was an abrading of the ideals he’d been taught in law school and a generally questionable set of rules governing a new, untried and questionable legal process.

“I didn’t go into the GOAL program thinking anything about the military commissions,” Straus says. “But when I got into the cases and went to Guantanamo and saw what was going on, I saw that the government, with the commissions, was abusing the rule of law based on what we’d learned in law school. Granted, the whole process is novel. But Mr. al Baluchi has been subjected to extreme rendition for three or four years. He’s been tortured. I couldn’t even begin to articulate my dismay.”

Indeed, al Baluchi’s case formed some of the basis for the opening scenes of Zero Dark Thirty, Kathryn Bigelow’s 2012 film about the conclusion of the manhunt for al-Qaeda leader Osama bin Laden, in which a man is shown being tortured to give up information about bin Laden. According to reports from the Miami Herald’s Carol Rosenberg, the only journalist covering the proceedings at Guantanamo, the film was shown by al Baluchi’s lawyers who argued the CIA had allowed Bigelow access to evidence on al Baluchi’s case while denying the defendant’s own lawyers similar access.

“It really is being done entirely in the shadows,” Straus says.

Beyond the legal underpinnings of the military commissions, the Creighton students and alumni who have taken an active hand in the defense say their experience at the Creighton School of Law provided a more thorough insight into criminal defense as a matter of social justice. Beyond the countless hours of discovery and pleadings and thousands upon thousands of pages of reading, a more complete, more discerning picture of the defense has taken shape.

Brandon Barrata, a third-year student in the GOAL program, has assisted in the defense of Khalid Sheikh Mohammed, who was captured in March 2003 and has been referred to in the 9/11 Commission Report as the architect of the 9/11 attacks.

“Khalid Sheikh Mohammed, he’s a human being, first and foremost,” Barrata says. “And as human beings, we have certain inalienable rights. That transcends the severity of the crime. And because what happened on 9/11 happened on American soil, we still owe those who are accused the rights they’d have in an American courtroom. I came into law school wanting to be a prosecutor but this internship, being on the other side and seeing the differences, has opened me up to the idea of defense work, precisely because something like what’s happening at Guantanamo Bay has gone off the radar for so many people.”

Creighton’s role in the military commissions is one students and alumni are hoping can continue, given the law school’s interests in international law.

“Scott Straus’ enthusiasm and dedication paved the way for me to come on the following year, and I knew it would be a once-in-a-lifetime experience,” Foley says. “From spending a day at United Nations Headquarters witnessing our team’s advocacy for international human rights to the research skills I gained working on this complex criminal case — there is no other opportunity quite like it.

“The mentoring I received from Maj. Wareham throughout the externship extended that Creighton connection. I think it’s something we’d like to see continue. It speaks highly of the inclusive environment on Team al Baluchi and the school’s values to encourage law students to seek truth and justice.”

And with the wider goal of bringing justice to a complicated scenario, the students and alumni involved say they are putting into practice the theories, ideals and values they’ve learned in the Creighton classrooms, with a hope of bending this chapter in American history toward justice.

“The people who are working on these cases have been so passionate,” Wright says. “It is a great cause, the cause of justice, and I can only feel that it is helping to build those who have taken part into better attorneys.”

“Very few of us can say what the law is at any one time,” adds Wareham. “At the end of the day, though, it’s a microcosm of what we believe about ourselves as far as the American value of justice. When it comes to the defense of the rule of law at Guantanamo, when it comes to these defendants, I think someday we’re going to look back and realize that this was either a defining moment of character or of failure.”