Seton Hall Law DEFENDING THE RULE OF LAW IN GUANTANAMO

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1 Seton Hall Law FALL TWO THOUSAND AND FIVE VOL. 7 ISSUE 1 News for Alumni and Friends of the Seton Hall University School of Law DEFENDING THE RULE OF LAW IN GUANTANAMO

2 Calendar of Events for OCTOBER 3 Supreme Court Swearing In U.S. Supreme Court, Washington D.C. NOVEMBER TBD New Jersey Bar Swearing In Seton Hall Law School 3 7th Annual Young Alumni Night 7-9 p.m th & 30th Year Reunions TBD 6-9 p.m. 7 LEO Dinner, Pronto Cena Newark, NJ 6-9 p.m. 29 Admissions Open House 9 a.m. - 2 p.m. FEBRUARY 11 Graduate Programs Open House 9 a.m. - 2 p.m. MARCH 6-9 Health Care Compliance Certification Program

3 FOR MORE INFORMATION, CONTACT: Shannon Marcotte Assistant Dean for Alumni & Development (973) fax (973) Deana Cynar Director of Alumni Relations (973) Christine Bland Director Law School Communications (973) We d like to hear from you. Please contact us at Table of Contents Letter from the Dean Letter from New Alumni Council President No Prison Beyond the Law The Haiti Rule of Law Project The Case of Theresa Marie Schiavo A Myriad of Ways to Donate to the Annual Fund Distinguished Graduate 2005 Christopher J. Christie, J.D Merck Visiting Scholars Louis J. Andreozzi, J.D. 84 Delivered Keynote Address at 51 st Annual Commencement New Faculty New Administrators Class News & Notes In Memoriam: Seton Hall Law School Professor Peter W. Rodino, Jr, and former Seton Hall Law School Dean John F.X. Irving

4 Letter from THE DEAN The opening of this academic year marks my seventh year as Dean, and this issue of the alumni magazine is my favorite so far it epitomizes the absolute best of our Law School. Our striking cover announces an article authored by a professor from our Center for Social Justice who is defending the civil rights of a Guantanamo Bay detainee. As I am sure you have read in the Washington Post and New York Times, Professor Baher Azmy has been to Gitmo three times to counsel his client. His representation is merely a small window into the work of our Center for Social Justice, which toils each day towards the fulfillment of the Church s social justice mission. Many of our faculty focus their scholarship and other activities on legal issues that intersect with Catholic teaching or are of special importance to the Catholic Church. The next issue of the Law School s Legislative Journal will publish the papers that were presented at a November 2004 conference organized by Professors Angela Carmella and Stephen Lubben on Bankruptcies by Church Entities. Catholic teaching was also much discussed in relation to the treatment termination case of Terri Schiavo. Kathleen Boozang, Associate Dean of Academics and Professor of Law, and Carl Coleman, Director of the Health Law & Policy Program and Professor of Law, disentangle some of the issues implicated in the Schiavo case that became muddled in the media frenzy that occurred. Specifically, they seek to clarify Church teaching on treatment termination. Before joining Seton Hall, Dean Boozang represented Catholic hospitals, and wrote an amicus brief for the Missouri Supreme Court on behalf of several Catholic hospital sponsors in the case of Nancy Beth Cruzan. Professor Coleman, a nationally known bioethicist, has just published his first book which focuses on the ethical and legal issues arising out of experimentation involving human subjects. Seton Hall Law s commitment to its social justice mission is increasingly global in its outreach. Seton Hall faculty and students accompanied me on Seton Hall s second (with many to follow) trip to Haiti in February. Supporting what is now officially called the Seton Hall Rule of Law Project, students raised more than $4,000 for our sister-institution, the L Ecole Superieure Catholique de Droit de Jeremie, a small evening law school in Jeremie, Haiti. The Haitian law school was founded 10 years ago by Archbishop Willy Romulus and Fr. Jomanas Eustache to achieve their vision that Haiti s salvation lies in a commitment to the rule of law. Seton Hall s efforts were initiated by Seton Hall alum Fr. Eugene Squeo, J.D. 81, whose involvement in the Haiti Solidarity Network of the Northeast is part of his ministry to his Haitian parishioners in Jersey City. In a country where hope is in short supply, Fr. Jomanas and his students provide hope for a brighter future for the people of Haiti. We are proud to be a small part of their ministry. Last Fall, I formed a Law School Board of Visitors to contribute to our vision for the Law School, to expand the opportunities we offer our students, and to assist us in developing the resources required to continue our climb toward becoming one of the nation s top Catholic law schools. The Board has met twice, and has already become an important contributor to the advancement of Seton Hall Law s mission. This issue of Seton Hall Law gives a taste of what it is about Seton Hall Law School that makes me so proud to serve as its Dean. I hope you enjoy reading this issue as much as I did. Comments and feedback are always welcome feel free to inform me or any administrator at Seton Hall what s on your mind. Until then, God bless you, your loved ones, and the Law School. Patrick E. Hobbs Dean and Professor of Law

5 Letter from New Alumni Council President Frederic J. Regenye Greetings Fellow Alumni, As the year progresses, so too do the activities and achievements of our great Law school. Let s take a brief look back, and then jump ahead to see what s in store for the future. Several years ago, the Law School recognized the need for an organization specially designed to ensure that our most recent graduates would remain as active after commencement as they were before. That led to the creation of the Young Alumni Council, which has been so successful that it has now formally been made a part of the larger Alumni Council. One of the most well-attended events is the annual Young Alumni reunion, which is traditionally held in November and draws in excess of 200 of our best and brightest. Our alumni have now spoken again, and wish to develop an organization specially tailored for those graduates living and working in New York. This particular project is still in the nascent stages, but we expect positive news to report in the near future. In keeping with the Law School s need to expand and grow, Dean Hobbs has recently formed a Board of Visitors comprised of leaders in the legal and business fields to help spearhead future development. I am proud to be a part of this distinguished and involved group. These are only the tip of the iceberg. There are so many projects, plans, and studies under way that it would be impossible to list them all in this limited space. But don t take that to mean that we are not receptive to input. Quite the contrary we would love to hear from the alumni as to what you would like to see next. Dean Hobbs and the faculty and administration are unwaveringly committed to making Seton Hall one of the premier legal academic institutions in the country, but they cannot do it alone.our alma mater needs each and every one of us to contribute in some way,be it financial, mentoring, volunteering for programs, or simply attending some of our many fabulous events. It is up to every one of us to demonstrate to the world that Seton Hall Law School is without peer. Become involved. You will be glad that you did. Onward and upward! Frederic J. Regenye, 95 President, Seton Hall Alumni Council

6 No Prison Beyond the Law: Seton Hall Gets Involved Two Seton Hall Law School professors, Baher Azmy and Mark Denbeaux, each have been assigned as Counsel to two Guantanamo Bay detainees. Each professor is in a different stage in the process, and each professor has an interesting perspective to share. Their stories are recounted here. 4 Seton Hall University School of Law

7 Baher Azmy, Associate Professor of Law, Center for Social Justice Professor Azmy compellingly related his experiences working with his client, Murat Kurnaz, a 22 year-old newly married man of Turkish ancestry who was born and raised in Germany. Azmy received his B.A., magna cum laude, with distinction in American History, from the University of Pennsylvania before pursuing a Master s degree from Columbia University s School of International and Public Affairs. He received his J.D. from the New York University School of Law, magna cum laude, where he distinguished himself as a Root-Tilden-Snow Public Interest Scholar and as a member of the Order of the Coif. Professor Mark Denbeaux and his son, Seton Hall Law School alumnus Joshua Denbeaux, J.D. 94, were appointed Counsel to two Tunisian citizens who are prisoners in Guantanamo Bay. As of press date of this magazine, the two had never met their clients and were packing their bags to fly down to Guantanamo Bay. Professor Denbeaux received his A.B. from the College of Wooster and J.D. from New York University. Prior to teaching, he was senior attorney in charge of litigation for Community Action for Legal Services of New York City. He was subsequently Chair of the Board of New York City Legal Services Program. He has published numerous articles on evidence, constitutional law, civil procedure and remedies. He co-authored NEW JERSEY EVIDENTIARY FOUNDATION: NEW JERSEY AND FEDERAL RULES OF EVIDENCE (1995) and TRIAL EVIDENCE, CASES AND MATERIALS (1978). He came to Seton Hall in Seton Hall Law Professor Mark Denbeaux and his son, Joshua Denbeaux, J.D. 94. Joshua W. Denbeaux practices First Amendment Law, commercial and general litigation, criminal defense in the firm of Denbeaux & Denbeaux in Westwood, N.J. He also has a substantial appellate practice. Fall Two Thousand and Five 5

8 Baher Azmy Gets Involved On the morning of April 20, 2004, John G. Gibbons, former Chief Judge of the Third Circuit Court of Appeals and Seton Hall School faculty member, rose before the nine members of the United States Supreme Court to deliver the memorable opening lines of the argument that would represent a crowning achievement of a remarkable 55- year legal career. A group of seasoned lawyers had asked Judge Gibbons to brief and argue this case in the Supreme Court on behalf of Iqbal Rasul a British citizen detained by the U.S. government at the U.S. military base in Guantanamo Bay, Cuba as a so-called enemy combatant. They did so not only because Gibbons has uncommon expertise in the complex areas of federal jurisdiction, but also because, through his personal experience as a naval officer stationed after World War II at Guantanamo Bay and his senior, statesmanlike stature in the federal judiciary, he appears to embody the very fundamental principle he was asking the Court to recognize: the application of the rule of law. Mr. Chief Justice and may it please the Court, Judge Gibbons began. What is at stake in this case is the authority of the federal courts to uphold the rule of law. Were the U.S. government to continue to act as if the detainees in Guantanamo Bay are entitled to no legal process whatsoever, on the theory that they are foreigners held outside U.S. territory, Judge Gibbons argued, it would create a lawless enclave insulating the executive branch from any judicial scrutiny now or in the future. In its historic decision in Rasul v. Bush issued that summer, the Supreme Court agreed with Gibbons that this would be an unacceptable result. The Court held, 6-3, that the detainees had a right to challenge the lawfulness of their detention through a petition for habeas corpus a writ described by Blackstone as the great and efficacious writ in all manner of illegal confinement and the most celebrated in English law. The Court reasoned that, the federal courts to hear. A number of the nations top law firms, including Covington & Burling, Sherman and Sterling, Clifford Chance and Wilmer Hale Cutler & Pickering, signed on to represent detainees. Gibbons also contacted me because I worked on many cases with the lawyers in the Gibbons Fellowship in Public Interest and Constitutional Law. I would represent detainee Murat Kurnaz, a then 22 year-old man of Turkish ancestry who was born and raised in Germany. I had no hesitation in agreeing to take on what I thought was a historically important case. I knew little about the facts in the beginning, but as a lawyer and constitutional law professor, I thought the very simple issue was obtaining the most basic access to due process so that Murat s status could be fairly adjudicated consistent with years of U.S. practice, and not determined merely by executive or military fiat. As an American of Egyptian descent, I also thought it critical to demonstrate to the world, particularly the Muslim world, that the United States would uphold its commitment to freedom, democracy, and honesty. Because Murat had been held incommunicado in Guantanamo Bay since about January 2002, I could not get his consent to file a petition on his behalf. Instead, I filed on behalf of Murat s mother, Rabiye Kurnaz, who served as his next friend and was able to represent that she believed that he would want to challenge his detention. In his habeas corpus petition, Murat alleged that he was not an enemy combatant because he had never entered Afghanistan or intended to, never held a weapon or made any threats against the United States or its allies allegations later confirmed to be true by Murat and the U.S. government itself. Also because he was not afforded any process to challenge the government s classification of him, the petition claimed that his detention violated the due process guarantees of the U.S. Constitution, international treaties such as the Geneva ON THE SECOND DAY, I BROUGHT COFFEE...BECAUSE I KNEW [MURAT] WAS TURKISH... because Guantanamo Bay was within the exclusive jurisdiction and control of the government making it in all practical respects, U.S. territory detainees held there have the right to judicial review of the legality of the Executive Detention imposed upon them. The decision was lauded by lawyers and legal scholars, not so much because of its technical treatment of complex questions of federal court jurisdiction, but for its essential premise: under a constitutional system such as ours, the government cannot create a space completely unrestrained by the rule of law. Immediately after the Rasul decision was handed down, lawyers at Gibbons, Del Deo, working with lawyers from the Center for Constitutional Rights in New York, attempted to find counsel for a number of detainees for whom relatives abroad had sought assistance, in order to file petitions for habeas corpus that Rasul had required Convention, and U.S. military regulations which require a speedy and reliable determination of a prisoner of war s status. After filing the petitions, I, and other lawyers for detainees, prioritized meetings with our clients in order to understand the circumstances that led to their detention and also to find out about their mental and physical health a substantial concern based on the length of their incommunicado detention in reportedly harsh conditions. But getting to Guantanamo was no easy task. All lawyers working on the case had to obtain top secret security clearance, which took approximately eight weeks. The government lawyers also contended that, despite the Court s ruling in Rasul, the detainees actually enjoyed no right to counsel; as a result, the government maintained it could prohibit lawyer access to detainees and fully monitor all lawyer-client communications. After a federal court rejected the government s argument, I made plans 6 Seton Hall University School of Law

9 to visit my client in Guantanamo in early October 2004; I was the third civilian lawyer to visit the base. Gitmo: A Strange, Isolating Place I touched down in Guantanamo, best described as strange and isolating, on October 9, 2004, after taking a chartered flight by a militarily contracted civilian airline from Ft. Lauderdale. Guantanamo is on the island of Cuba, obtained in 1903 through a perpetual lease from the then-friendly Cuban government. Though Fidel Castro s government does not recognize the legitimacy of Guantanamo, the U.S. still dutifully sends Castro a rent check for use of the island reportedly in the amount of $450 a month which he, in turn, dutifully refuses to cash. The island was once a sleepy military outpost. After the conflicts began in Afghanistan, however, the military decided to transform it into a detention and interrogation center for prisoners of the war and other terrorist suspects; it is now extremely active populated by thousands of military personnel,contractors and workers servicing those personnel and, of course, by hundreds of foreign detainees. The U.S. now holds approximately 550 persons in detention there as enemy combatants, though many hundred others have passed through before and have either since been released by the military or, in some cases, still kept in what human rights groups claim are secret detention facilities there or in other parts of the world. I was assigned a military escort around the island, who was a wonderful guy, but very chatty. At the mess hall breakfast on the morning I was to meet Murat Kurnaz, the Marine Sergeant wanted to talk about everything under the sun, while I was incredibly anxious about what I would say to someone who had not had any non-military human contact for three years and, for all I knew, would want nothing to do with me or the legal process.twenty minutes after breakfast, we were standing in front of Camp Echo, in to get some kind of proceeding for him where we could see and test whatever evidence the government had against him. Murat had absolutely no idea that any one knew he or Guantanamo itself existed; he assumed no one knew or cared. At the conclusion of my introductory explanation, he simply said, this is good and agreed to my representation. The first day with Murat, I chose not to talk about the facts surrounding his case, electing instead to spend hours telling him about how Murat s family was doing, my own life, and all that had been happening regarding the case, all in order to develop some trust, which I thought would be a real issue. On the second day, I brought coffee with me, because I knew he was Turkish, with lots of sugar, and apple pies from the McDonald s base into our meeting. He was very grateful. He hadn t had a cup of coffee in three years and said the pies reminded him of his mother s. On the second day of our meeting, Murat told me everything that had happened, which is exactly what he had been telling his interrogators for three years. Here is his story: Around age 18, Murat had become increasingly religious, shunning his family s more secular brand of Islamic practice, for one more devout and rigorous. In the summer of 2001, he married a young woman in Turkey, who was herself very religious. Plans were being made to bring her to Germany to live with him and his family by December In the meantime, Murat wanted desperately to learn more about Islam, specifically how to pray and read the Koran in Arabic. He and a friend carried out a long-considered plan to study for a few weeks in Pakistan, where they could work inexpensively and intensively. They traveled to Pakistan in October 2001, a plan Murat now admits was unwise, but at the time didn t concern him. He joined up with a large missionary group in Pakistan, one that is well known to be HE HADN T HAD A CUP OF COFFEE IN THREE YEARS. BAHER AZMY, PROFESSOR OF LAW the blazing sun, with the sound of military practice rounds in the background, awaiting to enter a military sanctum only two civilian lawyers had previously seen. Camp Echo houses detainees during the time in which they have lawyer visits. Unlike Camp Delta, where most detainees are housed, in Echo there was a small table and two chairs just outside the 5.5' x 8' cell. When I entered the room, Murat was sitting down, his feet were chained to each other and to a bolt in the floor; I had requested that his hands be left unchained. I sat across from him, shook his hand, and introduced myself. In three years, I was the first person with whom he spoke who wasn t an interrogator or MP. I spent the first couple of hours trying to explain how I got there how his mother had hired lawyers in America, how she d been fighting for him in the German and American media, how we filed legal papers on his behalf, and how we were trying completely peaceful and apolitical. In about November, he was on a bus full of Pakistanis on his way to the airport to return home, when police pulled him off at a routine bus stop, asked him questions because of his obviously Western complexion and dress, and finally detained him. After some time, the Pakistanis turned him over to the American military for what I suspect was a financial bounty. Murat was taken to a military base in Afghanistan, where he was interrogated and badly abused for several weeks, before being transferred to Guantanamo. Murat, before his detention at Guantanamo.

10 The Government s Legally Insufficient Evidence Against Kurnaz Soon after I returned to Newark, the government filed with the court the unclassified basis for Murat s detention a document which purported to meet the requirement of providing a factual return to Murat s habeas corpus petition. This was a historic development because in three years the government had never proffered any reasons for any detainee s detention. I was quite stunned by the allegations. They ranged from astonishingly tangential to genuinely absurd. There was no allegation that Murat ever entered Afghanistan or intended to, ever took up arms against the United States or intended to, or even communicated with anyone who is specifically connected with Al Qaeda or any terrorist group. Instead, the government claimed that Murat received food and lodging from the missionary group he admittedly traveled with, which the government believed had at some point had some members who supported groups hostile to the United States. Second, the government claimed that Murat s friend in Germany, Selcuk Bilgin, with whom he planned to travel, had engaged in a suicide bombing. This last charge has become quite an embarrassment to the government, because as newspapers such as the Wall Street Journal, Washington Post and New York Times, have repeatedly reported, Bilgin is alive and well in Germany. We asked the prosecutor in Bremen about this allegation, and he responded that he never heard of such a thing and that he had fully investigated Bilgin and Murat after Murat s apprehension and concluded that there was no evidence connecting either of them to any terrorist groups or activities. All the classified evidence against detainees with pending habeas petitions was held in a secure, secret facility near Washington, D.C. I traveled there in November to review Murat s classified file. I couldn t believe what I was reading. His file had virtually nothing to incriminate him. It simply corroborated his own story, demonstrated that he had no political sophistication or sympathy for terrorism and, most astonishingly, included a number of conclusions by military officials that actually completely exonerated him. It was nearly impossible to keep this to myself. But, because of security restrictions, I could not tell the specifics of what he had learned to my clinic students working on the case or even to Murat s German co-counsel. However, there were procedures in place that allowed the federal district judge managing the consolidated detainee cases to see both the unclassified and classified evidence against Murat. On January 31, 2005, one day after I returned from my second visit with Murat, that judge, Judge Joyce Hens Green, issued a lengthy legal opinion. In spite of the Court s holding in Rasul, the government had to dismiss the numerous Guantanamo habeas petitions once again. Judge Green denied that motion, holding because the Rasul Court concluded that Guantanamo was U.S. territory and the detainees had the right to file habeas petitions, the detainees possessed basic due process rights to challenge those detentions.those rights included the right to counsel, the right to see or have counsel see all of evidence against them, and the right to an impartial decision-maker, all of which she concluded were seriously disregarded by the process that the government had instituted in a purported attempt to comply with Rasul. Remarkably, in an opinion dealing with 11 consolidated habeas petitions on behalf of 55 Guantanamo detainees, Judge Green spent a great deal of time discussing Murat s specific case, perhaps recognizing it to be one of the most egregious examples of the flawed processes at Guantanamo. She held that, even if all the unclassified allegations against Murat were true, they are insufficient as a matter of law to detain him as an enemy combatant. In so doing, she placed limits on the otherwise unfettered discretion of the executive to determine who can be designated an enemy combatant. Presumably unaware that Bilgin did not, in fact, ever engage in any suicide bombing, Judge Green, nevertheless, concluded that Kurnaz could not be detained for a friend s actions he concededly had no part in. She noted that there was no evidence that Murat planned to be a suicide bomber himself, took up arms against the United States or otherwise intended to attack American interests. [or] to establish that his studies [in Pakistan] involved anything other than the Koran. She thus concluded that, the U.S. government is holding Murat, possibly for life, solely because of his contacts with individuals or organizations tied to terrorism and not because of any terrorist activities that the detainee aided, abetted, or undertook himself. Judge Green also reviewed Murat s classified file in detail and agreed that the file actually tends to exonerate him. She cited to no less than five statements in his classified file that demonstrate that the U.S. military itself has concluded that Murat has no connections to Al Qaeda, the Taliban or other terrorist groups. For example, as has been now widely reported, military intelligence concluded, that it is not aware of any evidence that Murat has knowingly harbored any individual who was a member of al-qaida or who has engaged in, aided or abetted, or conspired to commit acts of terrorism against the U.S., its citizens or its interests. And, that The Germans confirmed that this detainee has no connection to an al-qaida cell in Germany. My students and I were exhilarated with the reach of the decision. As the students suggested, this changed the theory of the case from one demanding a fair adjudication of Murat s status to one that emphasized the innocence of our client and unjustness of his detention. We began preparations for a summary judgment motion, demanding our client s release. We knew the government had no other evidence it could present, so the logic of the Green opinion suggested he had to be released. Before we could finish, however, the government successfully sought a stay of the decision pending appeal to the D.C. Circuit Court of Appeals. Making the Case through the Media and Diplomacy Since the judicial stay left the Center For Social Justice temporarily without legal recourse, we moved ahead simultaneously on diplomatic and media fronts. Armed 8 Seton Hall University School of Law

11 Professor Azmy, seated, far right, is pictured here with, seated, Art Ownens; standing, from right, are Jessica Yager, Faculty Fellow; Allyson Villano, J.D. 05; and Kathleen Hirce, J.D. 05. with comprehensive briefing books prepared by clinic students, I attended meetings with diplomatic officials in the German and Turkish embassy, neither of which was terribly successful. The German Embassy was very interested in Guantanamo in general because Germany has a strong opposition to its existence, but refused to act diplomatically on his behalf because technically he is a citizen of Turkey. The Turkish officials recognize they have a formal obligation to receive Murat if the U.S. releases him, but seemed remarkably uninterested in arguments about international law and human rights violations committed against one of its citizens. I also traveled to Germany to conduct a series of very well-attended press conferences there and meet with high-ranking government officials in the parliament and foreign ministry. I left with some lukewarm promises to approach the United States directly or in cooperation with Turkey to inquire about Murat. Though my trip was certainly helpful, it confirmed my instinct that only the American media could impact my client s case. I pitched my client s story to a number of major newspapers, suggesting that Murat s case provided the most complete factual picture of any of the remaining Guantanamo detainees and raised very disturbing questions about Guantanamo itself. I knew Murat s case seriously undermined the government s claim that Guantanamo only houses the worst of the worst or that the military should be completely insulated from any scrutiny of their practices. On Easter Sunday, the Washington Post ran a front page, above-thefold story about Kurnaz, documenting the substantial evidence from U.S. and German intelligence that Murat has no connection to terrorist groups. The article was very embarrassing to the government because it made clear what we had been saying for several months: not only is Murat innocent, the government actually knows it. Yet, he is now starting his fourth year of detention. In June the New York Times ran a lengthy feature about Murat s case, tracking down evidence in Germany that demonstrates he had no connection with terrorist groups there. Murat s case has also received prominent attention in New York Newsday, the Boston Globe and the Miami Herald. No Ordinary Clinical Case In all of the Seton Hall clinics, students work on real cases on behalf of live clients, and the clinics in particular emphasize giving students substantial decision-making authority over their cases, developing a personal relationship with a client, doing intensive factual investigation and handling all court appearances. In this case, however, students lacking the required top secret security clearance obviously could not meet with the client or even see all the evidence against him; they also are not permitted to appear in the District of Columbia, where this case is located. Nevertheless, the students participated fully in decision-making, drafting sections of briefs for the consolidated opposition to the motion to dismiss, drafting a successful preliminary injunction motion to preclude their client s rendition to a third country possibly to face torture, and the dozens of letters, briefing books, press releases and untraditional advocacy documents that have given this case the pronent international stature it currently enjoys. The students considered this a remarkable, once-in-a lifetime experience. It was fascinating to work on a case involving Guantanamo Bay, a place at the forefront of controversy in the media worldwide, said Dana Citron, J.D. 05, one of the students working on the case. Since the issues involving detainees rights are novel and unclear, it was exciting to see the law unfold before our eyes in the courts, albeit slowly, and to be a part of shaping the law in this area. Working on Murat s case was an extremely gratifying experience; I only hope that one day I ll be able to meet him in person. Turning A Corner? As Murat started his fourth year of detention, Congress has taken a serious interest in the detention facilities in Guantanamo, with numerous members of both parties of Congress recommending an independent commission to review the legal processes employed there and to investigate increasing allegations of abuse that have been surfacing. I believe this attention is important. Transparency is crucial to democracy, even more so at a time when we are trying to convince hesitant states, particularly in the Muslim world, to open their own societies and adopt democratic reforms. As of the time this magazine went to press, I was preparing for my third visit to Guantanamo, despite the very serious obstacles my students and I are facing during the course of this litigation. I remain optimistic. After I returned from my first visit, we received the government s factual return, which proved the government had no evidence against Murat. After I returned from my second visit, Judge Green issued her opinion ruling that Murat s detention was essentially unlawful. After I return from my third visit, I hope to learn that Murat can go home. Fall Two Thousand and Five 9

12 And the Caboose Picks Up Steam Professor Baher Azmy has described the Guantanamo Bay litigation from the Supreme Court litigation to the present. We are not addressing those issues because we joined the Guantanamo Bay Bar Association long after he did and also after others have completed much of the hardest work. We view ourselves as the caboose to Professor Azmy s locomotive. Professor Azmy has been to Guantanamo repeatedly and has traveled widely on behalf of his clients. We have only now been granted security clearance so that we can meet with our clients. Our pressing issue is how to create the attorney client relationship during our first client visit. The issue is one all lawyers confront but not usually with the difficulties faced by lawyers for Guantanamo prisoners. WE MUST TRY TO DEVELOP TRUST THROUGH PEOPLE SKILLS, HONESTY, A little background may help to place the upcoming visit and the issue of attorney client representation in context. Perhaps the most counter-intuitive feature of our attorney client relationship is that none exists now. We have never met our clients. We claim to be representing clients who are unaware of our efforts on their behalf and who have not retained us. How can this be? The answer is: our clients have a right to a lawyer but to date have been prevented from making any communications that would enable them to obtain legal counsel. In essence, the government is estopped from objecting to lawyers representing Guantanamo inmates before the lawyers have been allowed to meet with their clients. We know nothing about our clients except that they are both reported to be from Tunisia. We do not know where they were arrested, why they are being held, what the basis for their imprisonment is, what languages they speak, and how educated they are. One might expect that representation of Guantanamo prisoners would be dramatic and interesting. Certainly, we did. To date, our experience has been anything but dramatic. Instead it has been frustratingly slow and burdensome.we filed the habeas corpus petition in March and several other motions in April and May, and the Court ordered the government no to render our clients (i.e., remove to another country) without 30 days notice to us. We have now received security clearance and signed the necessary protective orders. This is no small achievement. We spent May and June seeking security clearance.we now have secret security clearance, which is required before we can communicate with our clients. We have also sent letters of introduction to our clients in English and Arabic. We do not know if our letters of introduction will be received by our clients before we arrive. The government procedures to protect the information that we might receive from or pass on to our clients are intricate and burdensome. For example, all letters to our clients must be reviewed for security purposes at a secure government facility before being sent on to our clients.the same will be true when our clients communicate with us. So far, most of our time has been spent coping with the security restrictions because of the government s claim that the prisoners held at Guantanamo are a threat to national security. For instance, when the two of us need to discuss the case, we must do so only in a locked room, and we must not use the same room for consecutive meetings. Each time we meet to consult, we must shift from one locked room to another. Our clients, during their years in Guantanamo may have been (and may still be) interrogated as often as once a day by CIA or Military Intelligence. Such interrogators use a variety of guises. Sometimes the interrogators are disguised as members of the International Red Cross and portray themselves as friendly, trustworthy sources of assistance. Unfortunately, the interrogators have also impersonated American lawyers and have claimed to be interviewing the prisoners to assist them with their defense. With this background, how does an attorney begin to prove that he is a detainee s lawyer? Building trust is always crucial for lawyers, but in this case the difficulties are especially great. Putting aside the problems caused by interpreters and location, what about people who are unaware of the most basic principles of the role of lawyers, our obligations of confidentiality and the adversary system? Worse, trust must be built in a limited time. Our first visit to Guantanamo will be five days, from start to finish, but the actual time with each client will be only one and one half days. We believe, but do not know, that our clients speak Arabic and not English. For that reason, we must bring an interpreter with us. Our interpreter is a Unitarian minister, who learned Arabic as a translator for the Air Force! 10 Seton Hall University School of Law

13 Assuming we can convince our clients that we are their lawyers and not government interrogators disguised as their lawyers, what do they expect from their lawyers? It will be difficult to bridge deep and wide cultural, religious, and political divides through interpreters during a dayand-a-half meeting with each of our clients. How can we overcome these obstacles? Here is what we cannot do. We have to avoid all appearances of So what to do? We must try to develop trust through people skills, honesty, openness, and some degree of intimacy. Trust is built by human interaction over time. We anticipate the only safe beginning with our clients is to talk about who we are. We are father and son. We have families (children and grandchildren). One of us is a lawyer in private practice, and one is a law professor. In addition to personal communications about families, we may be able to talk about cases we have been involved with if OPENNESS, AND SOME DEGREE OF INTIMACY. - MARK AND JOSHUA DENBEAUX interrogation.we need to convince our clients that we can, and will, help them. Once we are trusted, we can discover what our clients really want and what they know and what other information they might need. Some inmates have begun to appreciate, in a rudimentary way, the role of American lawyers. Other prisoners are discouraged because their lawyers have accomplished so little for them to date. Some prisoners have become so impatient and discouraged that they have lost confidence in the benefit of being represented by lawyers. Those prisoners who understand the role of lawyers in our adversary system do not understand why our legal process is so slow. Just try to imagine the conversation that we will have with our clients trying to explain why, after the Supreme Court said that they were entitled to a day in court, two lower courts cannot agree on what that day in court actually means.we do not look forward to explaining to our clients that due to the disagreement between two lower courts about what kind of day in court they are entitled to, that their cases are stayed pending Court of Appeals answer to that question. We have to advise them that whatever the Court of Appeals decides should be their day in court, they will not receive it until the decision is returned to the Supreme Court so that the Supreme Court can explain what it meant in its first decision. doing so will help to explain our legal system. We do not know much about our clients culture and history, but we have had the assistance of former members of the foreign service who served in Tunisia. They have given us some knowledge and some insights that might assist us to begin a dialogue after our introduction. We have been advised that we should bring some appropriate food to share with our clients during our meetings. One suggestion is to find the kind of food that they might favor and to bring with us each day as much as they can eat. All indications are that food provided to them is horrible. Indeed, as we plan our visit, some prisoners are reported to have begun hunger strikes. Hopefully, our clients will accept food. We are currently researching Tunisian cuisine.we are limited because whatever we take with us cannot be perishable. So far, we have found little besides nuts and dates. Dates and nuts seem trite, but they may be the only choice. We can and will bring coffee each day in a thermos (with a great deal of sugar ).The coffee and sugar can be obtained at the base each morning. Dates and nuts, etc., must be brought from the mainland. We are not allowed to leave food with our clients, so each day we must bring back what has not been eaten. Everything seems vague and uncertain as departure approaches. Nothing we have thought of seems imaginative, only obvious. Yet that is all we have at this time. Hopefully, we will learn form this visit so that our second visit will be more productive. Seton Hall Law Professor Mark Denbeaux and his son, Joshua Denbeaux, J.D. 94. Fall Two Thousand and Five 11

14 The Haiti Rule of Seton Hall Law School students and faculty Pictured here, from left: Church that doubles as a school; Haitian Law School class in session; Dean Hobbs with Seton Hall Law School faculty and students. 12 Seton Hall University School of Law

15 Law Project strengthen a relationship with a Haitian law school Several years ago, Seton Hall Law School developed a relationship with L Ecole Superieure Catholique de Droit de Jeremie, a small evening law school located in Jeremie, Haiti. The school was founded 10 years ago by Archbishop Willy Romulus and Fr. Jomanas Eustache. Both Fr. Jomanas and Bishop Romulus share a belief that Haiti can emerge from its poverty and endless cycles of political violence only by establishing a much greater respect for the rule of law. Seton Hall began its support of the Haitian law school after one of our alum, Fr. Eugene Squeo, J.D. 81, visited the school through the Haiti Solidarity Network of the Northeast. When he returned, he urged Seton Hall to get involved. We began by sending books for its library as well as other supplies, said Dean Patrick E. Hobbs. Two years ago, I made a trip to the school along with Professors John Kip Cornwell, Baher Azmy and Lori Nessel. We delivered lectures on Constitutional Law, Criminal Law, Immigration Law and Taxation. All of us came away inspired by what we saw taking place in Jeremie students literally walking miles to class, at a great financial sacrifice for their families, all in order to learn the law. Fall Two Thousand and Five 13

16 This past Spring, five students were selected based on essays detailing their interest in the Haiti Rule of Law Project. After several months of meetings, and a very successful fundraising effort, the students, three faculty members, and the Dean departed Seton Hall Law School with 10 cartons of supplies for Port-au-Prince. Jeremie, however, is a long way from Port-au-Prince, and the group arrived late in the afternoon. After dinner at the restaurant of a law student s family, it was on to the law school for the first lectures. Professor Cornwell delivered a lecture on criminal law and third-year law student Eric Magnelli recounted his time as a U.S. Marine stationed in Haiti and Cuba. The Seton Hall delegation also visited the Palais de Justice, where both teachers and former students from Jeremie s law school were hard at work providing the rule of law. The ever-present threat of violence was also evident. A judge told of shots fired outside his house the night before. A bag of M-16 shells sat on his desk a reminder of the risks involved in promoting the rule of law. Later that afternoon, the group visited a dilapidated church that now serves as both Fr. Jomanas church and a grammar school outside Jeremie. The school was also started by Fr. Jomanas in order to provide access to education for children in his parish. In the evening, one lecture focused on creating a fairer tax system for Haiti, where most view the tax system as more benefiting the wealthy elite rather than the general population. Akinyemi Akiwowo, J.D. 05 discussed his representation of an 87-year-old client at the Center for Social Justice, who had to file for bankruptcy. The group s last day in Jeremie provided an opportunity to view the conditions of Haiti up close. Accompanied by a member of the Jeremie law school s faculty, the students walked through the city of Jeremie witnessing scenes of both poverty and industry. They also visited the prison. Later that evening, the talent and commitment of Seton Hall Law students was again on full display. First, Danielle Franken and Michael Welch presented computer equipment and supplies, all paid for with funds raised by the students of Seton Hall Law School. They discussed the need for the students in Haiti to create their own student organizations to help the school progress. Professors Kevin Kelly and Anjum Gupta described Seton Hall s Center for Social Justice. They were followed by Elizabeth Merry Condon s discussion of her experience representing a victim of sexual harassment. The students and faculty did a wonderful job throughout our stay, not only through lectures and discussion but also through the many one-on-one conversations the expressions of support the encouragement to continue, said Dean Hobbs. That night we sat out on the porch of the Eveche, our home during our stay in Jeremie, and all agreed - Haiti is a remarkable place and the law school in Jeremie is a remarkable endeavor. A Haitian Policeman stands at attention.

17 It is difficult to prepare yourself for the devastation and extreme poverty you are certain to witness on a trip to Haiti. Still, I had told myself before I left to expect the worst.what I was not prepared for was the incredible spirit and resilience of the Haitian people, even in this time of political and economic upheaval. The students, activists, government officials, attorneys, and judges with whom we met each conveyed an intense drive to seek justice and peace and to work to build a government that all Haitians could trust to protect them and their interests. Although countless individuals and organizations in the United States work to achieve similar goals, I was struck by how much more difficult that pursuit would be working in conditions of limited resources, extreme poverty, and daily violence. I will miss the sights, smells and sounds of Haiti dearly, but, above all, what I have taken away from this trip is a deep appreciation for the perseverance and optimism of its people. Anjum Gupta, Faculty Fellow, Center for Social Justice From the first time I contacted Dean Hobbs about the possibility of traveling with the next group to Haiti, I tried to come up with ways that we could help while we were there. Unfortunately, the truth is, it works out a little bit backwards. Now that I am back, I have a solid appreciation and understanding for what the students in Haiti need that I could not have possibly had before I went. This realization speaks most to why the Haiti Rule of Law Project holds such an important place in our hearts. By forming the Haiti Rule of Law Project, students and professors can pass on their experiences in order to make each trip more effective than the last. I strongly support the continuation of this initiative because I have had the experience necessary now to visualize what it can become and what we can achieve. I hope I am able to pass my experiences on to those who will follow so that they can continue to help restore the rule of law in Haiti. I will make every effort to return to Haiti as it will always hold a special place in my heart. Danielle D Onofrio, J.D. 05 When I look back to the trip, I think of reciprocity. The main purpose of our trip was outreach, so I did not expect to learn as much from the students and the people of Jeremie as I actually did. Our time there was a reaffirmation of the importance of the rule of law, and, more importantly, the humanity that is central to the practice of law. The time that we spent there taught us that we, as American students, have just as much to learn from the Haitian students as they do from us, and I am grateful to have been able to experience that first hand. Akinyemi Akiwowo, J.D. 05 Seton Hall Law s two visits to Haiti are just the beginning.the Haiti Rule of Law Project can be an influential catalyst for the greater New Jersey, New York legal communities involvement in strengthening respect for the rule of law in Haiti. Lawyers can end the indifference that has left Haitians forgotten in the mud and the blood. Haiti has a constitution and elections are held, but one essential ingredient is missing: the rule of law. Without it, there is no hope that individual liberties and basic human rights will be respected. Establishing liberal democracies is not easy work. But lawyers have the expertise to shape attitudes and cultivate an environment where conflict is resolved peacefully and fairness prevails. I hope that the NJ/NY legal community will respond to this moral calling and, in turn, show the world that the U.S. is not indifferent to people struggling to create a liberal democracy in our own backyard. Elizabeth-Merry Condon, J.D. 05 Fall Two Thousand and Five 15

18 An arial view of the city of Jeremie, Haiti From my first moments at ESCROJ, I was struck by the zest for learning these students share. Even though some journey up to two hours each way in the dark to attend classes, none complain. On the contrary, they consider themselves lucky to have the opportunity to participate in the program. In completing their studies, the students also faced challenges incomprehensible to American law students. They lack even the most basic supplies: paper, pens, computers or even typewriters. But again, none complain. They are grateful for the chance to improve themselves, their community and the lives of those around them.their optimism and positive attitude in the face of severe hardship are truly inspirational. Kip Cornwell, Professor of Law, Seton Hall Law School When I am asked What do you expect to accomplish? my answer is a little ideological. But as long as we can lay a foundation on which others can build, there is no reason why our efforts cannot assist Haiti s future lawyers to bring the rule of law to their country. Eric Magnelli 06 My experience in Haiti taught me the importance of having trust in the law. Whether it be social law that governs relationships between neighbors or the official laws that govern a country, without trust in that system, it is very hard to build a society. Haitians don t trust that justice will be served, so they take the law into their own hands. Our support of the law school in Haiti is long term. But none of this transformation can start until there is a respect for the rule of law. Michael Welch 06 Having closely followed the daily events in Haiti following Aristide s removal from office, I was well aware of the dangers of traveling there, particularly on the one-year anniversary of the coup. However, the time I spent in Haiti was truly exhilarating. Among many other things, I was deeply moved by Father Jomanas and the law school community in Jeremie, who struggle against all odds to fulfill their worthy mission of promoting the rule of law in Haiti. The people of Haiti have much to teach us about humility, compassion and perseverance, and most of all, about having a true commitment to spreading peace and justice throughout the world. Kevin Kelly, Professor of Law, Center for Social Justice 16 Seton Hall University School of Law

19 No one can ever forget the first images of Haiti. It is the poorest country in the Western Hemisphere and no matter how much you prepare yourself, the sights of decay and poverty are stunning. It is not a society on the verge of collapse; it has long passed that point. The wealth of the country is concentrated in the hands of less than 200 families. For more than 90 percent of the population, every day is a struggle for survival. Patrick Hobbs, Dean and Professor of Law, Seton Hall Law School Danielle D Onofrio shows her camera to a group of awe-struck students. Fall Two Thousand and Five 17

20 Kathleen M. Boozang Carl H. Coleman Schiavo THE CASE OF THERESA MARIE The Florida case of Theresa Marie Schiavo presented the opportunity to tutor the American public on the medicine, ethics, law, social policy, and Catholic teaching that guide decision-making about the termination of life-sustaining medical treatment. Unfortunately, the case turned into a media event for so many agendas that it ended up exacerbating people s confusion about these issues, and violating the dignity and privacy of all of the involved parties. At Seton Hall Law School, Dean Kathleen Boozang, Professors Carl Coleman and Edward Hartnett collaborated to provide students and faculty with a contemporaneous explanation of law, medicine, and Church teachings relevant to the dispute. Subsequently, Professors Boozang and Coleman, who are both part of the Law School s nationally ranked Health Law & Policy Program, committed their insights to writing for SETON HALL LAW. While in practice, Dean Boozang represented Catholic hospitals, and wrote an amicus brief for the Missouri Supreme Court on behalf of several Catholic hospital sponsors in the case of Nancy Beth Cruzan, a young woman in a persistent vegetative state whose family wanted to remove the feeding tube that was keeping her alive. Before joining the Seton Hall faculty, Professor Coleman was the Executive Director of the New York State Task Force on Life and the Law, during which time he became nationally known as an expert on bioethical issues. All of the Church documents discussed in this article can be found on the Web pages of The Holy See, United States Catholic Conference of Bishops or Catholic Health Association of the United States. This discussion also draws from an article by Daniel Sulmasy, M.D., O.F.M., which recently appeared in the JOURNAL OF LAW, MEDICINE & ETHICS, and a timeline of the Schiavo case located at which provides links to all of the judicial decisions in the case. 18 Seton Hall University School of Law

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