In today’s Wall Street Journal, the editors lament the number of law centers cropping up at law schools, where students and faculty dedicate their time to working on behalf of the Guantanamo detainees. I don’t see anything wrong with such clinics, in fact I think they provide a valuable service –just as criminal defense clinics do.
However, I do agree with the editors conclusion that some balance and diversity in curricular offerings may be in order. Interestingly, Andy McCarthy noted that when The Foundation for the Defense of Democracies files an amicus brief “it goes on top of a three-inch pile. Against that is a 20-foot stack of thick amicus [briefs] written by everyone from the American Civil Liberties Union to [Yale Law School Dean] Harold Koh.” In fact, I attended oral arguments in Boumediene and this fact was made strinkingly clear by the number of attorneys sitting in the audience who had some role in authoring a brief on behalf of detainees. (An interesting academic question is whether the party with more amicus briefs benefits, or if amici who are not lost in a “20 foot stack” stand a better chance of being heard).
Now I do have to disagree with one part of the editorial, the part which notes that no law schools are working on behalf of the government. At least for a period of time a former colleague and I did in fact teach a course in which students worked on behalf of the government (albeit very loosely). The course was offered at the Case Western Reserve University School of Law. In the course we supervised students who worked on semester long research projects sent to us by the Chief Prosecutor for the Department of Defense Office of Military Commissions. The students loved the course in which they provided independent legal research for the prosecutors. Their legal research support was independent in that the memorandums they wrote were balanced and legally accurate (objectivity forced on them by the instructors) and not just what the prosecutors wanted to hear (in fact the students had no contact with the prosecutors other than receiving their assignment which came through the professors).
The course was an excellent opportunity to explain to students how their job as an attorney will oftentimes force them to tell their client something they may not want to hear. Great lessons for students who will someday find themselves advising government officials who have a certain policy outlook, corporations with a set business plan who want the lawyers to “sign off on it” or a commander whose view of proportionality is different than the Geneva Conventions may allow. I’m not sure if the course is still offered, but such programs are certainly hard to launch, especially when one considers the stigma associated with providing any support to the government side in Guantanamo or other terrorism related programs, no matter how independent your research. (Consider Jack Goldsmith’s experiences).
