Seton Hall Law School, Guantanamo Litigation, and “Bringing International Law Home”

The Newark Star-Ledger ran an article in its Sunday Edition on Baher Azmy, Mark Denbeaux, John Gibbons, and the Seton Hall Law School’s project on Guantanamo. As the article explains in its opening section:

John Gibbons, a retired federal judge who taught law at Seton Hall for 24 years, won a landmark ruling from the U.S. Supreme Court that prisoners captured in the war on terror cannot be jailed indefinitely with no chance to assert their innocence.

Students at the law school have produced an influential series of reports on Guantánamo. Among their findings: Despite repeated administration assertions that the Guantánamo terror suspects were the “worst of the worst,” only 8 percent were alleged to be al Qaeda fighters, according to declassified U.S. government documents.

The reports grew out of legal work on behalf of two Guantánamo detainees by Prof. Mark Denbeaux and his son, Joshua, a lawyer.

The law school has hosted two seminars — both simulcast via the Internet — on conditions at Guant ánamo. The most recent, held last month, focused on interrogation techniques.

“I’m not at all surprised they got heavily involved in this, be cause it’s the major constitutional problem in the country and has been for five years,” Gibbons said. “I’m not at all surprised that a law school faculty has said: ‘We have to uphold the rule of law.'”

See this webpage with links to the reports and other resources produced by the Seton Hall professors and students and also this post from guest blogger Kristen Boon.

Besides protecting the rights of the detainees, what the folks at Seton Hall have accomplished also relates to two claims that have been getting additional currency in legal academia. The first is about pedagogy: there is nothing like hands-on experience and law clinics are increasingly becoming more “international” in their scope. Yale Law School and NYU Law School were two well-known examples of “early adopters” of melding of international pedagogy and clinical experience. But the point is that now there are programs offering some level of international clinical experience at a variety of schools all across the country. And this is a very good thing for the teaching of international law.

The second claim isn’t about teaching, but about how law changes. Almost ten years ago, Harold Koh of Yale wrote an influential article called “Bringing International Law Home” (35 Houston Law Review 623 (1998)) which argued that transnational litigation can play a part in causing international law to be “internalized” in domestic legal systems. Many academics have picked up on this idea; of particular interest in relation to the Seton Hall project, Melissa Waters of Washington and Lee is presenting a paper at Temple Law School’s Colloquium on the role of professors as “norm entrepreneurs” before the U.S. Supreme Court. More generally, the idea of “norm portals,” by which domestic legal systems are open to the use of international law, has been a topic of recent articles by Opinio Juris’ Peggy McGuinness. And, as I’ll explain in a later post, I have an article coming out on the “transmission of norms” from the international system into domestic legal systems via the socialization of domestic lawyers and law professors through their involvement in certain types of litigation and arbitration (a newly revised version was just posted to SSRN).

It is encouraging to see another example of the theory actually being borne out by the facts. But, more importantly than that, congratulations to the faculty and students at Seton Hall Law for doing good.