This clinic addresses human rights and civil liberties issues arising out of government policies in the aftermath of 9/11. Students enrolled in the course work on ongoing cases on behalf of persons affected by those policies: which varies from civil actions to habeas representations to amicus briefs on key questions at the appellate and Supreme Court levels. Students also participate in a weekly seminar to address the substantive, practical and ethical issues raised by the clinic’s cases and human rights impact litigation more generally. Over the last six years, the National Litigation Project (NLP) has engaged in virtually every emerging issue in the field, including the following:
• Power to detain people seized in the U.S. absent criminal charge. This issue, raised in the cases of Hamdi v. Rumsfeld and Padilla v. Hanft, remains only partly resolved by the Supreme Court. The NLP represented Jose Padilla, a U.S. citizen held without charge for nearly four years in a military brig, in his habeas petition, and, following his transfer to the criminal system, continues to represent Mr. Padilla in a damages action that seeks to settle the question of executive detention of U.S. citizens once and for all. The NLP has also filed amicus briefs in the case al-Marri v. Hanft.
• Rights of non-citizens held by the U.S. as enemy combatants outside the U.S. The NLP filed or assisted with several amicus briefs in the Supreme Court in the watershed cases Boumediene v. Rumsfeld and Rasul v. Bush. The NLP represents two individuals held without charge at Guantanamo Bay and is actively litigating the applicable procedures and substantive standards.
• Procedures used to assess guilt or innocence in military commissions. This issue arose in Hamdan v. Rumsfeld, in which the NLP filed amicus briefs, and the NLP has provided support to military defense counsel in the defense of a charged individual.
• Abusive use of immigration detention and deportation powers. Badrawi vs. Dept. of Homeland Security concerns a lawful immigrant who was arrested, placed into removal proceedings, jailed, held for two months, and ultimately removed from the United States despite still being in legal status. Immigration documents procured through numerous FOIA requests reveal that he was arrested in connection with a DHS program called “Operation Front Line,” which the government has not previously discussed publicly. The NLP is party counsel.
• Abusive use of the material witness arrest powers. This issue is raised in Al Kidd v. Gonzalez, pending in the U.S. District Court for Idaho, where the NLP serves as co-counsel.
• Extraordinary renditions (also known as “outsourcing torture”). The NLP has taken an active role in all litigations challenging this practice. The NLP filed an amicus brief in Arar (currently pending a petition for rehearing en banc before the Second Circuit), provided party support in el-Masri, and is co-counsel with the ACLU and others in Mohammed v. Jeppesen, the first case filed against a U.S. corporation for its role in the rendition program.
Individuals and organizations with whom the NLP has worked include: Madeleine Albright and former senior diplomats, the Cato Institute, People for the American Way, the Rutherford Institute, the ACLU, former U.S. government officials, former UN High Commissioner for Human Rights Mary Robinson, and other experts on the law of war, comparative law scholars, former prison wardens, and professors of evidence and civil procedure.
The clinic meets once a week as a class to discuss substantive issues, litigation strategy, and case developments, and smaller teams meet once a week to review their work with the team supervisors. The clinic is supervised by Harold Koh, Michael Wishnie, and Jonathan Freiman, with the assistance of clinical fellows Ramzi Kassem and Hope Metcalf.