Faculty, Students Write Amicus Brief Challenging Standards on Torture

By Ken Reitz

Deena Hurwitz Stephen Smith  E-mail    Print

When Haitian refugee Emmanuel Dalegrand found himself before a U.S. immigration judge in Pennsylvania who had just ordered him deported to his native Haiti, things could not have looked worse. Having fled Haiti during the turmoil that followed the downfall of the Duvalier regime 25 years earlier, his parents and sister victims of the violence there, the 45-year-old Dalegrand was now without a family, home, or country.

His case came to the attention of Sital Kalantry, director of the human rights clinic at Cornell Law School, who represented Dalegrand in his appeal to the Third Circuit. Since Dalegrand would be sent to Haiti as a criminal deportee, Kalantry believed he risked torture in Haiti’s infamous prison system, an argument that provided the legal basis for the appeal. Kalantry asked Deena Hurwitz, director of the Law School’s International Human Rights Law Clinic, if she would contribute an amicus brief supporting Dalegrand’s claim.

Aaron Esty Zach Williams

Hurwitz saw the case not only as an opportunity to further the cause of international human rights but, as a professor, she saw it as a chance for two Law School students to learn about the process of writing an amicus brief and to get a first-hand understanding of international human rights issues. Law students Aaron Esty and Zach Williams responded to Hurwitz’s request for help and were enlisted to research and help write the brief.

Hurwitz further sought the aid of her colleague Stephen F. Smith ’92, who teaches appellate advocacy at the Law School. Smith said two things attracted him to this case. First, “It’s important for all lawyers to do pro bono work. I drum that into my students at every available opportunity, and I practice what I preach.” Second, Smith is interested in the humanitarian crisis in Haiti and is a founding member of two different Haitian relief organizations.

“When I saw the opportunity to combine my interests in pro bono and advocating for Haitians, I jumped at it,” he said.

Prior to joining the faculty at the Law School, Smith practiced appellate litigation for eight years in Washington, D.C., before the Supreme Court and other federal appellate courts nationwide. Smith explained the appeals strategy: “[Dalegrand] claimed that it would violate the Convention Against Torture (CAT) to deport him to Haiti, and he can prevail on that claim only by showing that the pain and suffering he would likely endure in Haitian prison would be ‘specifically intended’ by Haitian officials.”

There is considerable controversy in both the courts and the Bush Administration as to what constitutes “specific intent,” Smith explained.

“We urge the Third Circuit to reject the restrictive definition of ‘specific intent,’ and hence ‘torture’ adopted in the Bush Administration’s infamous ‘torture memorandum’ as contrary not only to international law and the purposes of the CAT, but also the common law definition of specific intent and the Eighth Amendment standards,” he said.

The future for Dalegrand remains uncertain and it’s likely the case will not be heard for several months. Still, Smith is optimistic. “If the panel rules against petitioner—and we believe he should prevail—there will be the opportunity to seek review before the en banc court, and ultimately the U.S. Supreme Court,” he said.

Second Amicus Brief Supports Victims of Torture

Kerry Shapleigh and Germaine Dunn

Hurwitz, with help from Smith, has filed a second amicus brief, this time in an appeal to the Fourth Circuit, in a case that involves the alleged torture of Somali citizens by their own government 20 years ago.

Through lawyers working with the Center for Justice and Accountability, the plaintiffs, now living in the United States, sued former members of the Somali government, also now living in the U.S., under provisions of the Torture Victim Protection Act.

The judge found against the plaintiffs, citing provisions of the Foreign Sovereign Immunities Act (FSIA). The appeal is based on the idea that Congress did not intend the FSIA to shield those who may have committed crimes such as torture.

Second-year Law students Germaine Dunn and Kerry Shapleigh researched and helped write the brief as part of their work with Hurwitz’s International Human Rights Clinic. In addition to their other studies and with only a month to present the brief, Dunn said it was a “steep learning curve.”

Describing the essence of the brief, Dunn said, “The distinction is between not feeling that we [the United States] are meddling in the domestic affairs of another country, and realizing that torture is never OK.” Shapleigh added, “We’re saying that the people who commit torture are never protected by the FSIA.”

What impact can an amicus brief have in the appeals process? Smith argues the effect can be an important one.

“Too often the parties to the case focus narrowly on the facts of their own cases, which can leave judges in the dark about the broader implications of their rulings,” he said. “Amicus briefs can help fill that void in the appellate process by making sure judges understand the broader context from which the cases before them arose. It’s not uncommon for judges to cite amicus briefs at oral argument or in their opinions.”

Hurwitz pointed out that this brief involved a number of complicated issues that crossed legal boundaries and brought legal scholars together from across the nation. In all, 29 professors, including eight from the Law School, signed the brief. Hurwitz also credited the work of the two students as being vital to the effort.

“I’ve had really good experiences working with first-year students,” she said. “There were so many different pieces to this case, it was hard work.”

First-year student Williams found the experience challenging, but also rewarding. “It allowed me, very early in law school, to perform lawyer’s work while learning the analytic contours of legal thinking,” he said.

Second-year student Esty said he is now knowledgeable about laws regarding torture and hopes to work for a human rights organization after law school. He also had advice for fellow students who may hesitate to do pro bono work in school. “If you’re not involved with pro bono when you’re in school with some free time, how will you ever get involved when you’re working 85 hours a week?”