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Debbie O'Leary
School of Law - Bloomington

Last modified: Friday, June 29, 2007

Guantanamo appeals: Experts available to comment

June 29, 2007

EDITORS: In a surprise reversal, the U.S. Supreme Court has agreed to review whether detainees can use the civilian court system to challenge their confinement to Guantanamo Bay. The Supreme Court took the highly unusual step of reconsidering a previous denial of certiorari in the Boumediene and Al Odah cases.

Presumably, Justices Anthony Kennedy and John Paul Stevens have come to view the Military Commissions Act of 2006 as unconstitutional. "Under Supreme Court rules, this requires five votes rather than the usual four required to grant certiorari," explained Indiana University law professor Craig Bradley. "Such a rehearing is to be granted only when 'intervening circumstances of a substantial or controlling effect' arise or there are 'substantial grounds not previously considered.' Here there is no suggestion as to what those circumstances or grounds might be. Rather it seems likely that Justices Kennedy and Stevens, who originally voted to delay consideration of this case pending a full decision from the D.C. circuit, reconsidered their earlier vote. Presumably they came to agree with the opinion of Justice Stephen Breyer, dissenting from denial of certiorari in April -- that the Military Commissions Act was unconstitutional in that it deprived petitioners' of the constitutional right to habeas corpus. Petitioners argued that further proceedings in the court of appeals under the MCA could not remedy a constitutional violation because the lower court had indicated that no constitutional rights extend to the Guantanamo detainees. Petitioners further argued that the military tribunals at Guantanamo were infirm because they denied petitioners counsel and access to evidence. At first blush, Breyer's argument seems correct and if the detention is unconstitutional, then the Supreme Court should act as expeditiously as possible to require that the detainees either be given ordinary criminal trials or released."

Bradley is the James L. Calamaras Professor of Law at the Indiana University School of Law--Bloomington. A former assistant U.S. Attorney and clerk for Justice William H. Rehnquist, Bradley is very familiar with foreign legal systems. He was an Alexander von Humboldt Fellow at the Max Planck Institute for Criminal Law in Germany and a Fulbright Senior Fellow at Australian National University. He lectured on criminal law and procedure throughout South Africa as a guest of Rand Afrikaans University in Johannesburg. His most recent book is Criminal Procedure: A Worldwide Study. He is editor and co-author of the upcoming book, The Rehnquist Legacy, to be published by Cambridge University Press in 2005. His teaching and research interests include constitutional law and criminal law and procedure.

He can be reached at 812-339-0423 or by e-mail at

High time to review this travesty of justice. According to Indiana University law professor Dawn Johnsen, the Supreme Court's decision to review the Military Commissions Act of 2006 is the right one. "The U.S. Supreme Court is to be applauded for agreeing to review whether the United States has unlawfully imprisoned individuals in Guantanamo Bay indefinitely -- already more than five years and counting -- without affording them access to the federal courts to challenge the legality of their detention," Johnsen said. "The Bush administration unilaterally began this travesty of justice. Congress facilitated it through enactment of the Military Commissions Act of 2006, which denies the basic right of habeas corpus review. The Supreme Court is absolutely right, now, to step in as expeditiously as possible -- after more than five years of unreviewed detention."

Johnsen is a professor of law and Ira C. Batman Faculty Fellow at the Indiana University School of Law--Bloomington. Her research includes constitutional law, the First Amendment and separation of powers. A former deputy assistant attorney general for the Office of Legal Counsel in the Department of Justice (1993-96) and acting assistant attorney general (1997-98), she is also a former staff counsel fellow of the American Civil Liberties Union (1987-88).

Johnsen can be reached at 812-339-4784 or 812-325-2637 or by e-mail at