Newswise — On Dec. 5 (Wednesday), the U.S. Supreme Court will be asked whether federal judges have jurisdiction to hear cases brought by detainees held at Guantanamo Bay, Cuba. Two Indiana University School of Law professors weigh in on the issue.
Professor Dawn Johnsen: "The Supreme Court should take this opportunity finally to declare that the detainees the U.S. government has been holding at Guantanamo Bay for more than five years have a constitutional right to habeas corpus review. The essential purpose of this longstanding and fundamental safeguard, which the Founders wisely included in our Constitution, was to protect against precisely what has occurred here. Habeas corpus review allows a court to ensure that the government truly does have a lawful basis for imprisoning someone -- regardless of how awful the charges. It is long past time for the Court to require the Bush Administration to comply with this constitutional safeguard."
Johnsen served in the Office of Legal Counsel in the Department of Justice (1993-98), including a period as head of that office (the acting assistant attorney general, from 1997-98), where she advised the president, the attorney general, and the general counsels throughout the executive branch on questions of law. Her research includes separation of powers and, especially, presidential power. She teaches Constitutional Law, the First Amendment, and seminars on Congress, the President and the Courts, and Sexuality, Reproduction and the Constitution.
Professor Patrick Baude: "This isn't really about the prisoners. The question before the Supreme Court is whether the Constitution will be interpreted by elected officials or by the courts. I think this is another version of whether our rights are protected by the rule of law or by elections. The answer is obvious to me. I hope it will be equally clear to the justices. I don't feel at all secure or blessed by liberty if my rights are no more than what politicians say they are. Only after we answer that question can we turn to the next one, which is what those rights actually are. The answer to that is not at all obvious to me."
The Ralph F. Fuchs Professor of Law and Public Service, Baude teaches Constitutional Law, Federal Jurisdiction, and the Legal Profession. Active in the legal community, he has been a special counsel to the Office of the Governor of Indiana and is a member and past president of the Indiana Board of Law Examiners. He occasionally handles test cases in the state and federal courts, including the U.S. Supreme Court. A noted scholar, Baude has recently published a book on the constitutional foundation of the federal court system -- Judicial Jurisdiction (Praeger Press 2007).
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