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Understanding Terrorism Cases |
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Johnson v. Eisentrager Talking Points
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Johnson |
Eisentrager |
| Citizen and Alien Distinctions 1. There is a legal distinction between citizens and aliens. The rights and liberties safeguarded by the Constitution are not protected to the same extent for aliens as they are for citizens. |
Citizen and Alien Distinctions 1. The legal distinction between citizen and alien does not apply in this case. For instance, several portions of the Bill of Rights, including the Fourth and Fifth Amendments, protect "persons" and not just citizens. |
| Friendly and Enemy Alien Distinction 2. There is a distinction between friendly aliens and enemy aliens. Friendly aliens (persons who owe allegiance to countries with which the United States has normal diplomatic relations) have historically been able to avail themselves of this country's courts while enemy aliens (persons who owe allegiance to countries with which the United States is at war) have not. |
Friendly and Enemy Alien Distinction 2. As stated above, just as several portions of the Bill of Rights refer to "persons" and make no distinction between citizens and aliens, they also do not make any distinctions between friendly and enemy aliens. |
| Enemies' Use of the Courts 3. Is it logical to allow the enemies of this nation the use of its courts when (1) this could be of benefit to the enemy, i.e. a enemy alien could win a monetary award against the our government, and (2) there is no guarantee (or expectation) that the enemy will react in kind to our aliens in its territory? |
Enemies' Use of the Courts 3. The facts of this case do not merit the government's concerns. The convicted German nationals were accused of an offense after the war was over; therefore, their actions could not have benefitted the enemy. Even if the facts were different and their trial were held during hostilities, fundamental fairness requires that persons accused of war crimes and tried by the U.S. military be given the full protections of the Constitution. Otherwise, who checks the military? What if the military courts were simply kangaroo courts? Would their verdicts still stand? |
| Need for Effective Military Operations 4. In order for the military to be efficient, it must be allowed to conduct its operations, including war crimes prosecutions, unhindered by the oversight of U.S. civilian courts. |
Need for Effective Military Operations 4. Even in wartime, the U.S. military is subject to the constraints of the Constitution. Indeed, the Constitution gives the military its existence. Furthermore, since the military is a part of the federal government, the protections of the Bill of Rights apply to it as well. The protections of the Constitution should follow the flag. |
| Possibility of No Prosecution 5. Since war crimes are offenses agreed upon by the consensus of civilized nations, but not necessarily written down anywhere in U.S. statutes, if the military were required to try the convicted German nationals before a U.S. civilian court, they may be able to escape punishment since the federal courts do not have the authority to hear cases that are not federal crimes by statute. |
Possibility of No Prosecution 5. The convicted German nationals should not be penalized due to the fact that their "crime" may not exist under federal law. If their actions are not criminal under U.S. law, shouldn't they be released? Furthermore, is their crime - fighting on after the surrender of their country - any different from the actions taken by the French and Dutch resistance during World War II? Why do the allies not try those persons for war crimes? |
| Scope of the Court's Ruling 6. In order for the convicted German nationals to be granted habeas corpus relief, the Court must rule that (a) enemy aliens (b) who have never been in the United States, (c) who are captured abroad, (d) tried by a U.S. military commission abroad, (e) for offenses committed outside of the United States, and (f) serving their punishments outside of the United States (in essence, persons who have never had anything to do with this country) are entitled to the use of this nation's court systems. |
Scope of the Court's Ruling 6. So long as part of the United States' government interferes with the life, liberty, or property of an individual, regardless of how remote these interferences may be, the protections of the Constitution come into play. |
| Role of the Courts 7. If the Court were to grant habeas corpus relief to the convicted German nationals, the federal civilian courts may be flooded with petitioners from abroad challenging the legality of their imprisonments by the U.S. military; thus, undermining the military's ability to conduct war. |
Role of the Courts 7. It is the job of the courts to protect individuals rights and liberties and the fact that their workloads may be increased should have absolutely no bearing on this case. Moreover, why should the military not wish to abide by the Constitution, the document which it is fighting to protect and defend? |