Eisgruber '83 contends U.S. government must respect rights of accused terrorists

University professor Christopher Eisgruber '83, director of the Wilson School's Program in Law and Public Affairs, gave a lecture yesterday on the rights of accused terrorists before a capacity crowd in Bowl One of Robertson Hall.

In the lecture, titled "What Rights do Terrorists Have?" he evaluated the Bush administration's position on the legal status of accused terrorists.

A well-known constitutional theorist, Eisgruber examined the legality of the Executive Order issued by Bush last November mandating that accused terrorists could be tried before military tribunals instead of civilian courts.

"Although terrorists are undoubtedly horrible people who commit horrible acts," said Eisgruber, "[constitutional rights] are not normally reserved for nice people."

Though the Bush administration has argued that terrorists simply do not "deserve all the legal niceties available to ordinary citizens," Eisgruber said the courts have typically upheld the constitutional rights of non-citizens. He said the Constitution generally refers to "persons" and not "citizens."

Eisgruber said that by arguing terrorists do not "deserve all the legal niceties available to ordinary citizens," the government runs the risk of illegally prosecuting a person who might be innocent. He highlighted several recent cases in which suspected terrorists were released once it was established they were innocent.

Eisgruber continued by discussing the Bush administration's more legalistic arguments to justify the use of military tribunals. He said the Bush administration has relied heavily on one historical precedent for this practice. In the 1942 "Ex parte Quirin" case, the Supreme Court upheld the convictions and executions of a number of accused German saboteurs who were arrested in the United States and tried as "illegal combatants" by military tribunals.

Eisgruber said there are several reasons why the Quirin case was not an appropriate precedent for the Bush administration's current position. He pointed out the accused Germans admitted to being enemy belligerents. By contrast, Eisgruber said, accused terrorists are likely to plead ignorance and to claim they are legal immigrants.

For this reason, Eisgruber said it would be necessary to make an extension to the reasoning in that case to justify the current position on terrorists. He also claimed that the Quirin decision provided no justification of the use of tribunals beyond historical practice.

Eisgruber went on to argue there is an important distinction between prisoners of war and accused terrorists that might justify a difference in treatment.

After a war ends, soldiers are expected to go home and lead normal lives, to "cease murderous activities," he said.

These terrorists, on the other hand, "seem to relish the killing of innocents," Eisgruber said, so there is no reason for anyone to expect that they will simply go home and lead normal lives. "Terrorists are more dangerous than other criminals" because of the scale of their crimes, he claimed, which could justify a difference in treatment.

Get the best of the ‘Prince’ delivered straight to your inbox. Subscribe now »

Eisgruber maintained, however, that accused terrorists should have the protection of criminal law. To explain his evaluation, he cited the 1990 Supreme Court decision in the "Coy v. Iowa" case.

In this case, the court ruled the placement of a screen between an accused child molester and his victim was a violation of the constitutional rights of the accused, but left open the possibility for exceptions in special circumstances.

He suggested a similar practice be put in place for accused terrorists. "Until duly convicted, terrorists are entitled to the same degree of constitutional protection given to child molesters by Scalia," he said. He suggested certain exceptions to normal trial procedure be made in "extraordinary circumstances," but argued this should only be allowed after an independent judge had determined it to be necessary.

In closing, Eisgruber continued to emphasize the importance of upholding the constitutional rights of the accused. "This is a matter of giving due respect to principles of liberty and to the principles underlying our constitution," he said.