Thursday, April 21, 2011
Walter E. Kuhn (United States Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Human Rights) has posted The Speedy Trial Rights of Military Detainees (Syracuse Law Review, Vol. 62, 2011) on SSRN. Here is the abstract:
The hybrid nature of the War on Terror is testing the limits of the Speedy Trial and Due Process Clauses. Former military detainees have been convicted in federal court years after their crimes and capture. Setting aside the wisdom of civilian detainee trials, they have thus far proven consistent with constitutional delay protections.
The courts have correctly determined that military detention generally does not trigger the protections of the Speedy Trial Clause. Absent unusual circumstances, judicial scrutiny of delay due to military detention should occur via the Due Process Clause, which allows for operational flexibility while safeguarding against bad faith by the government. The administration should continue to try detainees when possible, with the venue depending on the nature of the case, and be mindful of the potential for precedent established in civilian detainee trials to govern ordinary criminal cases.