Monday, May 5, 2014
Anthony O'Rourke (State University of New York (SUNY), Buffalo, SUNY Buffalo Law School) has posted Extrajudicial Detentions and the Speedy Trial Right: Reflections on United States v. Ghailani on SSRN. Here is the abstract:
This paper reviews the decision of the United States Court of Appeals for the Second Circuit to uphold the conviction and sentence of Ahmad Khalfan Ghailani, the only Guantánamo detainee to have been transferred to the United States for trial. Ghailani was captured nearly five years before his arraignment, and argued that his constitutional right to a speedy trial was violated by the delay. The paper contends that, in rejecting Ghailani’s argument, the Second Circuit distorted the doctrinal framework governing speedy trial claims and mischaracterized the interests that the speedy trial right is intended to protect. It also explores the implications of the Second Circuit’s decision for cases in which the government asserts a national security interest in postponing a defendant’s prosecution while continuing to hold the defendant in custody. Finally, the paper offers an interpretation of the Supreme Court's speedy trial jurisprudence that deters, rather than incentivizes, the decision to hold individuals in detention for reasons unrelated to the criminal adjudication process.