Abstract

http://ssrn.com/abstract=896155
 
 

Citations (1)



 
 

Footnotes (324)



 


 



Coercion and Terrorism Prosecutions in the Shadow of Military Detention


Tung Yin


Lewis & Clark Law School


Brigham Young University Law Review, November 2006
U Iowa Legal Studies Research Paper No. 05-47

Abstract:     
In the war on terrorism, the Executive Branch has sometimes opted to use the criminal justice system to prosecute defendants for terrorism-related offenses; and at other times, it has opted to use military force to kill or capture so-called enemy combatants. Arguably, the Executive Branch should be given discretion to choose which approach to use depending on the particular circumstances. Overseas actions might call for military force, while domestic terrorism might call for prosecution (and, upon conviction, punishment).

However, military detention is especially harsh, with conditions of confinement worse than those in maximum security prisons, and much uncertainty abounds as to the procedural rights accorded to military detainees - even ones who are U.S. citizens. As a result, the Executive Branch may be able to extract (and may already have extracted) guilty pleas from terrorism defendants by threatening them with military detention if they do not plead guilty.

In this Article, I argue against unilateral Executive Branch power to transfer criminal defendants into military detention, precisely because of the opportunity, whether intentional or not, for the government to profit from the coercive potential of such transfers. I use blackmail theory to show why such government conduct should be prohibited, and I use the doctrine of vindictive prosecution to show that a constitutional mechanism already exists for courts to protect defendants against coercive actions by prosecutors.

Number of Pages in PDF File: 67

Keywords: detention, terrorism, coercion, War on Terror, military detention, blackmail, constitutional law, criminal procedure, confinement

JEL Classification: K14, K33, K42

Accepted Paper Series





Download This Paper

Date posted: April 12, 2006  

Suggested Citation

Yin, Tung, Coercion and Terrorism Prosecutions in the Shadow of Military Detention. Brigham Young University Law Review, November 2006; U Iowa Legal Studies Research Paper No. 05-47. Available at SSRN: http://ssrn.com/abstract=896155

Contact Information

Tung Yin (Contact Author)
Lewis & Clark Law School ( email )
10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,856
Downloads: 167
Download Rank: 105,591
Citations:  1
Footnotes:  324

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.360 seconds