Coercion and Terrorism Prosecutions in the Shadow of Military Detention

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