32 Pages Posted: 10 Apr 2011
Date Written: April 5, 2011
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.
Keywords: Constitutional Law, Terrorism, Guantanamo Bay, Speedy Trial, Due Process, National Security
Suggested Citation: Suggested Citation
Kuhn, Walter E., The Speedy Trial Rights of Military Detainees (April 5, 2011). Syracuse Law Review, Vol. 62, 2011. Available at SSRN: https://ssrn.com/abstract=1803681