Extrajudicial Detentions and the Speedy Trial Right: Reflections on United States v. Ghailani

22 Pages Posted: 25 Apr 2014 Last revised: 22 Jul 2014

Date Written: March 22, 2014


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.

Keywords: Ghailani, speedy trial, Barker v. Wingo, Sixth Amendment, criminal procedure, Guantanamo, extrajudicial detention, national security

Suggested Citation

O'Rourke, Anthony, Extrajudicial Detentions and the Speedy Trial Right: Reflections on United States v. Ghailani (March 22, 2014). SUNY Buffalo Legal Studies Research Paper No. 2014-027. Available at SSRN: https://ssrn.com/abstract=2427934 or http://dx.doi.org/10.2139/ssrn.2427934

Anthony O'Rourke (Contact Author)

University at Buffalo Law School ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States

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