Article: The Speedy Trial Rrights of Military Detainees

In Washington, debate roils on about whether terrorism suspects should be tried by military commission, Article III courts, some combination of the two, or not at all.  The Obama administration’s highest profile decision to hold a civilian terrorism trial on American soil—that of Khalid Sheikh Mohammed (KSM) and his September 11 co-conspirators—was met with popular[1] and congressional[2] resistance and ultimately rescinded.[3]  Another Guantanamo detainee, Ahmed Ghailani, was transferred to the Southern District of New York, convicted of a single count of conspiracy to destroy government buildings and property, and sentenced to life in prison.[4]

United States v. Ghailani[5] tested the government’s ability under the Sixth Amendment Speedy Trial Clause and Fifth Amendment Due Process Clause to move military detainees to the civilian justice system after a delay of many years.  While the near-acquittal in Ghailani may freeze criminal trials of long-term military detainees for the foreseeable future,[6] eventually there will be further attempts to bring such prosecutions,[7] whether by President Obama or one of his successors.[8]  As the politicization of terrorism law and policy continues and perhaps even intensifies, more terrorism suspects may be moved between the military and civilian justice systems.  Just as the Bush administration focused its efforts on military commissions and the Obama administration on civilian trials, future Republican and Democratic presidents will be inclined to try terror suspects in their preferred venue.  As a result, there may be more cases like Ghailani in the future, with a defendant who has been transferred to the civilian justice system after spending years in military custody.

This Article examines the Sixth Amendment speedy trial rights[9] and related Fifth Amendment due process rights[10] of criminal defendants who were detained by the military as part of the War on Terror.  I argue that the government should prosecute detainees by either military commission or criminal trial where possible, with the venue depending on the nature of the case.  In criminal cases, the Speedy Trial Clause does not apply to periods of military detention absent unusual circumstances, and judicial scrutiny should occur primarily through the Due Process Clause of the Fifth Amendment.  While defendants carry a higher burden under the Due Process Clause, the determinative factors under both Fifth and Sixth Amendment analysis are the reason for the delay and the resulting prejudice to the defendant.

Part I of this Article examines the arguments for and against trying military detainees as a threshold question.  Part II discusses the nature of the Sixth Amendment Speedy Trial Clause and its interaction with the Fifth Amendment Due Process Clause.  Part III inspects the Barker v. Wingo[11] test for determining whether there has been a violation of Speedy Trial Clause and its application in Ghailani, United States v. Padilla,[12] and potential future detainee cases.  Finally, Part IV more broadly discusses the benefits and dangers of transferring terrorism suspects between the military and civilian justice systems and adjusting existing criminal law to meet the particular needs of terrorism.

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Walter E. Kuhn: Minority Chief Counsel, United States Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Human Rights.  J.D. Duke University School of Law, 2006; B.A, University of North Carolina at Chapel Hill, 2003.

[1]. See Lydia Saad, Americans at Odds With Recent Terror Trial Decisions, Gallup (Nov. 27, 2009), (discussing a poll showing that a majority of Americans believed that Khalid Sheikh Mohammed should be tried by military commission outside of New York City, and were “very concerned” or “somewhat concerned” that a trial would give KSM a forum to further his cause).

[2]. Eighteen senators introduced an amendment to deny the Department of Justice funding for the trials, but it failed to attract the sixty votes necessary in November 2009.  See Kasie Hunt, Senators try to block KSM trial, Politico (Feb. 2, 2010),  There was press speculation that if offered again, the legislation may receive enough votes for passage.  Michael Isikoff, No KSM in NYC?, The Daily Beast (Jan. 16, 2010),

[3]. Anne E. Kornblut & Peter Finn, Obama advisers set to recommend military tribunals for alleged 9/11 plotters, Wash. Post, Mar. 5, 2010, at A01.

[4]. Benjamin Weiser, Ex-Detainee Gets Life Sentence in Embassy Blasts, N.Y. Times, Jan. 25, 2011, at A18.

[5]. See generally 751 F. Supp. 2d 515 (S.D.N.Y. 2010).

[6]. See Jack Goldsmith, The Ghailani Sentence, Lawfare (Jan. 25, 2011), (“I doubt the Ghailani verdict points the way for more civilian trials of GTMO detainees in the near future.  There don’t seem to be that many cases that the administration thinks it can win in civilian court.  But more importantly, this verdict won’t change congressional resistance to such trials, and the President is unlikely to expend political capital in a presidential election cycle to reverse this resistance.”).

[7]. Evidencing the administration’s intention to try detainees criminally in the future, Attorney General Eric Holder reiterated his general support for Article III terrorism trials after reversing his decision to try KSM and his co-conspirators in New York.  Attorney General Eric Holder, Address at the American Constitution Society Convention (June 16, 2011), available at  Further, the administration transferred Ahmed Abdulakir Warsame to New York for criminal trial after a short period of military detention following his capture in the Gulf of Aden.  Charlie Savage, U.S. Tests New Approach to Terrorism Cases on Somali Suspect, N.Y. Times, July 7, 2011, at A10.  Members of the Senate Judiciary Committee also sent Attorney General Holder a letter expressing concern about the potential criminal trial of Ali Mussa Daqduq, a detainee held in United States custody for years in Iraq.  Letter from Senators to AG Holder: Prosecute Senior Hezbollah Commander Before Military Tribunal (May 17, 2011) available at

[8]. In the short-term, the 2011 National Defense Authorization Act prohibited the use of fiscal year 2011 Department of Defense funds to transfer Guantanamo detainees to the United States, despite protest from President Obama and Attorney General Eric Holder.  Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. No. 111-383, § 1032, 124 Stat. 4137, 4351 (2010); Press Release, President Barack Obama, Office of the Press Secretary, Statement by the President on H.R. 6523 (Jan. 7, 2011), available at (“Section 1032 [barring the use of funds to transfer detainees into the United States] represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees.”); see also Peter Landers, Congress Bars Gitmo Transfers, Wall Street J., Dec. 23, 2010, at A2.

[9]. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”).

[10]. U.S. Const. amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law.”).

[11]. 407 U.S. 514, 530-33 (1972).

[12]. No. 04-60001-CR-COOKE (S.D. Fla. Apr. 3, 2007) (denying motion to dismiss indictment for speedy trial violations in derogation of Sixth Amendment rights).

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