New Article (and February 2015 Symposium) on Prosecuting Military Detainees in Civilian Courts

Hot off the e-presses, the published version of my Cardozo Law Review article on “Terrorism Prosecutions and the Problem of Constitutional Cross-Ruffing” is now available online. As readers may recall, the article looks at some of the unique (and generally underexplored) criminal procedure questions that arise and have arisen from prosecuting military detainees in civilian criminal courts, both on the front end (e.g., unlawful arrests; pretrial military detention; Rule 5 and presentment; Miranda; and speedy trial issues); and the back end (especially the possibility that a defendant will be returned to military detention after an acquittal or completion of his sentence). As the article explains, “Federal courts have only just begun to grapple with these questions. And, at least thus far, they have imposed few (if any) constraints upon the government’s ability to “cross-ruff”—that is, to use military and law enforcement authorities together in a manner that avoids the restrictions that would attach if a detainee were subjected exclusively to one of those paradigms.” The harder question is whether courts should impose restrictions on such “cross-ruffing,” and, if so, how. (The article suggests that a relatively modest way to avoid abuses of these authorities is to (1) allow detainees to litigate prior military detention even after transfer to civilian criminal custody; and (2) incorporate cross-ruffing concerns into speedy trial analysis.)

Although I hope the article is a useful reference in identifying these problems, I also suspect it will be overtaken by events–especially the upcoming Journal of National Security Law & Policy Symposium, to be held at Georgetown University Law Center on Wednesday, February 11, 2015. This year, JNSL&P is devoting the day to “Trials and Terrorism: The Implications of Trying National Security Cases in Article III Courts,” including separate panels on the pre-trial procedural and substantive concerns that arise in such cases; the actual trial procedures in high-profile terrorism cases; and the small but growing body of jurisprudence concerning sentencing in terrorism prosecutions. I’ll post more details on the lineup for the day, but it’s shaping up to be a pretty fantastic event, with current and former senior federal prosecutors, defense attorneys, leading academic experts, and sitting federal judges. Stay tuned… 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).