Terrorism Prosecutions and the Problem of Constitutional 'Cross-Ruffing'

Under current U.S. law, certain terrorism suspects are potentially subject to both military detention and civilian criminal prosecution if and when they are apprehended by the United States. This result may seem wholly unsurprising in light of the hybrid approach the United States has pursued with respect to combating the threats posed by al Qaeda and its affiliates — relying simultaneously on the very separate legal regimes governing uses of military force and ordinary law enforcement. But the flexibility available to the government by combining these historically distinct paradigms in individual cases raises a host of thorny legal questions; the implications of which have not adequately been explored.For example, should a detainee’s time (and treatment) in military detention have any bearing on his subsequent criminal trial, whether with respect to presentment, speedy trial rights, Miranda rights, or other procedural protections? Should the means by which the detainee is captured have any bearing on what happens thereafter? Should the detainee have the right to collaterally attack his military detention even once it has ceased? And, perhaps most controversially, would anything prevent the government from returning a detainee to military detention upon either his acquittal or the conclusion of his prison sentence?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” — 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. In Part I of this Article, I aim to explain why, under current law, these decisions are unsurprising, and this pattern therefore likely to continue — with the government being able to utilize its military detention authorities to delay, perhaps indefinitely, the onset of particular procedural protections that would otherwise attach to criminal terrorism prosecutions.Part II turns to the harder question: Insofar as constitutional “cross-ruffing” is a problem, or at least might be at some future point, what, if anything, can (and should) be done to solve it? As Part II explains, there are two different moments at which “cross-ruffing” could best be regulated: The first is prior to a criminal trial, at which point one solution is to reconceive of when pre-trial delays should be charged to the government for purposes of the Sixth Amendment’s Speedy Trial Clause (along with when such delays prejudice the defendant). The second moment is after an acquittal or the end of a prison sentence, at which point an analogous solution would be to read into the Due Process Clause limits on whether and under what circumstances the defendant may be returned to military detention.To be sure, neither of these solutions is perfect. But if nothing else, the problem of constitutional “cross-ruffing” is one that is not likely to go away anytime soon — especially so long as the United States continues to pursue such a hybrid approach to preventing and punishing transnational terrorism by groups such as al Qaeda and its affiliates.