Terrorizing Justice: An Argument that Plea Bargains Struck Under the Threat of "Enemy Combatant" Detention Violate the Right to Due Process

Abstract

As part of the War on Terror, the President has detained certain individuals as "enemy combatants"—a form of military detention that is preventive, non-criminal, and of indefinite duration. Some terrorism defendants appear to have pled guilty to criminal charges in order to avoid being detained as enemy combatants. This Note argues that plea bargains induced by threats of enemy combatant detention do not arise from the normal give-and-take of plea bargaining, create serious public policy concerns, and serve no societal interests that could not be served equally well by other means. It therefore concludes that the courts should hold such plea bargains per se unenforceable under the Due Process Clause of the Fifth Amendment.