Executive and legislative actions after 9/11 demonstrate a shift in the way the federal government combats terrorism. Traditional law enforcement entities have been given new powers, and military and intelligence personnel have taken on a new prominence. Criminal prosecutions are still being brought against persons suspected of terrorist activity, but the government seems less willing to accord criminal trials a central role in anti-terror efforts. In short, we are seeing the creation of a “new criminal process” for terrorism, a process that in many cases bypasses federal courts and operates wholly outside the territorial boundaries of the United States.

All of these actions, moreover, react to the perceived emergency created by the 9/11 attacks. Government officials have argued that a state of emergency exists and – critically – that it is unclear when the emergency will end. Other public figures and the media have largely agreed. “Everything has changed” has become the common theme, and the new criminal process provides a legal ratification of that change – a legal structure for a state of emergency.

This essay considers the new criminal process and the perception of emergency out of which it grows from a variety of angles. Although I think the federal government has shifted too far in favor of military and other solutions to terrorism at the expense of traditional criminal processes, my position rest upon a chain of reasoning and a baseline that the new criminal process contests. That deeper contest and its implications are the focus of this essay. To that end, I describe the attributes for the new criminal process, and provide the arguments for and against the traditional and new criminal processes. I also consider the legality of the new criminal process and conclude that it comports with constitutional norms (which may say more about the malleability of constitutional norms than anything else).

The underlying assertion of this essay is that the new criminal process may not be so new. Rather, it may be the latest step in a broad shift in our approach to governing, where pervasive authority is increasingly valued over the constraints of law. This change brings with it modification and dilution of rights, but also the possibility of their expansion within the context of also-expanded state power. Nor is this change occurring without justification. Terrorism is a real policy issue, and rational, liberal-minded people support increased state power to counter the threat. Be that as it may, the critical point is that we are experiencing the modification of the processes by which our government investigates and imposes punishment on people, and the fact that some of these processes arise in the context of the war on terror means, not that those processes are about fighting terrorism, but rather that those processes – the new criminal process – inevitably will and have already begun to generalize.


Civil Rights and Discrimination | Constitutional Law | Criminal Law | Criminal Procedure | International Law | Jurisdiction

Date of this Version

September 2005