Rights and Discretion in Criminal Procedure's 'War on Terror'

Abstract

The premise of this essay is that the modern administrative state's need for discretion and flexibility and its tendency to govern through emergency have a discernable impact on the structure of criminal procedure doctrine in the United States. The current War on Terror that fully emerged after September 11, 2001 increases the desire for discretion and flexibility and influences the course of doctrine, but it has not changed doctrine in any fundamental way. Building on that premise, my goal is to explore how the development of criminal procedure doctrines over the last three decades or so reflects and assists a way of governing a state and its citizens, a process that responds to but also transcends particular events such as the War on Drugs or the War on Terror. In the approach to criminal procedure doctrine that I sketch, flexible but meaningful rights are integrated into flexible but professional police practices, with the goal of allowing careful calibration by private individuals and government officials of the various interests that are at play in a modern, liberal, administrative state.

Keywords: criminal procedure, constitutional law