This article is a much revised and expanded version of a working paper that I posted a year or so ago. This revised version argues that the war on terror has accelerated the development of a new criminal process and that this new process has increasingly displaced traditional methods of investigating, prosecuting, and punishing people who have engaged in conduct that is subject to criminal penalties - whether or not that conduct is considered terrorist or not. I also contend that this new process is largely consistent with constitutional norms that are changing under the same pressures that drive the development of the new criminal process. Those pressures, in turn, derive not just from specific events but also from the perception of emergency and rapid change that characterizes modern society and political life. Throughout the article, I treat the indefinite detention and trial by military commission of suspected terrorists as emblematic but not exhaustive of the new criminal process. Not only have these efforts been central to the Bush administration's anti-terror efforts, but they have also resulted in Supreme Court opinions - most recently the decision in Hamdan v. Rumsfeld - that bear on and to some degree constrain the development of the new criminal process. Despite their importance, however, these cases risk diverting attention from the ways in which the new criminal process has already expanded executive power, licensed state violence, and transformed the citizen-state relationship. My analysis is indebted to Michael Hardt and Antonio Negri's influential books, "Empire and Multitude," as well as to the pathbreaking work of Giorgio Agamben, whose "Homo Sacer" and "State of Exception" pose important challenges for liberal theory. Few U.S. legal scholars have made serious efforts to engage with this work. Nonetheless, these theorists say much that is useful about the nature and functions of law in modern states, and one of the goals of this article is to integrate their work with more familiar forms of legal analysis. Part II of the article describes executive and congressional actions in the war on terror to illustrate the ways in which anti-terror efforts have changed since 9/11. These aspects of the new criminal process provide a legal structure for implementing the idea that everything has changed. They codify a state of emergency, but the perception of emergency should not be equated with panic. Many of these new processes were carefully planned. And, although executive power has expanded, Congress has shown some willingness to second guess executive power claims and substitute its own judgment. The new criminal process is thus a deliberate, sturdy, and evolving construct for what are arguably exceptional times. The last section of part II considers the Supreme Court's response to some of these actions - a response that seeks with varying success to accommodate emergency claims with rule of law and due process values, but which in so doing also ratifies the idea of a war on terror. Part III makes a short detour by presenting a more policy oriented assessment of the strengths and weaknesses of the new criminal process as compared to traditional processes. It also suggests that the ability to choose between the two is becoming increasingly difficult. Part IV explains why that is through an examination of everyday constitutional criminal procedure doctrine, which reveals that doctrinal change has already brought us well down the road of the new criminal process. Part V concludes by discussing the relationship between the new criminal process and the idea of emergency power and suggesting that the new criminal process is simply part of a larger shift in state power and the practice of governing
