Wednesday, December 16, 2009
This paper addresses the question of what impact the so-called “new security agenda against terrorism” has had on substantive criminal law in the United States. This question has a simple answer: None.
There is nothing new about the so-called War on Terror, except for a redesignation of its object, from Crime to Terror. The mode of governance, its essence as a “security agenda,” remains unchanged. The War on Terror is another, contemporary, manifestation of a mode of penal governance that regards itself as emanating from the sovereign’s power to police, understood here in the traditional sense of the power to maintain the peace, or, in Blackstone’s phrase, the sovereign’s power as “pater-familias of the nation” to see after “the public police and oeconomy,” i.e., “the due regulation and domestic order of the kingdom.” The security agenda against terrorism, in this sense, is neither “new,” nor can it have an “impact” on American criminal law, simply because it is American criminal law, and always has been.