Thursday, February 8, 2018
Wadie E. Said (University of South Carolina School of Law) has posted Limitless Discretion in the Wars on Drugs and Terror (89 Univ. Colo. L. Rev 93 (2018)) on SSRN. Here is the abstract:
The wars on terror and drugs have been defined, largely, by what they lack: a readily identifiable opponent, a clear end goal, a timeline, and geographical boundaries. Based on that understanding, this Article discusses the increasingly expansive discretion of American authorities to prosecute individuals where the wars on terror and drugs intersect. Through laws such as the Maritime Drug Law Enforcement Act, the ban on providing material support to foreign terrorist organizations, and the narco-terrorism statute, the United States exercises a kind of universal jurisdiction to pursue anyone, anywhere it believes its laws are being violated. Wielding the power of federal criminal prosecution on a global scale is a natural result of characterizing the anti-drug and anti-terror campaigns as “wars,” yet with such power comes essentially limitless police and prosecutorial discretion. However, such a broad jurisdictional scheme risks exporting several of the most unjust and ineffective practices of both the war on terror and the war on drugs, which threaten to impact disproportionately minority communities, based on impermissible factors like race and religion. Specifically, this Article compares the war on drugs to the war on terror, arguing that the paradigm of fighting terror has led to a war model that deeply informs the complexities and shortcomings of the war on drugs. The phenomenon is one we should not ignore or downplay, as the vast discretion enjoyed by law enforcement and prosecutors to charge individuals with no ties to the United States represents an expansion of the reach of American laws that needs to be understood and more thoroughly debated. As a matter of public policy and constitutional interpretation, courts should be wary of broad assertions of discretion to fight wars of dubious provenance. While the United States, as a sovereign nation, can pursue its interests in stopping trafficking in narcotics and political violence against its own citizens, those interests must be defined more narrowly, lest the country transform into a sort of world police force without an international mandate.