Exporting Harshness: How the War on Crime Helped Make the War on Terror Possible

46 Pages Posted: 20 Aug 2008 Last revised: 16 Oct 2009

Date Written: July 24, 2009


This Essay responds to a consensus that has formed among many opponents of the Bush administration's prosecution of the war on terror. The consensus narrative goes like this: America has a long-standing commitment to human rights and due process, reflected in its domestic criminal justice system's expansive protections. Since September 11, 2001, President Bush, Vice President Cheney, former Defense Secretary Rumsfeld, and their allies have dishonored this tradition.

It is too simple, I suggest, to assert that the Bush administration remade our justice system and betrayed American values. This Essay explores the ways in which our approach to the war on terror is an extension - sometimes a grotesque one - of what we do in the name of fighting the war on crime. By pursuing certain punitive policies domestically, I suggest, we have become desensitized to the harsh treatment of criminals. Revelations of abuse, therefore, are less likely to move us. In part for this reason, despite the mounting evidence regarding secret memos, inhumane prison conditions, coercive interrogations, and interference with defense lawyers, the Bush administration's approach to the war on terror remains largely unchecked and unchanged.

I pursue this thesis by focusing on five specific areas in which our domestic criminal system has influenced how we fight the war on terror: 1) the scope of our prison complex, 2) prison conditions and prisoner abuse, 3) our harsh treatment of juveniles, 4) attacks on judicial authority, and 5) undermining the role of defense counsel. I conclude by suggesting that the very metaphor of war - whether on crime, drugs or terror - helps explain our enthusiasm for harsh tactics.

Keywords: criminal law, torture, prisons, juveniles, war on terror, war on crime, prison conditions, right to counsel, Guantanamo

JEL Classification: K14, K40

Suggested Citation

Forman, Jr., James, Exporting Harshness: How the War on Crime Helped Make the War on Terror Possible (July 24, 2009). New York University Review of Law & Social Change, Vol. 33, p. 331, 2009, Georgetown Public Law Research Paper No. 1242154, Available at SSRN: https://ssrn.com/abstract=1242154

James Forman, Jr. (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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