Who Is A 'Terrorist'? Drawing the Line Between Criminal Defendants and Military Enemies

Abstract

This paper confronts and answers the difficult definitional questions raised by the threat of Al Qaeda and other transnational terrorist organizations. Are terrorists analogous to other kinds of organized, dangerous criminals who should be prosecuted and punished using the federal criminal law? Or are they equivalent to enemy soldiers engaged in warfare against the United States? There are problems with either analogy because the threat posed by Al Qaeda and other transnational terrorist organizations has substantial differences from both paradigmatic criminal activity and paradigmatic military conflict. Thus, it is far from clear whether alleged terrorists should be treated as criminal defendants or military enemies. The paper first approaches these questions through a direct comparison between the alternative models of U.S. federal criminal law and the international laws of war. The criminal model presents one framework for defining the threat of terrorism, primarily focused on the prosecution and punishment of individual alleged terrorists for their activities. The military model offers another framework, emphasizing the dangers posed by an organized armed force engaged in planning and carrying out acts of war. Examining each model on its own terms reveals that, in their current forms, neither model is adequate for fully addressing the nature of the threat. The paper then argues that the solution is to combine the criminal and military models into a new, integrated model for defining the threat of Al Qaeda and other transnational terrorist organizations. The integrated model uses the insights of each model to compensate for their respective shortcomings. In doing so, it accounts for the particular dangers which exist because Al Qaeda is a form of organized armed force, and the substantial implications that holds for the nature of the terrorist threat. At the same time, it balances the importance of personal conduct and group affiliation by reserving the most substantial consequences for activities dependent on direct, personal involvement. The integrated model concludes that most individuals involved in terrorism should be treated as criminal defendants, and only the most dangerous direct participants should be deemed military enemies. Through this integrated analysis, the new model resolves the problems with the existing criminal and military models and fully addresses the threat posed by Al Qaeda and other transnational terrorist organizations.