The threat of terrorist attacks by al Qaeda and other transnational terrorist organizations is a constant topic of public discourse in the United States. Despite its prominence, the nature of that threat is notoriously difficult to define. On the one hand, terrorists might be compared to other kinds of organized, dangerous criminals who should be prosecuted and punished using the federal criminal law. On the other hand, terrorists might be compared to enemy soldiers engaged in warfare against the United States. There are problems with either approach, however, because the threat posed by al Qaeda and other transnational terrorist organizations is substantially different from both paradigmatic criminal activity and paradigmatic military conflict. Accordingly, it is far from clear whether alleged terrorists should be treated as criminal defendants or military enemies. The definitional problem is made even more complicated by the reality that the terrorist threat has many components. The organization itself, such as al Qaeda, is a danger. So too are the leaders, commanders, and strategists who plan and manage plots to carry out terrorist attacks, and the operatives and agents who commit or try to commit them. Many other individuals play roles in terrorist activity, as well. Some individuals may assist in the preparations for an attack by providing weapons, bombs, information, or surveillance. Other individuals might provide safe houses, transportation, or financing to those involved in a planned attack, but have no direct role in the actual anticipated violence. Finally, some individuals may support the overall objectives of the terrorist group with money or other general resources, yet have no personal involvement in, or even knowledge of, any particular plan to carry out specific terrorist acts. Are all of these individuals "terrorists" because of their involvement, at some level, in the activities of al Qaeda or another transnational terrorist organization? Are only some of them "terrorists" and others not, and potentially subject to differential treatment based on their level of participation? Most importantly, which of these individuals are properly deemed military enemies subject to military authority, including identification as targets of military force, detention as military prisoners, and prosecution in military proceedings? Likewise, which of these individuals must be deemed criminal defendants subject to prosecution and punishment under criminal law in civilian courts? The U.S. federal criminal law and the international laws of war provide alternative models for answering these difficult questions. The criminal model presents one framework for defining the threat of terrorism, primarily focused on the prosecution and punishment of individuals for their alleged terrorist 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. Each model provides options for pursuing the dual objectives of preventing terrorist attacks from occurring and punishing individuals involved terrorism, whether one plans or commits acts of terrorism or supports the operations of terrorist organizations. Yet in their currently existing forms, neither model is adequate to fully address the nature of the threat posed by al Qaeda and other transnational terrorist organizations. The criminal and military models each provide insights into the nature of the terrorist threat, identifying particular aspects of the problem that most closely resemble their respective paradigms. Each model also has shortcomings in defining the threat. Both models struggle to balance the relative importance of personal conduct and group affiliation, assessing the dangerousness and culpability of individual terrorists and the broader organizations of which they are a part. Thus, neither model, standing alone, adequately addresses all aspects of the problem. The solution is to combine the criminal and military models into an integrated model for defining the threat of al Qaeda and other transnational terrorist organizations. This new model identifies which individuals with involvement in or connections to terrorists should be treated as criminal defendants and which individuals should be deemed military enemies subject to military authority. In doing so, this integrated model pursues the dual objectives of prevention and punishment by using the insights of the criminal and military models to compensate for their respective shortcomings. It balances the importance of personal conduct and group affiliation by reserving the most substantial consequences for activities dependent on direct, personal involvement. An integrated model also can fully account for the particular dangers that exist because al Qaeda is a form of organized armed force, and the substantial implications that fact holds for the nature of the terrorist threat. This integrated model concludes that most individuals involved in terrorism should be treated as criminal defendants, and that only the most dangerous direct participants should be deemed military enemies. Through this analysis, the integrated 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.
Benjamin J. Priester, Who is a Terrorist - Drawing the Line between Criminal Defendants and Military Enemies, 2008 UTAH L. REV. 1255 (2008).