Who Is a "Terrorist"? Drawing the Line Between Criminal Defendants and Military Enemies

The threat of terrorist attacks by al Qaeda and other transnational terrorist organizations is a constant topic of public discourse in th United States. Despite its prominence, the nature of that threat is notoriously diffcult to define. On the one hand, terrorists might be compared to other kinds f organized, dangerous criminals who should be prosecuted and punished using e 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.