Rightly Dividing the Domestic Jihadist from the Enemy Combatant in the "War against Al-Qaeda"-Why It Matters in Rendition and Targeted Killing

Article excerpt

Abstract

The confusion associated with comprehending fundamental legal concepts associated with how America conducts the "War on Terror" centers around the unwillingness of the U.S. government to properly distinguish al-Qaeda unlawful enemy combatants from domestic jihadi terrorists. If the American government cannot properly differentiate between an enemy combatant and a domestic criminal, it is little wonder that attendant legal positions associated with investigation techniques, targeted killing, arrest, detention, rendition, trial, and interrogation are subject to never-ending debate. While all al-Qaeda unlawful enemy combatants can be labeled as violent jihadists, not all violent fihadists are unlawful enemy combatants.

Without a significant about face in leadership that is willing to discern the basic difference between an unlawful enemy combatant and a domestic criminal, America's reputation will remain under a cloud of suspicion and confusion regarding the legality of our actions associated with two significant areas of critique: rendition and targeted killing vis-a-vis unlawful enemy combatants in the War on Terror.

CONTENTS

I. INTRODUCTION

II. DEFINITIONS

    A. Global Definition of Terrorism
    B. American Definitions of Terrorism
    C. Enemy Combatant Versus Unlawful Enemy Combatant
    D. Domestic Jihadist

III. MIXED SIGNALS--BLURRING THE LINE BETWEEN DOMESTIC
      JIHADIST AND UNLAWFUL ENEMY COMBATANT

IV. TARGETED KILLING V. RENDITION

VI. CONCLUSION

I. INTRODUCTION

"Decisions about who, where and how to prosecute have always been--and must remain--the responsibility of the executive branch."(1).

--Eric Holder

With the devastating terror attacks of September 11, 2001 by al Qaeda unlawful enemy combatants(2) on the United States, terrorism is no longer exclusively just another criminal offense to be investigated by the Federal Bureau of Investigation (FBI) and handed over to an Assistant U.S. Attorney for prosecution. (3) If the terror attack is carried out by an unlawful enemy combatant, the proper rule of law is not domestic criminal law, but the law of war. This simple common sense distinction is largely lost on a bilious sea of political and ideological distortion. Whatever else the eleventh anniversary of the al-Qaeda terror attacks of September 11, 2001 (4) signifies, it is unfortunate that well after the passage of a full decade there still remains great public confusion when it comes to comprehending fundamental legal concepts associated with how America conducts the War Against al-Qaeda,(5) more popularly referred to by the non-descriptive Bush-era phrase: "War on Terror."(6) While some may argue that the fault for this obfuscation rests with the lack of international consensus on relevant standards that should be adopted to deal with international terrorism(7) in asymmetric warfare,(8) or that the Bush-created phrase War on Terror itself is horribly vague,(9) the root cause of this so-called conundrum actually centers around the unwillingness of the United States government to properly distinguish al-Qaeda unlawful enemy combatant terrorists from domestic jihadi terrorists.(10)

Instead, the terms "domestic terrorist," "domestic jihadist," or just "terrorist" are frequently employed to describe all categories of actors--unlawful enemy combatants as well as common criminals-leaving both domestic and international audiences puzzled as to what should be the proper rule of law to apply to a given act of terror. If the American government cannot properly differentiate between an enemy combatant and a domestic criminal, it is little wonder that attendant legal positions associated with investigation techniques, targeted killing, arrest, detention, rendition, trial, and interrogation are subject to never-ending debate. For instance, one interesting and overriding issue that perplexes is not whether rendition or targeted killing is lawful against unlawful enemy combatants--they certainly are--but, why it is so difficult to discern the unlawful enemy combatant from the domestic criminal? …