On September 11, 2001, Al Qaeda operatives attacked civilian and military targets on US territory, causing thousands of deaths and billions of dollars in economic loss. On September 12, the United Nations Security Council unanimously adopted Resolution 1368 characterizing the attack by Al Qaeda as a "threat to international peace and security" and reiterating the right of states to use armed force in self-defense. NATO, for the first time in its history, invoked the obligation of collective self-defense under Article 5 of the NATO Treaty. On September 14, the US Congress passed the Authorization for the Use of Military Force, authorizing the president to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks." Terrorism, conceived until then as crime, was reconceived--as war.
Much of the debate on US counterterrorism policy has centered on the appropriate roles of the law of war and the criminal law in the detention of individuals engaged in armed attacks against the United States. In fact, however, neither "war" nor "crime," alone or in combination, provides an adequate conceptual or legal model for responding to the threat currently posed by al Qaeda and its affiliates. The following sections identify the scope and limits of the criminal law and the law of war for these purposes, and then present a legal framework for counterterrorism detention that both integrates and supplements the two.
The Merits and Limits of Counterterrorism Law
Criminal justice is the appropriate legal vehicle for handling the bulk of terrorist activity. The criminal law is not, however, the appropriate mechanism for preventing the most serious forms of terrorist attack, those that threaten cataclysmic harm. A grounding premise of the criminal law is that a society can tolerate some rate of serious crime. There is, however, no tolerable rate of the most serious forms of terrorism, which may include catastrophic nuclear, biological, or chemical attack, or a concerted series of conventional attacks that is cumulatively catastrophic. Counterterrorism directed to the prevention of high-magnitude terrorist attacks rests on a set of assumptions critically different from those of the criminal law. The question is one of the grounding premises of the enterprise. While a Justice Department official might speak proudly of "the low rate of crime last year," he would not speak proudly of the "low rate of nuclear attack"--unless it were zero.
Well known evidentiary and procedural problems limit the value of prosecution for counterterrorism. But the most fundamental problem--unpleasant to articulate--is the standard of proof. Criminal conviction requires proof beyond a reasonable doubt. That standard should not be eroded. Nor, however, should it be applied to the prevention of high-magnitude terrorism. Is it really smart to release an individual shown by "clear and convincing evidence" (the standard, one step below "reasonable doubt" used in civil cases) to have attempted a nuclear attack or a release of smallpox virus? If the answer is no, then criminal law is not the right tool for preventing catastrophic terrorism. This incompatibility should not be taken to mean that criminal justice is an inappropriate tool for counterterrorism. Terrorism is not monolithic. Only its most virulent forms warrant a departure--an inevitably costly departure--from the balance struck, and the safeguards afforded, by the criminal justice system.
The law of war cannot rescue us here. Law of war is comprised of "jus ad bellum," governing resort to the use of force, and "jus in bello," governing conduct in the use of force, Jus ad bellum clearly permits the use of force by a state in responding to armed attack by a transnational, private actor such as Al Qaeda. But jus in bello offers no definition of the category of individuals subject to such detention, and specifies no procedures for their identification. …