Document Type

Article

Publication Date

January 2002

Volume

25

Issue

2

First Page

593

Abstract

This article, published in a special post 9-11 issue of the Harvard Journal of Law & Public Policy, offers a defense of the view that terrorists such as Osama Bin Laden should be tried, if captured, outside of regular US civilian courts and in some form of military commission. The article argues that terrorists should be seen as criminals as well as enemies of the United States. Criminals who are simply deviants from the domestic social order are properly dealt with within the constitutionally constituted civilian court structure. Enemies who are not also criminals - legal combatants - are properly prisoners of war. Transnational terrorists are, however, best understood as both criminals and enemies - entitled neither to the full constitutional protections of the domestic political community but also not entitled to the protections as POWs.

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