This article aims to offer a solution for prosecuting terrorists consistently and efficiently in the ever-expanding world of modern warfare. It argues that our country's approach to prosecuting terrorists has been wildly inconsistent, and that clarity and consistency are required moving forward. The executive branch, which directs the path the Department of Justice and military take in these arenas, has been the main instigator of the inconsistency. The decision whether to prosecute foreign, non-citizen terrorists in an Article III federal court or military tribunal/commission has become politicized, allowing political winds to dictate policy, albeit an inconsistent, unprincipled one. The Bush administration sought to prosecute terrorists in military commissions. Conversely, Barack Obama prefers Article III federal courts where procedure and due process are more prevalent. These inconsistent approaches, which have been more criticized than applauded, provided a band-aid approach for a bullet hole wound that is our country's recent, and potentially future, approach to the prosecution of terrorists. This paper argues for a common sense, two-pronged approach. First, treat combatant terrorists as combatant Prisoners of War, prosecuting them in military commissions while treating non-combatant, domestic terrorists as such and prosecute them in Article III federal courts under domestic criminal law. Second, modernize the law of war so that it is applicable to the extremely different and constantly evolving realities of combat and war in the world today.
Alexander Fraser, For the Sake of Consistency: Distinguishing Combatant Terrorists from Non-combatant Terrorists in Modern Warfare, 51 U. Rich. L. Rev. 593 (2017).