The Dual State Revisited: Non-State Combatants in US Law After 9/11

Abstract

The September 11, 2001, attacks fundamentally shifted how the United States treated terrorist organization members, creating tension between criminal law and the laws of war. This paper analyzes the evolution of the "enemy combatant" framework through the lens of institutional struggle between the executive, legislative, and judicial branches. It demon- strates that while federal courts progressively narrowed executive detention authority, transforming the broad "enemy combatant" designation into the more precise "unprivileged enemy belligerent" category, this evolution left a troubling duality unresolved. The United States maintains parallel legal frameworks for addressing terrorism: Article III crim- inal prosecution and military detention/targeting under the laws of war. Executive discretion to choose between these frameworks creates what Ernst Fraenkel termed a "dual state," where the government selectively applies whichever legal reality provides greater flexibility and fewer constraints. This discretion undermines both due process and inter- national law. The paper concludes by arguing for statutory reform to eliminate executive discretion in choosing between criminal and military approaches to terrorism.