The Tensions Between 'Criminal' and 'Enemy' as Categories for Globalized Terrorism James Griffith The New School for Social Research ABSTRACT: This paper examines the tensions at play in three important documents involved in the 'war on terror': the "Application of Treaties" WhiteHouse Legal CounselMemoof 2001, the "National Security Strategy" document of 2002, and the 2004 Supreme Court decision Hamdi v. Rums feld. Reading these documents, itbecomes clearthat there is an overarching misunderstanding and confusion of the traditionallyseparate concepts of 'criminal' and 'enemy' in the struggle against globalized terrorism. In his concurring opinion for Hamdi v. Rumsfeld, Justice David Souter clearly lays out the tensions between the tendency toapproach the acts ofglobalized terrorism as criminal acts and as acts of an enemy: Fornow it is enoughto recognize that the Government's stated legal position in its campaign against the Taliban (among whom Hamdi was allegedly captured) is apparently atodds with its claim here tobeacting inaccordance with customary law of war and hence to be within the terms of the Force Resolution in its detention of Hamdi. In a statement of its legalpositioncited in its brief, the Governmentsays that 'the Geneva Convention applies to theTaliban detainees.' Office oftheWhite House Press Secretary, Fact Sheet, Status ofDetainees atGuantanamo (Feb. 7,2002), www.whitehouse.gov/news/releases/2002/02/20020207-13.html (as visited June 18,2004, and available in the Clerkof Court'scase file) (hereinafter White House PressRelease) (cited in Brief for Respondents 24, n. 9). Hamdi presumably is such a detainee, since according to the Government's own account, hewastaken bear ing arms on the Taliban side of afield of battle in Afghanistan. He would therefore seem toqualify for treatment asa prisoner ofwarundertheThird Geneva Conven tion, to whichthe UnitedStatesis a party.Article 4 of the GenevaConvention(III) Relative to the Treatment of Prisoners of War, Aug. 12,1949, [19551 6 U.S.T. 3316, 3320, T. I. A. S. No. 3364. By holding him incommunicado, however, the Government obviously has not been treating him asa prisoner ofwar, and infact theGovernment claims that no Taliban detainee is entitled to prisoner of war status. See Brief for Respondents ©2006. International Journal ofApplied Philosophy 20:1. ISSN 0738-098X. pp. 107-