[NudiJuicervich]

Because membership in a foreign organization is not a crime ... certainly not a crime over which the U.S. has jurisdiction. Thus, with respect to your run-of-the-mill al Qaeda terrorist for whom we have no evidence of the commission of a crime over which the U.S. has jurisdiction (such as an attack within the domestic territory of the United States or, possibly, on a U.S. citizen abroad), release would be mandated under a try or release policy. Obviously, you cannot win a war by letting your enemy walk. The whole idea is to render him hors de combat, i.e. out of the fight. Further, such a policy would encourage our soldiers to kill enemy they encounter rather than doing the more humane thing -- capturing them -- so as not to encounter them again in the field of battle. It's a fool's errand all around.

AQ is an international movement, and one that both seeks and has roots in the US. It's just as much domestic as it is foreign in that regard. That it specifically is engaged in attacking the US and its citizens is self-evident. Unless AQ would actively cease all dealings within the US and restrain all its criminal activities and purposes to non-US theatres and citizens, the US has jurisdiction over any person affiliated with AQ under the theories and type of laws I suggested earlier (conspiracy, vicarious liability, etc). In short, a movement can't be 'a little bit pregnant' with criminally conducting itself against the US...in for a penny, in for a pound.

As for dealing with a criminal wanted for such crime and in flight or fight, law enforcement authorises them to use deadly force using deadly force rules. So too does a battlefield soldier fighting a combatant, though. All have rules of engagement concerning use of force, including deadly force.

Characterising any AQ person as an 'illegal combatant' is IMO very counterproductive. Such categorisation was traditionally reserved for honourable adversaries in a valid conflict who generally violated rules of war relating to proper identification (spies, saboteurs, etc). They were not seen as criminal in the general sense but rather honourable warriors performing a certain common 'cheating' that carries penalties because the whole concept of having identifiable combatants versus civilians for conducting the rules of war would be placed in jeopardy.

John Andre and Nathan Hale, the respective British and US spies hanged for being so in the American Revolution? Yes. They were warriors doing their duty for their country and died doing so and are treated as war heroes today. That any local malignant person could decide to call himself AQ and put a bomb in a local restaurant, etc, and have himself deemed a warrior rather than a vile criminal is handing these murderous thuggish scum an honour they can use for propaganda against the US and others and one they don't earn or possess on the merits.