How do we define terrorism?

Last week’s shootings at Fort Hood have once again raised a seemingly simple question;

How do we define terrorism?

In the wake of the 2009 Fort Hood shootings, the Army and White House were hesitant to classify the tragedy as terrorism. Instead, the attack was labeled an incident of workplace violence, much to the disappointment of survivors and their advocates. In an article published earlier this week, The New York Times points out that the “t-word” was carefully avoided in reference to both Fort Hood shootings, but quickly associated with last year’s Boston Marathon bombings.

The issue, however, is not simply one of semantics. The Times article misses a crucial and rudimentary point. Terrorism is a statutorily defined term, and in the case of the 2009 Fort Hood shooting, the government determined that the perpetrators’ acts simply don’t fit within the confines of the law. The problem, therefore, is not that we lack a definition of the term, it is that each act of terrorism is so dramatically different from those that came before it that we lack a well-structured system of analysis to apply when designating an event “terrorism.”

Under 18 U.S.C.  § 2331, domestic terrorism is defined as activities which include the following three elements:

1) Involve acts dangerous to human life that violate federal or state law;
2) Appear intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
3) Occur primarily within the territorial jurisdiction of the U.S.

Without question, both attacks at Fort Hood include involved acts dangerous to human life that violated both federal and state law and occurred within the territorial jurisdiction of the U.S., easily meeting the first and third elements of the definition.

The second element is where we enter the legal gray area, and it is apparent that, in classifying the acts (specifically in 2009, as the official designation has not yet been released for last week’s attacks) the government’s analysis weighed against a “terrorism” classification. It would be difficult to classify these attacks as intended “to intimidate or coerce a civilian population.” They occurred on a military base, and the intended targets were clearly military personnel. The next step would be to examine whether the acts were intended to affect the policy or conduct of the government through intimidation or violence.

There was much debate over whether to classify the 2009 shooting as terrorism or another act of violence. Ultimately, it was decided that there simply wasn’t enough evidence to classify the 2009 acts as terrorism. While this classification is particularly important to the victims of the attack and their families, as it warrants a higher level of monetary compensation and makes victims eligible for accolades like the Purple Heart, the inherent problem lies in the way our legal system operates.

The law is, without question, broad and leaves ample room for interpretation. In most situations, the standards for the law would be developed through precedent set by earlier case law, honing and narrowing the definition, and creating standards and tests to determine what does and does not fall within the confines of the law. Situations of terrorism and/or mass violence, as prevalent as they may seem, happen far less often then a “routine” crime, for example, a murder. Our legal system has dealt with so many murders, encompassing seemingly every possible scenario or fact pattern one could concoct, that we have a concrete knowledge of what evidence is needed to prove a murder, the various standards to apply, and how they can change the outcomes in a case.

Each potential terrorism case, however, is dramatically different. Fort Hood is different from the Boston Marathon, which was different from September 11th, etc. While we can develop general guidelines to help determine when a terrorism analysis might be appropriate, it is nearly impossible to develop concrete and specific rules and standards to apply in each case. Instead, lawmakers apply what we call in the legal world a totality of the circumstances analysis, examining all of the evidence at their disposal and determining whether, based on the evidence at hand, the scenario can be classified as terrorism.

The decision to classify the 2009 Fort Hood shootings as workplace violence, and thus withholding the benefits of a terrorism designation from the tragedy’s victims and their family members, therefore highlights a flaw in the system; it is based too much on human analysis, and not enough on concrete, evidentiary standards. Had the analysis been performed by a different group of lawmakers, the outcome may have been a terrorist designation. The law leaves too much room for interpretation, and has not been narrowed by precedent or case law. The problem is not the lack of a concrete definition of terrorism, as many media outlets have insinuated in recent weeks, it is instead a flawed system of analysis and lack of concrete evidentiary standards and procedures to use in classifying an act as terrorism.

Kelly Ann Taddonio, Senior Research Fellow
Center for Policy & Research

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