Analyzing the Defintion of Terrorism in the 21st Century

In 1995, Timothy McVeigh detonated explosives at a federal building in Oklahoma City, killing 168 people. By 1997, he was convicted on eleven counts, including charges under the terrorism chapter of the U.S. Code. [1] McVeigh’s bombing explicitly drew inspiration from a broad anti-government, right-wing movement which erupted into activity after the standoffs at Ruby Ridge, Idaho and Waco, Texas. [2] In McVeigh’s era, that is, the era before 9/11, an attack like this was charged as domestic terrorism, which the U.S. Code defines as an act of violence intended “to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, and to affect the conduct of a government by mass destruction, assassination, or kidnapping.” [3] The fact that McVeigh was prosecuted for domestic terrorism is significant, as it legally recognized that his bombing was politically motivated and that he committed violence in order to change the politics of the United States.  

From Charleston to El Paso, recent violent actions that are similar in politics, intent, and carried out by white, right-wing perpetrators are unrecognizable by law as terrorism; in our post-9/11 world, they are defined as hate crimes. [4] [5] How does this legal ‘sleight of hand’ transform these violent, political crimes? The law turns white supremacist violence from a violation of politics to a violation of morality. When politically motivated violence committed by alt-right violent perpetrators becomes a ‘hate crime,’ it mitigates an action intended to return the U.S. government to an “overtly racist regime” to a mere blip of individual morality. [6] Simultaneously, the hate crime charge relocates the targeted population, largely communities of color, to a position outside the “civilian population,” which the U.S. Code defines as the target of domestic terrorism. [7] [8]

Since 9/11, the government has committed to perpetuating this legal ‘sleight of hand’ when charging, or rather not charging, right-wing violent perpetuators with terrorism. Due to the broad definition of domestic terorrism in the U.S. Code, there is no specific crime that distinguishes an act of violence as politically motivated violence or terrorism. Instead, legal prosecution recognizes specific actions as terrorist-adjacent or terrorist-exclusive offenses. These include what we as a body politic imagine discreetly as terrorist: hijacking an airplane, assassinating an official, or bombing a public building, like Timothy McVeigh did. With the definition of terrorism as such, it reduces the importance of the specific intent of the crime and instead centers terrorist activty on stereotypical terrorist techniques. Notably, these techniques are not usually those employed in the long history of right-wing, white supremacist terrorism, from lynchings to mass shootings. 

In contrast, U.S. law defines a hate crime as any criminal offense, but especially homicide, kidnapping, or sexual abuse, which a perpetrator committed because of a victim’s “actual or perceived race, color, religion or national origin,” or a criminal offense which causes or attempts to cause bodily injury due to “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability.” [9] The hate crime definition differs because it classifies all violent offenses with specific intent as a hate crime, whereas identifying an act of violence as terrorism technically depends largely on the particular method of violence. Prosecutors argue that proving intent for acts of domestic political violence would be difficult, and that by focusing on specific characeristic acts of terrorism instead of intent, terrorism charges will not accidently “sweep in regular criminal activity.” [10]

But, in ignoring the intent of political violence, which of course is not difficult to reconstruct with the proliferation of white supremacist and far-right media outlets, chats, Reddit pages, and websites like 8chan, the law denies the reality that far-right perpetrators are committing terrorism in order to politically suppress, oppress, and terrify people who are legally supposed to be equal members of American society. For example, the hate crime designation reduces an act of racist violence to a crime of violent individual prejudice. But acting in violence to promote racism is to promote an alternative political system of white supremacy; a hate crime takes the objective of white supremacy and shifts it to be a moral failing or a cause of ‘race hatred.’ Racist acts are tied into institutional and political structures; they cannot be reduced to individual opinions or emotions like prejudice. 

In denying that politically motived white supremacist violence is, in fact, politically motivated, legal prosecution is essentially claiming that either white supremacy is not politics, or that white supremacy is not an intent that matters because it is not a real threat, or otherwise that we already live in a white supremacist state and therefore the violence is not political and trying to change the government. Or, this denial of political motive is asserting that the victims of white supremacist violence, i.e. communities of color, are not equal members of the “civilian population,” in which case we live in a white supremacist state.

Therefore, when an application of the terrorism charge ignores intent, the law also says that terrorism is not actually dependent on intent, and that it is just a collection of specific methods of violence, despite also technically defining terrorism as politically motivated. It is an illogical definition, one that both defines and negates that definition within the same code of law. It is possible that the law now defines terrorism based on its methods so that it can instead introduce a flexible statute. Arising after 9/11, this comparatively flexible interpretation of method can criminalize the race or religious statuses of Arab, South Asian, and Muslim as permanently and exclusively terrorist, a politically convenient and overtly racist practice. Consequently, the 9/11 attacks brought a problematic yet expectedly racist view of terrorism into the public and legal imagination. For example, in May 2003, the United States had detained over 5,000 ‘terrorists,’ yet, prosecutors only charged five of these detainees with terrorism. Since then, only one has been convicted. 

This legitimization of a status crime of terrorism even reached the Supreme Court in the case Ziglar v. Abbasi (2017). Defendants in Ziglar v. Abbasi were all Arab or South Asian men who were detained in a federal facility in Brooklyn after the 9/11 attack. In their appeal to the Supreme Court, they sought compensation for their detention via 42 U.S.C. §1983, which “entitles an injured person to money damages if a state official violates his or her constitutional rights,” a law practice called constitutional torts. [11] In this case, the Court found that the government “detained Abbasi et. al in harsh pretrial conditions for a punitive purpose, in violation of the Fifth Amendment, that petitioners did so because of their actual or apparent race, religion, or national origin, in violation of the Fifth Amendment, that the wardens subjected them to punitive strip searches, in violation of the Fourth and Fifth Amendments, and that the wardens knowingly allowed the guards to abuse them, in violation of the Fifth Amendment. Respondents also brought a claim under 42 U.S.C. §1985(3), which prevents certain conspiracies to violate equal protection rights.” [12] Yet, despite the Court finding “true the facts alleged in the complaints,” and therefore agreeing that race, religion, or national origin was the reason for the disparaging treatment and stigmatization of these Arab and South Asian men, they did not award Abbasi et. al constitutional torts. In declaring that Abbasi et. al were unjustified in claiming compensation, despite the admitted race, religion, and/or national origin discrimination and constitutional violations that they faced, the Supreme Court has essentially codified terrorism as a status offense. The Court has legitemized this legal criminalization of Arab and South Asian persons, implying that race and/or status is the necessary evidence to determine a person’s culpability of terrorism.

Additionally, terrorism as a status crime essentially creates a ‘group status’ that is necessary for the law to recognize a violent act as terrorism, not only reinforcing terrorism as a status crime reserved for Arab, South Asian, and Muslim people, but also reinforcing the inability for individual white terrorists to be seen as terrorists because they fall outside that group and into a group which is designated specific privleges, such as the privilege of free speech. According to Just Security, an online forum based out of NYU Law School, “the most common terrorism-related charge is material support for terrorism,” which includes activity, explicit commercial activity, and transactions with a designated terrorist organization. [13] With domestic terrorist groups, the law could find trouble in prosecuting or pursuing such actions, as some would argue that they are protected under the First Amendment or constitutional political speech. Therefore, such a group identity of hateful speech, like white supremacist speech, is given privelges due to its roots in whiteness and racism, rather than an identification with the terrorism that it perpetuates. 

And yet, of course, in reality right-wing terrorists are connected to extended white supremacist and far-right communities and thus should be part of a recognizable group. They take a different form than the stereotypical al-Qaeda: they are hidden in 8chan, the Daily Stormer, subReddits, and meme accounts. But they are terrorists: they advocate for “activities that involve acts dangerous to human life,” such as the El Paso shooter who released a manifesto on 8chan that advocated to “get rid of enough people” so that white America can divide the land into territories based on race. [14] By murdering specific populations that are American, from immigrants to Black church-goers, white supremacist perpetrators commit actions “intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion.” By calling to reorganize the United States into territories based on race, as the El Paso shooter did, violent perpetrators commit actions that “affect the conduct of a government by mass destruction.” [15] And of course, these actions all “occur primarily within the jurisdiction of the United States.” These parameters are all components of the definition of terrorism as outlined by the U.S. Code. [16] These alt-right online forums are new methods of organizing terrorists, as they are normalized and incorporated formats, but they need to be recognized for their terrorist nature.

Over the last decade, white right-wing terrorists were responsible for seventy-one percent of deaths in extremist-related killings; in fact, in 2009, the U.S. Department of Homeland Security identified and cautioned against the rise of “domestic right-wing terrorists.” [17] [18] Yet, legal prosecution has failed to identify white supremacists as terrorists, despite their politically violent actions unequivocally fitting the statutory definition of terrorism. In practice, terrorism is percieved as violent crimes committed by Arab and South Asian perpetrators, creating a crime specifically defined by a foreign and racialized other. Because of this discrepancy, it is increasingly important to remember that terrorism is a legal category. What should define someone as a terrorist is the wording in the legal code: someone who commits violence to threaten a civilian population and change the government, not their race, status, or a singular intent. The law should recognize all political violence as terrorism, but to do so, we need to expand our definition of political actions to include racism and to expand who we believe to belong to the American polity.

[1] United States v. Timothy James McVeigh, United States District Court for the District of Colorado (D.C. No. 96-CR-68-M) No. 97-1287.

[2] Sarah Pruitt, “How Ruby Ridge and Waco Led to the Oklahoma City Bombing,” History.com, October 19, 2018, https://www.history.com/news/how-ruby-ridge-and-waco-led-to-the-oklahoma-city-bombing.

[3] The Antiterrorism Act of 1990, 18 U.S. Code § 2331 (2018), https://www.law.cornell.edu/uscode/text/18/part-I/chapter-113B.

[4] United States v. Dylann Storm Roof, 2:15cr472, (S.C. 2015).

[5] Vanessa Romo, “El Paso Shooting Suspect Indicted on Capital Murder Charge,” NPR, September 12, 2019, https://www.npr.org/2019/09/12/760204851/el-paso-shooting-suspect-is-charged-with-capital-murder.

[6] George M. Frederickson, Racism: A Short History, (Princeton: Princeton University Press, 2002).

[7] The Antiterrorism Act of 1990, 18 U.S. Code § 2331. 

[8] The Matthew Sheapard and James Byrd Jr. Hate Crimes Prevention Act, 18 U.S. Code §249 (2009),  https://www.law.cornell.edu/uscode/text/18/249.

[9] Ibid. 

[10] Faiza Patel and Adrienne Tierny, “The Reasons Why Dylann Roof Was Not Charged with Terrorism,” Just Security, July 30, 2015, https://www.justsecurity.org/25071/reason-dylann-roof-charged-terrorism/.

[11] Ziglar v. Abbasi, 582 U.S. ____ (2017), Opinion, 6.

[12] Ibid., Syllabus 1-2.

[13] Faiza Patel and Adrienne Tierny, “The Reasons Why Dylann Roof Was Not Charged with Terrorism.”

[14] Nicholas Bogel-Burroughs and Katie Benner, “Minutes Before El Paso Killing, Hate-Filled Manifesto Appears Online,” New York Times, August 3, 2010, https://www.nytimes.com/2019/08/03/us/patrick-crusius-el-paso-shooter-manifesto.html.

[15] Ibid. 

[16] The Antiterrorism Act of 1990, 18 U.S. Code § 2331.

[17]  “Murder and Extremism in the United States in 2017,” Anti-Defamation League, accessed March 4, 2019, https://www.adl.org/resources/reports/murder-and-extremism-in-the-united-states-in-2017.

[18] U.S. Department of Homeland Security, “Assessment of Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment” (2009), https://fas.org/irp/eprint/rightwing.pdf.