T2 B7 Various Letters Fdr- Letter From Nicholas J Perry Re Article- The Numerous Federal Legal Definitions of Terrorism 659

8/14/2019 T2 B7 Various Letters Fdr- Letter From Nicholas J Perry Re Article- The Numerous Federal Legal Definitions of Terrorism 659

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9/11 Personal Privacy

March 25, 2004

Nat iona l Commission on Terrorist Attac ks Upon th e United States301 7th Street, SWRoom 5125Washington, DC 20407

Enclosed is an article I have w ri t ten concerning th e mu l t ip le de f in i t ions of terrorism tha tcurrently exis t in federal law. The article, "The Numerous Federal Legal Defin i t ions ofTerrorism: The Problem of Too M any Grails" has been accepted for publ ica t ion by TheJournal of Legislation, a law review publ i shed by the Notre Dame School of Law. Sincei t may not be publ ished fo r several months, I t hought th e Commiss ion m i g h t appreciate acopy.N o piece of publ i shed scholarship has examined th e different legal def ini t ions ofterrorism to the degree th e enclosed article does. It should be noted that several of the 22defin i t ions and descriptions of terrorism discussed in the article deal w i th defin i t ionsenacted after 9/11 and therefore would not relate directly th e Comm iss ion ' s miss ion .However, many of the definitions existed prior to the attacks, and the generalinconsis tency of terrorism defin ition s under federal la w existed lon g before tha t awfulSeptember day. Some, including a staff report from a congressional comm it teeinvest igat ing th e attacks, have concluded th e differences in defin i t ions are a barrier toeffective counter-terrorism. Those concerns are specif ical ly addressed on pages 34-35 ofth e article, an d impact all of Part IV . While th e Commission ca n reach its ownconclusion on degree of the problem caused by the differing definitions, th e enclosedart icle may assist th e Commission in evalua t ing th e nature of the problem.Al t hough I am an attorney with Im m i g r a t i o nan d Customs Enforcement of the U.S.Department of Homeland Security, it m u s t be emphasized tha t th e article an d this letterare solely my own and are not intend ed to represent the opinio ns of the D epartmen t ofHomeland Security, any of its components , or any other of its employees.

Nicholas J. Pe


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The Numerous Federal Legal Definitions of Terrorism:The Problem of Too M any Grailsby Nicholas J. Perry*"When all who were to take part in the Quest [of the Holy Grail] ha d taken the oath,those who were keeping the record found the tally to be one hundred an d fifty.. ."*

I. IntroductionThe search for a definition for terrorism has aptly been compared to the quest for

the Holy G rail by King A rthur's k nights of the Round Table, with "eager souls set[ting]out, full of purpose, energy and self-confidence, to succeed wh ere so ma ny others have

7 "5failed." Like defi nitio ns of terrorism, the "Holy Grail assumes m an y forms." Ho weve r,unlike the Grail Quest, where many sought the grail bu t only a few knights accomplishedthe quest,4 ma ny searchers hav e located a defin ition of terrorism. The different proposedscholarly and legal definitions of terrorism ar e more numero us than the 150 knightsseeking the grail, and definitio nal consens us has been at least a s elusive as the HolyGrail.

* Nicholas J. Perry (B.A. University of Notre Dame, 1990, J.D. North Carolina Central School of Law,1997, summa cu m laude) is an attorney with th e Department of Hom eland Security, Bureau of Immigrationand Customs Enforcement, El Paso, Texas. The opinions contained herein are solely the author's and dono t represent those of the Department of Homeland Security, any of its components, or any other of itsemployees.1 THE QUEST O F THE HOLY GRAIL 50 (P.M. Matarasso trans.) (1969).2 Geoffrey Levitt , Is 'Terrorism' Worth Defining?, 13 OHIO N.U. L. REV. 97, 97 (1986); see also id . ('Thesearch for a legal definition of terrorism in some ways resembles th e quest for the Holy G r a i l . ..."); OMARMALIK, ENOUGH O F THE DEFINITION O F TERRORISM xvii (2000) ("[T]he search for a single definition hascome to resemble the quest for the Holy Grail."); James A.R. Nafziger, The Grave New World ofTerrorism, 31 DENV. J. INT'L L. & POL'Y 1, 10 (2003) ("[A]n operation definition [of terrorism] remainsthe Holy Grail of the terrorism debate."); Henry H. Perritt, Jr., Jurisdiction in Cyberspace, 41 VlLL. L. REV.1, 119 (1996) ("Adequately defining 'political terrorism,' however, is the Holy Grail of political violencescholarship.").3 THE NEW ARTHURIAN ENCYCLOPEDIA 213 (Norris Lacy ed . 1996); compare A.T. Hatto, Forward toWOLFRAM V O N ESCHENBACH, PARZIV AL 7, 7 (A.T. Hatto, trans., 1980) ("[T]here were stories of as manydifferent Grails as there were writers or syndicates exploiting th e potent name."), with L. PAUL BREMER III,U.S. DEP'T O F STATE, TERRORISM AND THE RULE O F LAW 2 (1987) ('There are as many definitions [ofterrorism] around as there are definers.").4 In some versions of the Grail Quest three knights find the gr ail, se e TH E QUEST O F TH E HOLY GRAIL,supra note 1, at 282 -83, w hile other versions of the legend differ on the number an d name of the questachievers, see generally NEW ARTHURIAN ENCYCLOPEDIA, supra note 3, at 212-13.


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Federal law has provided numerous, although still fewer than 150,definitions ofthe term terrorism.5 This article examines twenty-two definitions or descriptions ofterrorism and related terms in federal law. Scholarly discussions on the difficulties ofdefining the term terrorism are examined in Part n. Part HI analyzes current definitionsof terrorism in federal law. Part IV discusses three possible alternatives to the num erousfederal definitions, namely maintaining the status quo,abandoning legal definitions ofterrorism, and am ending the current definition s into a single entity. The conc lusionargues for a single definition.

II . Scholarship on the Problem of Defining TerrorismThe scholarly literature on terrorism is "vast and ever expanding."6 Although

some scholars ignore the need for a definition of terrorism7 or resort to Justice Stewart'scomment on obscenity, "I know it when I see it,"8 many others join the definitional quest.

5 Although beyond the scope of this article, there is a similar lack of consensus in inte rnatio nal law. SeeLevitt, supra note 2, at 97-103; Michael P. Scharf, Defining Terrorism as the Peace Time Equivalent ofW ar Crimes: A Case of too much Convergence between International H umanitarian Law and InternationalCriminal Law, 1ILSAJ. INT'L & COMP. L. 391, 391 (2001) ('The problem of defining 'terrorism' hasvexed the international community for years."); Robert J. Beck & Anthony Clark Arend, "Don't Tread onUs": International Law and Forcible State Responses to Terrorism, 12 WlS. INT'L L.J. 15 3 (1994); ThomasM. Franck & Bert B. Lockwood, Jr.,Preliminary Thoughts Toward an International Convention inTerrorism, 68 AM. J. INT'L L. 69 (1974); see also United States v. Yousef, 327 F.3d 56, 106 (2d. Cir. 2003)("We regrettably are no closer ... to an international consensus on the definition of terrorism, or even itsproscription.").Beck & Arend, supra note 5, at 193. See JONATHAN R. WHITE, TERRORISM: AN INTRODUCTION 293-314(3d. ed . 2002) for a bibliography of terrorism scholarship; see also Ilena M . Porras, On Terrorism:Reflections on Violence and the Outlaw, 1994UTAH L. REV. 119, for an analy sis of themes in "terrorismliterature."7 WHITE, supra note 6, at 10; Levitt, supra note 2, at 97.8 Jacobellis v. Ohio, 378U.S. 184, 197 (1963) (Stewart, J., concurring); e.g., Aaron J. Noteboom,Comment, Terrorism: I know it when I see it, 81 OR. L. R E V . 553 (2002); H.H.A. Cooper, Terrorism: theProblem of Definitions Revisited, 44 AM. BEHAV. SCIENTIST 881, 892 (2001) ("As with obscenity, weknow terrorism well enough when we see it."); JEFFREY RECORD, BOUDING TH E GLOBAL WAR ONTERRORISM 9 (2003), available at http://www.carlisle.army.mil/ssi/pubs/2003/bounding/bounding.pdf ("Weknow a terrorist act when we see one . . . ."); James D. Fry,Comment, Terrorism as a Crime AgainstHumanity an d Genocide: Th e Backdoor to U niversal Jurisdiction, 7 UCL A J. INT'L L. & FOREIGN AFF.169, 181 (2002); Beck & Arend, supra note 5, at 161.


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however, is attributable to more than the nature of scholarship; more fundamentally, itreflects the nature of the term being defined , terrorism.

The definers d isagree on w hat should be included in a definition of terrorism.Schm id's 1983 study cataloged 22 different elements w hich appeared in more than one ofthe 10 9 definitions of terrorism, with on ly three elem ents, "Violence, Force," "Political,"and "Fear, Terror," appearing in at least half of the definitions.15 The vast majority ofdefinitions of terrorism contain some reference to the two most comm on componentsfrom Schmid's review, violence16 and a political purpose or motivation.17 Beyond thoseelements, there is wide-spread disagreement as to wh at components should be included ina definition. For example, some definitions include the targeting of "innocents" as adefinitional component,18 wh ile others criticize such an approach.19 Another area ofdisagreement is whether terrorism must be performed by a group, as opposed to anindividual acting wit ho ut organizational support.20 There ar e differences in the scholarly

paradigms.").S CH ME D , supra note 10, at 76-77. Schmid creates a de finition using 13 of the 22 elements. Id . at 111.16 Id . at 11. ("There is hardly a definition of terrorism [which] does no t contain the word 'violence.'");WALTER L A Q U E U R , T H E N E W TE RRORI SM 6 (1999) ("Perhaps the only charac teristic generally agreed uponis that terrorism always involves violence or the threat of violence."); Nafziger, supra note 2, at 9.17 M ALI K , supra note 2, at 52 ("General convention ha s long held that terrorism must have a politicalcomponent."); L A Q U E U R , supra note 9, at 143; SCH M I D , supra note 10, at 57; accord FlROOZ E . Z A D E H ,ISLAM VERSUS TERROR ISM 23 (2002) ("[I]t is difficult to leave the motiva tion out of the de finition [ofterrorism]."); Nafziger, supra note 2, at 9.18 See, e.g., Benjamin Netanyahu, Defining Terrorism, in TE RRORI SM : H o w T H E W E S T C A N W I N 7(Benjamin Netany ahu ed., 1986) ("W hat distinguishes terrorism is the willful an d calculated choice ofinnocents as targets. . . . Terrorism is the deliberate an d systematic murder, maiming, an d menacing of theinnocent to inspire fear for political ends."); see also Porras, supra note 6, at 122 ("Indeed, terrorism isoften defined in relation to the 'innocence' of its victims.").19 See, e.g., Theodore P. Seto, Th e Morality of Terrorism, 35 L O Y . L .A . L . R E V. 1227 , 1236-39 (2002);Franck & Lockwood, supra note 5, at 80; SCH M I D , supra note 10, at 79-80.

Compare BRUCE HOFFMAN, INSIDE TERRORISM 42-43 (1998) ("To qualify as terrorism, violence m ustbe perpetrated by some organizational entity with at least some conspiratorial structure an d identifiablechain of command beyond a single individ ual acting on his or her own."), an d M ALI K , supra note 2, at 18('There is a common reluctance to apply th e term 'terrorism' to the activity of an ind iv idual . . .." ), withYonah Alexander, Terrorism in the Twenty-First Century: Threats and Responses, 12 D E PAUL B U S . LJ.59, 65 (2000) ("[T]errorism is defined as the calculated employment or the threat of violence byindividuals, subnational groups, and state actors to attain political, social, and economic objectives in the


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writings on whether actions by governm ents should be included in the definition ofterrorism.21 Additionally, some argue that any definition of terrorism needs to fnclude acomponent excusing terrorism wh e n rendered for a jus t cause,22 while others criticizedefinitions that involve judgment of the cause.23

Several reasons for the lack of definitional consensus h ave been advanced interrorism scholarship.24 One of the more frequently cited reasons is the changing natureof terrorism.25 A prominent scholar of the topic has argued that "[n]o definition canpossibly cover all the varieties of terrorism that have appeared through history."26 Thedifficulties in defining terrorism caused by the changing nature of the term apply not onlyto the past but also to the future since, no definition can cover all of w h a t a prospective

violation of law, intended to create an overwhelming fear in a target area larger than th e victims attacked orthreatened." (emphasis added)). Legal de finitions of terrorism generally are not limited to group conductan d several ex plicitly include actions by individuals. See, e.g., 18 U.S.C. 921(a)(22)(A) (2000); 22U.S.C. 2708(j)( l) (2000); se e also United States v. Hicks, 99 7 F.2d 594, 59 9 (9 th Cir. 1993) ("AlthoughHicks was not a member of an organized group, w e conclude that th e district court did not clearly err infinding that Hicks' actions constituted 'terrorism.'").^Compare L A Q U E U R , supra note 9, at 146 (arguing against considering state actions as terrorism), withR ECOR D, supra note 8, at 7(arguing that state terrorism should be included in the definit ion), an dAlexander, supra note 20, at 65 (including "state actors" in the definition of terrorism). Se e also SCHMID,supra note 10, at 105 ("If a revolu tionary movem ent like the [N azis] in the 1920s, by a com bination ofterroristic, violent, and legal means manages to gain state power, and thereafter continues to wield powerwith a similar mix of methods, it would ar t i f ic ia l . . . to rebaptize th e terroristic methods into somethingdifferent for the period after 1933."),See, e.g., Beres, supra note 13, at 239 (The United States "should articulate an d apply a singleunambiguous standard that incorporates the requiremen ts of just cause and just means."); Seto, supra note19.23 See, e.g., SCHMID, supra note 10, at 100 ("[W]e can define terrorism withou t entering the value-laddenarea of moving causes."); B R E M E R , supra note 3, at 2; Netanya hu, supra note 18, at 12 ("[T]errorism isalways unjustifiable, regardless of the professed or real goals.").24 There is a large and growing subgroup of terrorism scholarship specifically related to the definitionaldifficulties. See, e.g., Levitt, supra note 2; Noteboom, supra note 8; Cooper, supra note 8; Charles R uby,The Definition of Terrorism, ANALYSIS OF SOC. ISSUES & PUB. POL'Y, 2002, at 9; BRIAN MICHAELJ E N K I N S , TH E STUDY OF TERR ORISM: DE FINITIONAL PROBLEM S (1980); see also MALIK, supra note 2, atxvii ("The search for a definition of terrorism ha s been long an d painful and is now l iving a separate life ofits own.").25 See, e.g., HOFFMAN, supra note 20, at 15 ("The most compelling reason p erhaps is because the meaningof the term ha s changed so frequently over the past tw o hundred years."); WHITE, supra note 6, at 3 ("[T]henature of terrorism ha s changed over the course of history."); ZADEH, supra note 17, at 29.

L A Q U E U R , supra note 9, at 11. For a discussion of the changes of terrorism throu gh history see id. at 11-23; HOFFMAN, supra note 20, at 15-28.


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terrorist might do.27The changing nature of the term through time is by no means the only reason fo r

the definitional difficulties. One recognized reason is reckless use of the term, especiallyin the media. Terrorism is a "loose label" which has been applied to the actions of

78various political extremists, as well as ordinary criminals. The careless use of theterminology has resulted in "loose thought on the subject."29

Probably the most significant reason for the lack of definitional consensus is thejudgmental nature of the word terrorism.30 As Cooper has observed, "The term'terrorism' is a judgmental one in that it not only encompasses some event produced byhuman behavior but seeks to assign a value or quality to that behavior."31 The very useof the word no t only describes an event bu t also gives a moral judgmen t on the act andthe actor, a moral judgment which is nearly un iversally negative.

The p ejorative n ature of the term is the one point upon w hich everyone seems toagree.32 To some, th is pejorative conno tation is the defining qua l i ty of terrorism:

With te rror ism, . . . everyone means th e same thing. W hat changes is not themea ning of the word, but rather the groups an d activities each person w ouldinclude or exclude from th e list. Everyone uses th e word 'terrorism' to mean akind of violence of which he or she does no t approve, an d about which he or shewants something done. The sense of the word always stays the same; it is the

27 J E N K I N S , supra note 24, at 10.28 Id . at 9-10; see also Beres, supra note 13, at 240 ("[T]he term has become so broad and so imprecise thatit embraces even the most discrepant activities.")-29 LAQUEUR , supra note 9, at 299; see also JENKINS, supra note 24, at 2 ("What we have, in sum, is thesloppy use of a word that is rather imp recisely defined to begin with.").See, e.g. WHITE, supra note 6, at 4 ("[T]errorism is difficult to define because it has a pejorativeconnotation."); see also RECORD, supra note 8, at 8 ("The definitional mire that surround s terrorism stemsin large measure from differing perspectives on the moral relationship between objectives so ught an dmeans employed."); ZADEH, supra note 17, at 29 ('The meaning of terrorist differs depending on who arethe individuals describing it, their m otives, an d when it is defined.").31 Cooper, supra note 12, at 106.32 HOFFMAN, supra note 20, at 31 ("On on e point, at least, everyone agrees: terrorism is a pejorative term.I t is a word with intrinsically negative connotations that is generally applied to one's enemies an dopponent's, or to those with whom on e disagrees an d would otherwise prefer to ignore.").


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referents that change.33The pejorative nature of the word terrorism gives power to those wh o can attach the termto others. "Use of the term [terrorism] implies a moral judgeme nt; and if one party cansuccessfully attach the label terrorist to its opponent, then it has indirectly persuadedothers to adopt its point of view."34 A person or group is politically an d sociallydegraded when described as terrorist,35 an d governments have labeled opponents"terrorists" in order to maintain power.36 The degradation of the label is, however, notalways permanent; at least three former or current leaders of groups once widelyconsidered terrorist organizations have been awarded th e Nobel Peace Prize: MenachemBegin of the Irgun,37 Nelson Mandela of the African National Congress,38 and YasserArafat of the Palestinian Liberation Organization.39

A related issue in the defin itiona l quest is the natura l desire not to use the term

33 Porras, supra note 6, at 124.34 J E N K I N S , supra note 24, at 1.35 WHITE, supra note 6, at 4.36 Se e Seto, supra note 19, at 1235 ("Conde mn ation of terrorism becom es m erely an instrum ent for thepreservation of existing power relationships."); WHITE, supra note 6, at 6 ("Governments can increase theirpower when they label opponents as 'terrorists.' Citizens seem more willing to accept m ore abuses ofgovernmental power when a counterterrorism campaign is in progress."); RECORD, supra note 8, at 8 ("It iseasy for the politically satisfied an d militarily powerful to pronounce all terrorism evil regardless ofcircumstance ....").37 Seto, supra note 19, at 1227-29. The Irgun was a Zionist orga nizatio n active in British-co ntrolledPalestine in 1940s responsible for, inter alia, th e bombing of the King David H otel in Jerusalem whichkilled 91 people. Id. See also WHITE, supra note 6, at 100 ("A Jewish terrorist organization called theIrgun Zvai Leumi launched a series of attacks against British soldiers an d Arab Palestinians."); L A Q U E U R ,swpranote 16 , at 23.38 Amy C. R oma, Note, Assassinations: Executive Orders an d World Stability, 36 SUFFOLK U. L. R EV . 109,135 (2002) ("In the past, the United States classified Nobel Peace Prize recipient Nelson Mandela as aterrorist, and had the African National Congress, th e movement to end apartheid, on its terrorist watchlist."); Makua Mutua , Terrorism an d Human Rights: Power, Culture, an d Subordination, 8 BUFF. HUM.RTS. L. RE V. 1, 9 (2002); see also S uresh v. Canada (M inister of Citizenship & Imm igration), [2002] 1S.C.R. 3, f9 5 ("Perhaps the most strik ing exam ple of the politicized na ture of the term [terrorism] is thatNelson Mandela 's African National Congress w as, during th e aparthe id era, routine ly labeled a terroristorganization, not only by the South African government but by much of the international community.").39 Beres, supra note 13, at 246-47; WHITE, supra note 6, at 144; see also ZADEH, supra note 17, at 28 ('Theterrorist of yesterday is the hero of today, and the hero of yeste rday becomes the terrorist of toda y.");L A Q U E U R , supra note 16, at 23 (referring to "the many cases of guerrilla or terrorist leaders having asecond, po litical career after their fighting days were over").


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terrorism to describe one's own actions or even actions of those on e approves, since"[tjerrorism is wh at the bad guys do." Events from Am erican history wh ich aregenerally praised, such as the Boston Tea Party, which helped trigger the AmericanRevolution and John B rown's anti-slavery raid on the federal arsenal at Harper's Ferrywould fall under many current definitions of terrorism.41 Since terrorism is pejorative,"the decision to call someone or label some organization 'terrorist' becomes almostunavoidably subjective, depending largely on whether one sympathizes with or opposesthe person / group / cause concerned."42 The subjectivity of the term has led to the oft-repeated43 and nearly as often criticized44 cliche, "One person's terrorist is anotherperson's freedom fighter."

40 JENKINS, supra note 24, at 1; se e also Cooper, supra note 8, at 884 ("It must be stressed th at there is abasic antimony here: W hat / do, however u npleasant, is not terrorism; wha t yo u do is terrorism."); BRIANCROZIER, TH E REBELS: A STUDY OF POST-WAR I N S U R R E C T I O N I S T S 168 (1960) ("Often enou gh, the victimof terrorism are 'us', whereas th e victims bombing raids are ' them.'"), quoted in SCHMID, supra note 10, at48 .41 Seto, supra note 19, at 1230; see also Louis Rene Beres, The Legal Meaning of Terrorism for theMilitary Commander, 11 CONN. J. INT'L L . 1, 3 (1995) ("Iron ically, using certain of the prevailingdefinitions of terrorism adopted by some U .S. governm ent agencies and some scholars, the Am ericanRevolution [would be an] example[] of ' terrorism.'"); WHITE, supra note 6, at 8 ("Ironically, some LatinAmerican revolutionaries who repressive friends espouse th e rights expressed in the U .S. D eclaration ofIndependence and Co nstitution, yet we refer to them as terrorists."). But see U nited States v. Jordan, 2 23F.3d 676, 69 4 n.15 (7 th Cir. 2000) (rejecting a comparison between the actions of a supporter of PuertoRican independence involved in a bombing campaign and the Boston Tea Party since "n o attempt wasmade to blow up the ship" in the Boston Tea P arty).42 HOFFMAN, supra note 20, at 31; see also Grenville Byford, Th e Wrong War , 81 FOREIGN AFF., July-Aug.2002, at 34 ("Like beauty, it wou ld seem that terrorism is in the eye of the beholder."); MA LIK , supra note2, at 32 ("Context, or view point, is everyth ing in the definition of terrorism."); SCHMID, supra note 10, at 6("The question of definition of a term like terrorism can not be detached from th e question of who is thedefining agency.").See, e.g., Cooper, supra note 8, at 882 ("One person's terrorist will ever remain another's freedomfighter. The process of definition is wholly frustrated by the presence of irreconcilable differences.");Levitt , supra note 2, at 109-10 ("[T]he dictum 'one m an's terrorist is another ma n's freedom fighter' can beseen as a statement not so much of an inherent moral conundrum,but of an international political reality.");N afziger, supra note 2, at 8; M onette Z ard, Exclusion, Terrorism, and the Refugee Convention, 1 BENDER'SI M M I G R . B U LL. 933,934 (2002); SCHMID, supra note 10, at 112; se e also Cheema v. I N S , 35 0 F.3d 1035,1042 (9 th Cir. 2003) ("One country's terrorist ca n often be another country 's freedom fighter.").44 See, e.g., LA Q U EU R , supra note 9, at 7 ("Of all the observations on terrorism this is surely one of thetritest."); N etanyahu ,supra note 18, at 7; SCHMID, supra note 10, at 112-13; JENKINS, supra note 24, at 2("One man's terrorist is everyone's terrorist."); see also U nited States v. Gonzales Claudio, 806 F.2d 334,338 n.4 (2d. Cir. 1986) ("Whether or not acts of terrorism are comm itted to enha nce the freedom of others,the perpetrators are acting no t only beyond th e law, bu t beyond th e pale of civilized conduct w hen they take


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Legal definitions of terrorism generally fall into one of two categories, describedby Geoffrey Levitt as deductive an d inductive.50 Deductive definitions "cover a widevariety of criminal conduct, but only under certain circumstances" and are "characterizedby the use of a fairly broad substan tive element and a general, politically oriented in tentelement."51 These definitions generally use the term terrorism52 and attempt to create acomplete definition "into wh ich all terrorist acts would fit."53 Definitions under thedeductive approach typically consist of three parts: (a) a subs tantive element containingthe prohibited cond uct, (b) an intent or motivation requirement, and (c) usually ajurisdictional element.54

The inductive approach, by contrast, "relies upon a relat ively precise d escriptionof the conduct constituting the substantive element and omits the political intentrequirement that characterizes the deductive approach."55 Inductive definitions aregenerally limited to specified conduct and do not attempt to cover all conduct whichmight be terrorism.56 The term terrorism is not explicitly included in the definition ,'though it may find its way into a preamble."

A. FISA.57

49,079, 49,080 (Sept. 23, 2001); 28 C.F.R. 0.85(0 (2003).4918 U.S.C.A. 2339(a) (Supp. 2003) (harboring or concea ling terrorists); 18 U.S.C.A. 2339A(a) (Supp.2003) (providing material support for terrorists); 8 U.S.C.A. 1182(a)(3)(B)(iv) (Supp. 2003) (en gagin g interrorist activity).50 Levitt, supra note 2, at 97. M alik similarly, although no t identically, divides terrorism definitions intoextrinsic and intrinsic "routes to definition." MALIK, supra note 2, at 19-25. Other comm entators identifydifferent components to legal definitions of terrorism. See, e.g., Franck & Lockwood, supra note 5, at 72-82.51 Levitt, supra note 2, at 108-09.52 Id . at 109.53 Id . at 97.

Id . at 104. Levitt uses jurisdiction to refer to location of the conduct, not in the traditional legal use ofthe term concerning which courts may exercise authority over such conduct.55 Id . at 109.56 Id . at 109.57 Id . at 109.


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1 1

The oldest statutory definition of terrorism in federal law is the FISA definition of"international terrorism," w hich is defined as activities that:

(1 ) involve violent acts or acts dangerous to human life that are a violation of thecriminal laws of the United States or of any State, or that would be a criminalviolation if committed within the jurisdiction of the United States or any State;(2) appear to be intended(A ) to intimidate or coerce a civilian population;(B ) to influenc e the policy of a government by intimidation or coercion; or(C) to affect th e conduct of a government by assassination or kidnapping;and(3) occur totally outside the United States, or transcend national boundaries in termsof the means by which they are accomplished, the persons they appear intended tocoerce or intimidate, or the locale in which their perpetrators operate or seekfOasylum.

This definition is a deductive definition with th e first subsection conta ining th esubstantive element, nam ely that it be a violent act that violates some A merican criminallaw.59 The intent requireme nt is in the second subsection, and the jurisdictiona l element,which makes th e conduc t "international," co nstitutes th e third subsection.60

FISA "establish[ed] a procedure und er which the Attorney General can obtain ajudicial order authorizing electronic surveillance in the United States to acquireinformation fo r foreign intelligence purposes."61 Although th e definition of"international terrorism" has remained unchanged since its 1978 enactment, 6amendm ents to FISA hav e increased the reach of the Act,63 and, thus, the reach of its

5850U.S.C. 1801(c) (2000).59 Id. 1801(c)(l) . Se e also In re Sealed Case, 31 0 F.3d 717,726 (Foreign Int. Surv. Rev. 2002)( '"International terrorism,' by definition [under FISA], requires th e investigation of activities tha tconstitute crimes.").

60 See generally Levitt, supra note 2, at 104-05 (discussing the FISA interna tional terrorism definition).61 United States v. Megahey, 553 F. Supp, 1180, 1183 (E.D. N.Y. 1982).62 Compare 50 U.S.C.A. 1801(c) (Supp. 2003) with Pub. L. 95-511, 101, 92 Stat. 1783, 1784 (1978).63 See generally Alison A . Bradley, Comment, Extremism in the Defense of Liberty?: The ForeignIntelligence Surveillance Act and the Significance of the USA PATRIOT Act, 11 TUL. L. R EV. 465 (2002);Will iam Michael, A Window on Terrorism: The Foreign Intelligence Surveillance Act, 58 BENCH & B A RO F MINN., Nov . 2001, at 23; se e also Sharon H . Rackow, Comment, How the USA Patriot Act will permitGovernmental Infringement upon the Privacy of Americans in the Name of 'Intelligence' Investigations, 150U. PA. L. REV. 1651,1658 (2002) (characterizing the USA PA TRIO T Act amendments to FISA as


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definition of terrorism, making the FISA definition one of the most significant in federallaw. Additionally, this first statutory defin ition of terrorism is the model for severalsubsequent definitions.64

B. Criminal Code DefinitionsThe title of the United States Code w hich contains the most definitions of

terrorism is the criminal code, title 18, w hich includes a chapter e ntitled "terrorism,"65 aswe l l as definition s of terrorism in other parts of the title. The basic d efinition s ofterrorism in the terrorism chapter, found at section 2331 of title 18, mirror the FISAdefinition. The definition of "international terrorism,"66 enacted in 199257 and amendedslightly in 2001 by the Uniting and Strengthening America by Providing AppropriateTools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act),68 is averbatim copy of the FISA definition,69 except that the motivation component includesaffecting governments by "mass destruction" in addition to assassination andkidnapping. 70 Likew ise, the d efinition of "domestic terrorism,"71 enacted in 2001 as partof the USA PATRIOT Act,72 is identical to FISA except for the inclusion of "mass

bestow ing "far-reaching an d unw arranted surveillance authority [to] law enforcement and intelligenceagencies."); In re Sealed Case, 310 F.3d 71 7 (Foreign Int. S urv. Rev. 2002) (discussing the reach of FISAunder the USA PATRIOT Act).64 See, e.g., 18 U.S.C.A. 2331(1) (2000 & Supp . 2003); 18 U.S.C.A. 2331(5) (Supp. 2003); 18 U.S.C.921(a)(22) (2000); 49 U.S.C. A. 44703(g)(3) (Supp. 2003); Exec. Order No. 13224, 3, 66 Fed. Reg.49,079,49,080 (Sept. 23, 2001)."Chapter 113B of Title 18, 18 U.S.C. 2331-2339B.66 18 U.S.C.A. 2331(1) (2000 & Supp. 2003).67 Th e Federal Courts Administration Act of 1992, Pub . L. No. 102-572, 1003(a)(3), 106 Stat. 4506,4521.68 Pub. L. No. 107-56, 802(a)(l) , 115 Stat. 272, 37 6 (2001). See generally Michael T. McC arthy, RecentDevelopment, USA PATRIOT Act, 39 HARV. J. ON LEGIS. 435 (2002); Bradley, supra note 63 .69 50 U.S.C. 1801(c) (2000); see supra Part III.A.70 18 U.S.C.A. 2331(l)(B)(iii) (Supp. 2003).71 Id . 2331(5) .72 Pub. L. No. 107-56, 802(a), 115 Stat. 272, 376 (2001).


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destruction" in the m otivation component73 and the jurisdictional requirement wh ichmakes the definition "domestic." The definition of "domestic terrorism" requires that theevent "occur primarily w ithin the territorial jurisdiction of the U nited States"74 asopposed requiring conduct outside of the United States or transcending nationalboundaries under the FISA and section 2331 "international terrorism" definitions. 75 Bothdefinitions are deductive with a requirement that the conduct "appear[s] to be intended"to affect or influence a government or population76 and po tentially includ e all acts ofterrorism.

Despite being located within the federal criminal code, the section 2331definitions of terrorism are not elements of crimin al offense s. How ever, the section 2331definitions of terrorism have been incorporated into a wide variety of other contexts.Statutory provisions hav e referred to the section 2331 definitions in provisions, forexample, governing the possession, use, an d transfer of biological agents an d toxins,77

'IQexpanding warrant authority fo r terrorism investigation s, determ ining civil liability fo racts of interna tional terrorism against United States nationals,79 rewarding the furnishingof information on terrorism,80 granting imm unity fo r airline employees who report

81 8"? 8"?suspicious behavior relating to terrorism, disclosing of tax and education

18 U.S.C.A. 2331(5)(B)(iii) (Supp. 2003).374 Id . 2331(5).75 Id . 2331(1) (2000); 50 U.S.C. 1801(c) (2000).7618 U.S.C.A. 2331(1)(B) (2000 & Supp. 2003); 18U.S.C.A. 2331(5)(B) (Supp. 2003).77 42 U.S.C.A. 262a(e)(3)(B)(ii)(II) (2003); 7 U.S.C.A. 8401(e)(3)(B)(ii)(II) (Supp. 2003).78 FED. R. CRIM. P. 41(b)(3) (granting magistrate judges the authority to issue warrants valid outside of thejudge's district fo r terrorism investigations).7918 U.S.C. 2333 (2000); se e Boim v. Quranic Literary Inst. & Holy Land Found, for Relief and Dev.,291 F.3d 1000, 1009 (7 th Cir. 2002); E states of Ungar ex rel. Strachman v. Palestinian Auth., 228 F .Supp.Zd 40,46 (D. R.I. 2002).80 18 U.S.C.A. 3077(1) (Su pp. 2003).81 49 U.S.C.A 44941 (a) (Supp. 2003) (referring to 18 U.S.C. 3077, which refers to 18 U.S.C. 2331)).82 26 U.S.C.A. 6103(b)(l 1) (2002).83 20 U.S.C.A. 1232g(j)(l)(A) (Supp. 2003).


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they are to be used in preparation for, or in carrying out, a violation of 35 listed criminalprovisions.95 There is no requirement for any political motivation fo r either th e materialsupport or the activity supported,96 and no definition of terrorism is included in thissection. Indeed, the words "terrorism" and "terrorists" do not appear in the section afterth e section title. The section's definition of providing m aterial support is , however,incorporated into th e statute w aiving imm unity for foreign states which sponsorterrorism.97

The terrorism chapter of the criminal code also has a deductive definition ofterrorism in section 2332. Th is section authorizes prosecution for homicidal or violentacts against a national of the United States "w hen ou tside th e United States,"98 bu t onlyupon written certification by the Attorney General or the high est ranking subordinatewith th e responsibility fo r criminal prosecutions "that, in the judgment of the certifyingofficial, such offense was intended to coerce, intimidate or retaliate against a governmentor civilian populace."99 Finally, one section of the terrorism chapter in title 18 uses adefinition of "terrorist organization" from another p ortion of the Unite d States Code, theImmigration and Nationality Act.100

QC 18 U.S.C.A. 2339A(a) (Supp. 2003).96 Although some of the 35 crimes mentioned in the section require a political motivation fo r prosecution,such as 18 U.S.C. 2332, discussed in fra Part III.B, th e majority of the statutes referenced have nopolitical requirement fo r prosecution or conviction, such as 18 U.S.C. 2340A, which criminalizes tortureby those outside of the United States.97 28 U.S.C. 1605(a)(7) (2000). Se e general ly Keith Se aling, "State sponsors of Terrorism" is aQuestion, not an Answer: The Terrori sm Amendments to the FISA makes less sense now than i t did before9/11, 38 TEX. INTL L.J. 11 9 (2003).9818 U.S.C. 2332(a)-(c) (2000). The section was added in 1986, see Omnibus Diplomatic Security andAntiterrorism Act of 1986, Pub. L. No. 99-399, 1202(a), 100 Stat. 853, 896-97, and amended in 1992, seeFederal Courts Administration Act of 1992, Pub. L. No. 102-572, 1003(a)(3), 106 Stat. 4506, 4521.9918 U.S.C. 2332(d) (2000).100 Id . 2339B(g)(6), referring to organizations designated pursuant to 8 U.S.C. 1189. See general lyHumanitarian Law Project v. United States Dep't of Justice, 352 F.3d 382 (9 th Cir. 2003) (discussing andnarrowing 18 U.S.C. 2339B). The designation of "terrorist organizations" under immigration law isdiscussed i n f ra , Part III.C.


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17There are additional definitions of terrorism in the federal criminal code outside

of the terrorism cha pter. These def inition s generally are limited to specific types ofattacks and are ind uctiv e definition s that do not hav e a political intent requirement.Section 1993 of title 18 is entitled, "Terrorist attacks and other acts of violence againstmass transportation systems."101 The section title explicitly include s conduct besidesterrorism throug h the title phrase "and other acts of violence," and the word "terrorism"does not appear in the section beyon d the title. This section, enacted in 2001 throug h theUSA PATRIOT Act,102 crim inalizes specified acts of violence and dam age against publictransportation.103 Alth oug h some parts of the section contain specific crimina l intentrequirements of endangering safety10 4 or "caus[ing] death or serious bodily injury,"10 5there is no political intent requirement typical of deductive definitions. Thus violenceagainst mass transportation systems is crim inalized by this section, regardless of whe therthe perpetuators intended any political purpose by the act.

Similarly, section 43 of the criminal code, "Animal Enterprise Terrorism,"outlaws specific, limited-context conduct w ithout reference to any political motivation orobjective of the perpetuator. This 1992106 inductive definition outlaws "physicaldisruption to the functioning of an animal enterprise"107 and intentional damage or loss"of any property (inclu ding anim als or records) used by the an imal enterprise."108Animal enterprises includ e comm ercial and academic institutes w hich use animals in

101 18U.S.C.A. 1993 (Supp. 2003).102 Pub. L. No. 107-56, 801, 115 Stat. 272, 37 4-75 (2001) (to be codified at 18 U.S.C. 1993(a)).10318 U.S.C.A. 19 93(a) (Supp . 2003).104 Id . 1993(a)(2); id . 1993(a)(3); id . 1993(a)(5).10 5 Id . 1993(a)(6).106 Animal Enterprise Protection Act of 1992, Pub . L. No. 102-346, 2(a), 106 Stat. 928, 928 (codified at18 U.S.C. 43(a)).10 718 U.S.C. 4 3(a )(l) (2000).108 Id . 43(a)(2); but see SCHM1D, supra note 10, at 84-85 (questioning whether attacks against non-


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research and testing,109 as well as, inter alia, zoos, circuses, and rodeos.110 Since there isno requirement for political motivation, any intentional physical destruction o f an animalenterprise is "animal enterprise terrorism" under this section.

The firearms chapter11' of the crimina l code contains another limited-contextdefinition of terrorism, although this definition is deductive and contains a politicalcomponent. This provision, enacted in 1986,112 defines terrorism as an:

activity, directed against United States persons, which(A ) is committed by an ind ividu al who is not a national or permanent residentalien of the United States;(B) involves violent acts or acts dangerous to human life which wou ld be acriminal violation if comm itted wi thin the jurisdiction of the United States; an d(C) is 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 governmen t by assassination o rkidnapping.113This is similar to the FISA definition of terrorism,114 except that th e jurisdictionalrequirem ent of the FISA defin ition is replaced by limitation s on both the perpetrators and

the victims. To fall under this provision, th e activity must be performed by a person whonot is a natio nal or perman ent resident of the United States and m ust be directed against"United States persons."115 Like other deductive definitions of terrorism, this provisionrequires a violent, unlawful act116 an d that it be done for a political purpose.117

humans can properly be classified as terrorism).1 09 18 U.S.C. 43(d)(l)(A) (2000).111 Chapter 44 of Title 18, 18 U.S.C. 921-930.112 Firearms Ow ners' Protection A ct, Pub. L. No. 99-308, 101(6), 100 Stat. 449, 45 0 (1986) (codified at18 U.S.C. 921(a)(22)).113 18 U.S.C. 921(a)(2 2) (2000). The terrorism definition is part of the definition for "with the principalobjective of livelihood or profit." Id .114 See 50 U.S.C. 1801(c) (2000). See supra Part III.A.115 18 U.S.C. 921(a)(22)(A) (2000).116 W. 921(a)(22)(B).11 1 Id . 921(a)(22)(C).


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19This is arguably the least sig nifican t federal definition of terrorism due to its

peculiar procedural context. The definition is part of the statue criminalizing "engaging]in the business of importing, m anuf acturin g, or dealing in firearms" with out a license.118The statute limits criminal liability to those "w ith the principal objective of livelihoodand profit,"11 9 except that "proof of profit shall not be required as to a person whoengages in the regular and repetitive purchase and disposition of firearms for criminalpurposes or terrorism."120 Thu s, unde r this statutory scheme, a person who regularly an drepeatedly p urchases firearms for terrorists can be prosecuted w itho ut the necessity of

showing that the conduct was for profit. One commentator observed that "[t]heincongruity of requirin g the licensing of terrorist supply depots is matched by theincongruity of the wording employed"121 and predicted, apparently accurately, in 1987that "[t]he scope of this exception is likely to remain untested."122

C. Imm igration Law DefinitionsThe definitions of terrorism which incjude the greatest amount of conduct are in

imm igration law. Terrorism-related amen dme nts to the Imm igration and Natio nality Actof 1952,123 most recently through the 2001 USA PATRIOT Act, sign ificantly impactaliens in or seeking to enter the United States. Included in the grounds w hich mak e analien inadm issible to the United S tates are definitions of "terrorist activity" and "engage

nsld. 922(a)( l ) (A) .11 9 Id . 921(a)(21).120 Id . 921(a)(22)(A). Even when the purchases are not for terrorism or criminal purposes, many courtshave declined to find that the statute requires proof of profit. See United S tates v. Grah am, 305 F.3d 1094,1103 (10 Cir. 2002) (noting that a majority of cases have concluded "that a defendant need not be shownto have acted with profit-making intent or engaged in the sale of firearms as his primary business in orderto be convicted under the statute").121 David T. Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 C UMB.L. REV. 585,633(1987).122 Id . There appe ar to be no publish ed cases on th is terrorism definition. Se e 18 U.S.C.A. 921 (2000 &Supp. 2003).


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20in terrorist activity."

The definition fo r "terrorist activities" is :an y activity which is un lawfu l under the laws of the place where it is committed(or which, if it had been com mitted in the United States, wo ul d be unlawfu l underthe laws of the United States or any State) an d which involves any of thefol lowing:(I) The highjacking or sabotage of any conveyance ( includ ing an aircraft, vessel,or vehicle).(II) The seizing or detaining, an d threatening to kill, injure, or cont inue to detain,another individu al in order to compel a third person (including a governmentalorganization) to do or abstain from doing any act as an explicit or implici tcond ition for the release of the ind ividu al seized or detained.(HI) A violen t attack upon an internationally protected person (as defined insection 1116(b)(4) of Title 18) or upon the liberty of such a person.(IV) An assassination.(V) The use of a n y *(a ) biological agent, chemical agent, or nuclear w eapon or device, or(b) explosive, firearm, or other weapon or dangerou s device (other thanfor mere personal monetary gain), with intent to endanger, directly orindirectly, the safety of one or more individuals or to cause substant ialdamage to property.(VI) A threat, attempt, or conspiracy to do any of the foregoing.12 4

This broad definition is not perfectly classifiable as either deductive or indu ct ive. W hile

most provisions of this definition do not contain a political motiva tion, one subsectiondoes require tha t the act be "in order to compel a third person ( includ ing a governmentalorganization) to do or abstain from doing any act as an explicit or implicit condition fo rthe release of the individu al seized or detained."125 The sub stantive element specifiescertain activities traditionally associated with terrorism, such as highjacking 12 6 an dassassination,12 7 as well as activities not inherently seen as terrorism, su ch as the u se of a"firearm . . . (other than for mere personal monetary gain) with in ten t to endanger,

1 2 366S t a t . 163(1952).124 8 U.S.C.A 1182(a)(3)(B)(iii) (Supp. 2003).12 5 Id . 1182(a)(3)(B)( i i i ) (H).126 W. 1182(a)(3)(B)( i i i ) ( I) .12 1 Id . 1182(a)(3)(B)( i i i ) ( IV).


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21directly or indirectly, the safety of one or more individuals."12 8 There is no jurisdictionalrequirement, althoug h this provision in the Immigration and Nation ality Act generallyapplies only to aliens.

In addition to the above definition of "terrorist activity," the same section of theImmigration and Nationality Act further defines "engage in terrorist activity." Portionsof this d efinition reference the "terrorist activity" definition, such as preparing or planinga terrorist activity,12 9 gathering "inform ation on potential targets for terrorist activity," 13 0an d committing or inciting a terrorist activity "under circumstances indicating anintention to cause death or serious bodily injury."13 1 Add itionally, the de finition of"engage in terrorist activity" also includes soliciting "funds or other things of value," fo ra terrorist activity,13 2 or for a terrorist organization.13 3 Likewise, the "engage in terroristactivity" defin ition include s soliciting any individ ual to engage in terrorism,134 or to joina terrorist organization .13 5 Finally, th e definition of "engage in terrorist activity" includesproviding "material support, including a safe house, transportation, com munications,funds, transfer of funds or other material financial benefit, false d ocumentation oridentification, weapons . .. , explosives, or training" fo r "the commission of a terroristactivity"13 6 to a person "who the actor know s, or reasonably should know , has committedor plans to commit a terrorist activity,"13 7 or to a terrorist organization.13 8 The provisions

mld. 1 2 9 I d . 1182(a)(3)(B)(iv)(II).130 W. 1182(a)(3)(B)(iv)(III).mld. 1182(a)(3)(B)(iv)(I).1 3 2 I d . 1182(a)(3)(B)(iv)(IV)(aa).13 3 W. 1182(a)(3)(B)(iv)(IV)(bb)-(cc).134 W. 1182(a)(3)(B)(iv)(V)(aa).13 5 I d . 1182(a)(3)(B)(iv)(V)(bb);i d . 1182(a)(3)(B)(iv)(V)(cc).13 6 W. 1182(a)(3)(B)(iv)(VI)(aa).137 I d . 1182(a)(3)(B)(iv)(VI)(bb).1 38 W. 1182(a)(3)(B)(iv)(VI)(cc);(W. 1182(a)(3)(B)(iv)(VI)(dd).


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22fo r soliciting funds, recruiting members, an d providing material support al l haveexceptions for organizations that have not been designated as "terrorist organizations"when the solicitor, recruiter, or supporter "can demonstrate that he did not know, andshould no t reasonably have known, that th e [solicitation/recruiting/supporting] wouldfurther the organization's terrorist activity."139

Like the definition of "terrorist activity," the definition of "engage in terroristactivity" contains elements common to both deductive and inductive definitions. Thesubstantive element is broad, including soliciting "anything o f value"140 o r solicitingprospective members141 fo r certain organizations. Aspects of the definition do no t havean y explicit intent requirement, such as soliciting funds for a recognized terroristorganization,14 2 while other aspects have an affirmative defense for the reasonable lack ofknowledge.143 As has been observed, "the plain text of law would allow deportation of anon-citizen who donates coloring books to a daycare center run by an organization thatalso has terrorist ties," although "such a result in not automatic."144 The definition doesno t contain an explicit jurisdictional requirement, although it typically applies only topersons who are not citizens of the United States.

The immigration consequences of the definitions fo r "terrorist activity" an d

139 Id. 1182(a)(3)(B)(iv)(IV)(cc);/J. 1182(a)(3)(B)(iv)(V)(cc);tti 1182(a)(3)(B)(iv)(VI)(dd). Seealso id. 1182(a)(3)(B)(vi)(I)-(II) (the designationof organizations as "terrorist organizations").140 Id . 1182(a)(3)(B)(iv)(IV)(aa)-(bb).141 Id. 1182(a)(3)(B)(iv)(V)(aa)-(bb); see also G O V E RN M E N T ACCO U N TIN G OFFICE, JUSTICEDEPARTMENT: BETTER M ANAGEM EN T OVERSIGHT AND INTERN AL CONTROLS NE EDE D TO ENS UR EACCURACY O F TERR OR ISM-RE LATED STATISTICS 16 (2003) [hereinafter, GAO, BETTER MANAGEMENT]("The term 'engage in terrorist a c t i v i t y ' . . . encompasses no t only the commission of terrorist activities, bu ta broad range of conduct in support o f terrorist activities,generally involving such things as preparationo rplanning; gathering information on potential targets; soliciting funds or members; o r affording materialsupport.").142 8 U.S.C.A. 1182(a)(3)(B)(iv)(IV)(aa)-(bb) (Supp. 2003).143 E.g., id. 1182(a)(3)(B)(iv)(V)(cc) ;iW . 1182(a)(3)(B)(iv)(IV)(cc);tti 1182(a)(3)(B)(iv)(VI)(cc).144 McCarthy, supra note 68, at 452; se e also Zard, supra note 43, at 935 ("[T]he U S A PATRIOT Act alsoallows for the detention an d deportation of no n-citizens who provide lawful assistance to groups that ar e


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24"terrorist organizations" by the Secretary of State.153 Such a designation removes theaffirmative defense based on a reasonable lack of knowledg e for those w ho raise fundsfor,154 recruiters members for,155 an d provide material support to156 designatedorganizations u nder the definition of "engage in terrorist activity." In other words, aperson w ho raises funds for or otherwise assists a designated organization is consideredto have engaged in terrorist activities regardless of the person's knowledge or motives.Likewise, a determination that an organization is a foreign terrorist o rgan ization requiresthe suspension of the organization's tax-exempt status157 and a uthor izes the Secretary ofTreasury to seize the assets of the organization.158 The immigration law definitions ofterrorism are significa nt both for the breadth of activities covered and their consequen ces.

D. State Department DefinitionsAd ditional statutory definitio ns of terrorism relate to the Dep artme nt of State.

The provision requiring the State D epartment to prepare ann ual country reports onterrorism provides:

the term 'terrorism' means premeditated, politically motivated v iolenceperpetrated against non com batant targets by subn ationa l groups or cland estine159agents.

153 8 U.S.C. 1189(a)(l)(B) (Supp. 2003); id . 1182(a)(3)(B)(vi)(II). Some courts have uph eldconstitutional challenges to portions of 8 U.S.C. 1189. Se e National Council of Resistance of Iran v.Department of State, 251 F.3d 192, 208 (D.C. Cir. 2001) (ruling that due process can requ ire the putativeterrorist organ ization to be notified of the pending d esignation); United States v. Ra ham i, 209 F. Supp.2d1045 (C.D. Cal. 2002) (finding 8 U.S.C. 1189 unco nstitutiona l).154 8 U.S.C.A. 1182(a)(3)(B)(iv)(IV) (Supp. 2003).15 5 Id . 1182(a)(3)(B)(iv)(V).mld. 1182(a)(3)(B)(iv)(VI).157 Military Family TaxRelief Act, Pub. L. No. 108-121, 108, - Stat.-,-- (2003) (to be codified at 26U.S.C. 501(p)(2)(A)).158 Id . 1189(a)(2)(C). The authority to seize assets is not activated, however, by a designation pursuant to8 U.S.C. 1182(a)(3)(B)(vi)(II), only designations under 8 U.S.C. 11 89(a )(l)(B).159 22 U.S.C. 2656 f(d)(2) (2000). Se e also Noteboom, supra note 8, at 569 ('The strength and w eaknessof this definition is its simplicity."). The same definition is also used in State Department reports onterrorist assets in the United States. 22 U .S.C. 2656g(b)(2) (2000).


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This concise definition of terrorism, enacted in 1987,16 is a deductive definition w ith asubstantive element of "violence perpetrated against noncombatant targets"161 and aintention requirement that the violence be "politically motivated."162 There is nojurisdictional requirement, although the section generally relates to internationalterrorism.163 The definition has limitations for both the perpetrator, "subnational groupsor clandestine agents"164 and the victim, "noncombatant targets."165 Limiting thedefinition to "noncombatant targets" wo uld seemingly exclu de attacks on military targets,such as the 1996 bom bing of the Kho bar Towers m ilitary barracks in Saudi Arabia.166

In addition to providing the standard for the State Department's annual terrorismreports, this defin ition also is used, in conjunction with the immigration law definition ofengaging in terrorism activity,16 7 in the Secretary of State's designations of "foreignterrorist organizations."168 As discussed above, the immigration implications for suchdesignations are immense.169 Also, the definition is employed as part of a statutory bar tothe Defense Department providing financial assistance to countries determined to havesupported "international terrorism."170

160 Foreign Relations Authorization Act, Fiscal Y ears 1988 and 1989, Pub . L. No. 100-204, 140, 101 Stat.1331,1349(1987).161 22 U.S.C. 2656f(d)(2 ) (2000).162 Id .Se e id . 2656f. Th e section defines "international terrorism" as "terrorism involving citizens or theterritory of more than 1 country," id . 2656f(d)(l) , and "terrorist group" as "any group practicing,orwhich has significant subgroups which practice, international terrorism," id . 2656f(d)(3).164 Id . 2656f(d)(2).165 Id . 2656f(d)(2).166 Se e M ALIK, supra note 2, at 45; Noteboom, supra note 8, at 570.167 8 U.S.C.A. 1182(a)(3)(B) (Supp. 2003). Se e supra Part III.C for a discussion of that definition. Sucha designation, whether under the immigration law definitions or 22 U.S.C. 2656f(d)(2),can cause anorganization to lose its tax-exempt status. M ilitary Family Tax Relief Act, Pub . L. No. 108-121, 108, --Stat. --, -- (2003) (to be codified at 26 U.S.C. 501(p)(2)) (referring to, inter alia, the statute creating 22U.S.C. 2656f(d)(2), the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).168 8 U.S.C.A. 1189(a)(l)(B) (Supp. 2003).169 Se e supra Part III.C.170 10 U.S.C. 2249a(c) (2000).


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26Another definition of terrorism relates to the Secretary of State's authority to

grant rewards fo r providing information about international terrorism.171 The definition,enacted in 1998,172 provides:

The term 'act of international terrorism' includes:(A) any act substantially con tributin g to the acquisition of unsafeguarde d specialnuclear m a t e r i a l . . . or any nuclear explosive device ... by an individual, group,or non-nu clear-weapon state . ..;and(B) any act, as determined by the Secretary, which materially supports th econduct of international terrorism, includ ing the co unterfeiting of United Statescurrency or the illegal use of other monetary instruments by an individu al, group,or country supporting internatio nal terrorism ... ,17 3W hile subparagraph (A ) provides an indu ctive definition with a limited sub stantiveelement related to nuclear material or devices an d without a political intent requirem ent,subparagraph (B) is so broad t hat it does not have sufficient boundaries to be classified aseither indu ctive or deductive. Subparagraph (B ) allows the Secretary of State extensiv ediscretion in determining what acts "materially support the conduct of internationalterrorism" an d thus constitute international terrorism under th is definition.17 4 Since thisdefinition is limited to the reward-granting authority of the Secretary of State, it is oflimited sig nificance.

E. Other Statutory DefinitionsCongress has enacted additional statutory definitions of terrorism in various other

contexts. The Homeland Security Act of 2002,175 wh ic h , inter alia, created th eDepartment of Hom eland Security, contains tw o statutory definitions of terrorism. The"definitions" section of the Act defines terrorism as :

171 22 U.S.C. 2708 (2000).172 Om nibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, 2202,112 Stat. 2681, 2681-807 (1998), amended by State Department Basic Authorities Act Amendmentsof 1998, Pub. L. No. 105-323, 10 1 , 112 Stat. 3029, 3031-32.173 22 U.S.C. 2708(j)(l) (2000).


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27any activity that(A) involves an ac t that-(i) is dangerous to hum an life or potentially destructive of criticalinfrastructure or key resources; and(ii) is a violation of the criminal laws of the U nited States or of any State

or other subdivision of the Un ited States; an d(B) appears to be intended(i) to intimidate or coerce a civi l ian populat ion;(ii) to influen ce the policy of a government by intimidation or coercion; or(iii) to affect the conduct of a government by mass destruction,assassination, or kidnapping.1 6Th is is a deductive definition w ith a substan tive element requiring a dangerous a ct inviolation o f an American criminal law 17 7 and a political m otivation identical to t ha t foundin th e section 2331 definitions of terrorism.17 8 Unlike th e section 2331 defin itions,how ever, the Homeland Security Act's definition does not h ave a jurisdict ionalcompon ent; an a ct fitting this definition would be considered terrorism wh erever itoccurred.

Although the Hom eland Security Act constitutes a sign ifican t reorganization ofth e federal government, combining all or part of 22 different agencies into the newDepartment of Homeland Security,17 9 th e Act 's definition of terrorism is not particula rlysignificant since it only applies in limited circumstances such as rules govern ingprocurement.18 0 Although the Act, inter alia, abolished the Immigration and

17 4 Id . 2708G)(1)(B).175 Pub. L. No. 107-296, 116 Stat. 2135 (2002).11 6 Id . 2 (15) , 11 6 Stat. at 2141.177 Id . 2(15)(A), 116 Stat. at 2141.178 Compare id. 2(15)(B), 116 Stat. at 2141, with 18 U.S.C.A. 2331(1)(B) (2000 & Supp. 2003) an d 18U.S.C.A. 2331(5)(B) (Supp. 2003).179 See Helen Dew ar, Homeland Security Bill Sent to White House, W ASHINGTON POST, Nov. 24,2002, atA03.See, e.g., Federal A cquisition Regulation; Procurements for Defense Aga inst or Recovery FromTerrorism or Nuclear, Biological, Ch emical or Rad iological Attack, 68 Fed. R eg. 4048 (Jan. 27, 2003)(incorporating th e Homelan d Security Act terrorism definition in interim procurement rules fo r agenciesinvolved in defending against a terrorist attack or the recovery after such an attack).


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28Naturalization Service18 1 and incorporated the INS' functio ns into the new department,18 2the Homeland Security Act does not alter the existing definitions of terrorism inimmigration law applied by the new department.

The H omeland Security Act provides another definition of terrorism in the portionof the Act concern ing anti-terrorism technolog y. Section 865 of the Act define s "act ofterrorism" as an act that:

(i) is unlawful;(ii) causes ha rm to a person, property, or entity, in the United States, or in the caseof a domestic United States air carrier or a United States-flag vessel (or a vesselbased p rincipa lly in the United States on wh ich Un ited States income tax is paidand wh ose insurance coverage is sub ject to regulation in the Un ited States), in oroutside the Un ited States; and(iii) uses or attempts to use instrumentalities, weapons or other methods designedor intended to cause mass destruction, injury or other loss to citizens orinstitutions of the United States.18 3

This is essentially a deductive definition, although witho ut a political m otivationrequirement. Rather, an unlawful act that causes harm to someone or som ething in theUnited States by mean s designed to cause ma ss destruction would be terrorism under thisdefinition, if the Secretary of Hom eland Security determines it satisfies th e definition'srequirements.18 4

This definition relates to a federal cause of action created by the Act "for claimsarising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies hav e been deployed in defense against or response or recovery

from such act and such claims result or may result in loss to the Seller."185 The definitionis only applicable in such causes of action b rought by sellers of "qualified an ti-terrorism

181 Pub. L. No. 107-296, 471, 116 Stat. at 2205.182 Id . at 441-460, 116 Stat. at 2192-2201.183 Id . 865(2)(B ), 116 Stat. at 2242.184 Id . 865(2)(A), 116 Stat. at 2242 .


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291RAtechnologies," which must be certified by the Secretary of Hom eland Security. Since

the definition applies in only narrow circumstances, it is of very limited significance.Another recent statutory definition of terrorism was created through the Terrorism

Risk Insurance Act of 2002.187 In this statute, "[t]he term 'act of terrorism' means anyac t that is certified by the Secretary [o f Treasury], in concurrence with the Secretary ofState, and the Attorney G eneral of the United States

(i) to be an act of terrorism;(ii) to be a violent act or an act that is dangerous to(I ) human life;(H) property;(HI) infrastructure;(iii) to have resulted in damage w ithin the United States, o r outside of the Un ited

States in the case of(I) an air carrier or vessel [based an d insured in the United States];(II) the premise of a United States mission; and(iv) to have been comm itted by an individ ual or individ ual acting on behalf of anyforeign person or foreign interest, as part of an effort to coerce the civilianpopulation of the United States or to influence the policy or affect the conduct ofthe United States Government by coercion.188This is a deductive definition, with a substantive requirement of a violent act dangerousto hum an life, property, or infrastructure,18 9 a motivation requirement that the act be partof an effort to coerce or influenc e the United States p opulation or government,190 and ajurisdictiona l requirement that the damage occur w ithin the United States, at a UnitedStates mission or to a craft based in the United States.191 The definition further requirescertification by the Secretary of the Treasury that the conduct satisfies the Act's

185 Id . 863(a)( l) , 116 Stat. at 2239.186 Id . 863(d)(3), 116 Stat. at 2240.187 Pub. L. No. 107-297, 116 Stat. 2322 (2002).188 Id . 102(1)(A), 116 Stat. at 2323-24.189 Id . 102(l)(A)(ii), 116 Stat. at 2323.190 Id . 102(l)(A)(iv), 116 Stat. at 2324.191 Id . 102(l)(A)(iii), 116 Stat. at 2324; see also Omni Bershire Corp. v. Wells Fargo Ban k, N.A., 2003WL 1900822, at *3 (S.D. N .Y. Apr. 17,2003) (The T errorism Risk Insurance Act definition of terrorism"does not apply to acts of domestic terrorism.").


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requirements.19 2 Additionally, for an act to qualify under the definition, it must beperformed on behalf of a foreign individual or interest,19 3 and, oddly, that it is "an act ofterrorism."194 Presumably, the Secretary of the Treasury could determine that conduct isno t an act of terrorism, despite otherwise satisfying the requirements of the definition.

This definition of terrorism, as is apparent from the Act's title, concernsinsurance fo r terrorism. Although the Ac t is significant to insurance carriers,19 5 itsdefinition of terrorism is not particularly sign ificant.

Another recent definition is from the Aviation and Transportation Security Act of2001,1% which defines an "act of terrorism" as:

an activity that involves a violent act or an act dangerous to h uma n life that is aviolation of the criminal laws of the United States or of any State, or that wouldbe a criminal violation if committed within the jurisdiction of the United States orof any State, an d appears to be intended to intimidate or coerce a civilianpopulation to influence the policy of a government by intimidation or coercion orto affect the conduct of a government by assassination or kidnaping [sic].197This is a deductive definition nearly identical to the FISA definition of internationalterrorism,19 8 except there is no jurisdictional requirement at all. This definition is notespecially significant since it only applies in the limited context of the issuance of"airman" certificates by the Federal Aviation Administration.19 9

Finally, a definition of "act of international terrorism" was enacted as part of the

192 Pub. L. No. 107-297, 102(1)(A), 116 Stat. at 2323-24. The statute bars the Secretary from delegatingth e certification authority, id . 102(D), and the Secretary's determinations are not subject to judicialreview, id . 102(C).193 Id . 102(l)(A)(iv), 116 Stat. at 2324.194 Id . 102(l)(A)(i), 116 Stat. at 2323.195 See generally Joseph G. Jarret, The Business of Terrorism: The Terrorism Risk Insurance Act of 2002,77 FLA.BAR J. 63 (Oct. 2003).196 Pub. L. No. 107-71, 129(2), 115 Stat. 597, 633 (2001) (to be codified at 49 U.S.C. 44703(g)(3)).197 49 U.S.C.A. 44703(g)(3) (Supp. 2003).198 Compare 49 U.S.C.A. 44703(g)(3) (Supp. 2003) with 50 U.S.C. 1801(c) (2000).199 49 U.S.C.A. 44703(g) (Supp. 2003).


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31Iran and Libya Sanctions Act of 1996.200 This un-codified definition is likewise nearlyidentical to the FISA definition,20 1 except that there is no jurisdictional element, despiteclaiming to be a definition of "international terrorism." This definition is part of a statuteestablishing fines for investing in Iranian and Libyan industries due to a Congressionalfinding that those countries have supported "international terrorism."202

F. Executive Branch De finitionsCongress is not the only source of federal legal definition s of terrorism. The

executive branch of the federal government ha s promulgated at least tw o definitions. Adefinition fo r terrorism was part of an Executive Order concerning asset seizure issued byPresident George W. Bush shortly after the September 11, 2001 attacks. Executive Order13224 de fines terrorism as:

an activity that(i ) involves a violent act or an act dangerous to h u m an life, property, orinfrastructure; and(ii) appears to be intended(A) to intimidate or coerce a civilian population;(B) to influence the policy of a government by int imidation or coercion; or(C) to affect the conduct of a government by mass destruction,assassination, kidna pping, or hostage-taking.203

This is a deductive de finition with a substantive portion and a political portion, althoughthere is no jurisdictional requirement. The definition is similar, although not iden tical, tothe subs tantive and the political motivation portions of FISA and section 2331definitions.20 4 This definition is signific ant since th e executive order authorizes th e

200 Pub. L. No. 104-172, 14(1), HOStat. 1541, 1549 (1996).201 Compare id . with 50 U.S.C. 1801(c) (2000). There are some minor stylistic differences, such as theuse of the phrase "a n ac t . . . which is violent or dangerous to huma n l i fe" in the Iran an d Libya SanctionsAct, 14(1), while FISA contains "violent acts or acts dangerous to human life." Se e 50 U.S.C. 1801(c)(2000).2 0 2Pu b . L. No. 104-172, 2(3)-(4), H O St a t . 1541, 1541 (1996).203 Exec. Order No. 13224, 3, 66 Fed. Reg. 49,079, 49,080 (Sept. 23 , 2001).204 See 50 U.S.C. 1801(c) (2000); 18U.S.C.A. 2331(1) (2000 & Supp. 2003); 18U.S.C.A 2331(5)


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32seizure of assets of groups that "assist in, sponsor, or provide financial, material, ortechnological support f o r . . . acts of terrorism."205

Another executive branch definition of terrorism is part of the regulationdiscussing th e duties of the Federal Bureau of Investigation.20 6 Under this regulation,"Terrorism includes th e unlawful use of force an d violence against persons or property tointimidate or coerce a government, th e civil ian popu lation, or any segment thereof, infurtherance of political or social objectives." 20 7 This is a deductive definition with asubstantive element of "unlawfu l use of force and violence against persons or property"an d a motivation element of intimidating or coercing a government or population "infurtherance of political or social objectives." 208 There is no jurisdictional element.

This d efinition is not legally significan t since it has no legal consequences.Rather, it is included in the listing of fun ction s of the FBI, declaring that the FBI is thelead agency to investigate crimes "which involve terrorist activities." 20 9 The regulationdoes not preclude other governm ental agencies from inv estigating terrorism, but rather"that agency is requested to promptly notify th e FBI."210 Likewise, th e regulation doesnot limit the FBI investigation to activities falling within that definit ion.u Additionally ,

(Supp. 2003). The motivation component of the Executive Order concerning affecting governmentalconduct includes "mass destruction," which is not part of FIS A, and "hostage-taking," which is not part ofthe FISA or section 2331 definition s. Compare Exec. Order No. 13224, l(d)(ii)(C), 66 Fed. Reg. at49,080, with 50 U.S.C. 1801(c)(2)(C) (2000) and 18 U.S.C.A. 2331(l)(B)(iii) (Supp. 2003) and 18U.S.C.A 2331(5)( B)(iii) (Supp. 2003).20 5 Exec. Order N o. 13224, l(d)(i), 66 Fed. Reg. at 49,080; se e also Global Relief Found., Inc. v. O'Neill ,315 F.3d 74 8 (7 th Cir. 2002) (applying th e executive order); Holy Land Fo und, fo r Relief & Dev. v.Ashcroft, 219 F. Supp.2d 57 (D.D.C. 2002) (same), o f f " d , 333 F.3d 156 (D.C. Cir. 2003).206 28 C.F.R. 0.85(/) (2003).207 Id .208'Id.I21 02 0 9 i d .Id . (emphasis added).21 1 See G A O , BETTER MANAGEMENT, supra note 141, at 7 (discussing how FBI terrorism-relatedinvestigations need not fall under the terrorism definition of 28 C.F.R. 0.85(/)).


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the use of the phrase "terrorism includes"212 signals that the definition is not intended tocover all possible acts of terrorism. While not legally significant, the definition isfrequently cited by commentators as an example of a legal definition of terrorism.213

IV . Options for the Multiple Legal DefinitionsThe federal legal definitions of terrorism discussed above are inconsistent as to

what constitutes terrorism, differing on , inter alia, th e requirements of a politicalmotivation 21 4 and even the nature of the victims.21 5 This section discusses three options

in addressing the situation: maintaining th e status quo, abandoning th e attempt to legallydefine terrorism, and adopting a single definition.

A. Maintaining the Status QuoThe principal benefit to numerous legal definitions of terrorism is that each

definition can be individualized to best serve its intended purpose. As one commentatorhas observed, the different legal definitions "reflect[] the priorities and particular interestsof the specified agency involved."216 It is logical that different standards are used formaking determinations relating to vastly different public policy objectives, such asdetermining which aliens are permitted to enter the Un ited States, the circumstances

28 C.F.R. 0.85(0 (2003).12213 See, e.g., WHITE, supra note 6, at 12; HOFFMAN, supra note 20, at 38; N oteboom, supra note 8, at 558-59; Beres, supra note 13, at 240.214 Compare, e.g., 50 U.S.C. 1801(c)(2) (2000) and 18 U.S.C. 921(a)(22) (2000) and 28 C.F.R. 0.85(/) (2003) and 22 U.S.C. 2656 f(d)(2) (2000) with 18 U.S.C.A. 1993(a) (Supp . 2003) and 18 U.S.C. 43(a) (2000) and 8 U.S.C.A. 1182(a)(3)(I) an d (III)-(V) (Supp. 2003) and 22 U.S.C. 2708(j)(D(A)(2000).215 Compare 22 U.S.C. 2656 f(d)(2) (2000) (limited to "noncombatant targets") with 18 U.S.C. 2332(a)(2000) (limited to acts again st a national of the United States) with 18 U.S.C. 922(a)(22) (2000) (limitedto acts directed against "United S tates persons") with Homeland Security Act of 2002, Pub . L. N o. 107-296, 865(2)(B), 116 Stat. 2135, 2242 (lim ited to persons, property or entities in the United States orUnited States aircraft or vessels).216 HOFFMAN, supra note 20, at 38; see also Seto, supra note 19, at 1232-34 (discussing how differentconduct would be classified as terrorism un der some federal legal definitions but not others); N oteboom,


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needed for the government to obtain a warrant to conduct surveillance, or the basis forinsurance coverage for terrorist attacks. In other words, there is method, or at leastjustification, to the seeming madness of the numerous definitions for terrorism.

The m ain drawback to the nume rous de finitions is that one act may be consideredterrorism under one definition but not under another.21 7 As has been observed, themu ltiple legal defin itions of terrorism result "in overlap, co nfus ion, and ambiguity."21 8Confusion is inherent w hen a term has mu ltiple legal definitions, even w hen the definedterm lacks the conn otations of terrorism, such as exists with "crime of violence."219When the defined term has the judgm ental connotations of terrorism, the potential forconfusion is augmented. A Congressional committee investigating the September 11,2001, attacks identified as one of the problems of the intelligence community "thatpractically every agency of the United States G overnment (USG) w ith a counterterrorismmission uses a different definition of terrorism."220 Paraphrasing the cliche, it is almostas if one agency's terrorist is another agency's freedom fighter. Additionally, it has beennoted that "[conflicting definitions [of terrorism] create a problem of notice; individuals

supra note 8, at 568.217 Se e generally LAQU EU R, supra note 9, at 142 ("For unless there is broad agreement on the definition of[terrorism], there will be the risk that everyone will interpret it in a different way.").Noteboom, supra note 8, at 568; see also Jeffrey F. Addicott, Legal & Policy Implications for a newe r a : The 'War on Terror', 4 SCHOLAR 209, 215 (2002) ("In the United S tates, the difficulties in definition[o f terrorism ]. . . res t in the sheer number of different government instrumentalites that ha ve offeredindependent interpretations w hich, while similar, are not identical.").219 Se e Un ited States v. Charles, 301 F.3d 309, 316 (5 th Cir. 2002) (en bane) (DeMoss, J. , concurring )("There are, in fact, eight different definitions of the term 'crime of violence' in the United States Code an dthe United States Sentencing Guidelines."); see also Unite d States v. Var gas- Dura n, 319 F.3d 194, 203 (5 thC i r . 2003) (Clement, J., dissenting) (referr ing to "the irration ality of having several definitions of 'crime ofviolence' scattered throughout the U.S. Code and Sentencing Guidelines"), rev'd by - F.3d. , 2004 W L40558 (5 * Cir. Jan. 9, 2004) (en bane).220 S U B C O M M I T T E E O N T E R R O R I S M A N D H O M E L A N D S E C U R I T Y , H O U S E P E R M A N E N T S E L E C T C O M M I T T E EO N I N T E L L I G E N C E , 107th C O N G . , R E P O R T O N C O U N T E R T E R R O R I S M C A P A B I L IT I E S A N D P E R F O R M A N C E P R I O RT O 9-11 (July 2002), available at http://www.fas.org/irp/congress/2002_rpt/hpsci_ths0702.html.


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are uncertain wh ich definition applies to them and thus which conduct is prohibited."22 1More fun dam entally, the U nited States has long been criticized for being inconsistent onwhom it calls a terrorist;2 2 hav ing multiple definitions of terrorism in federal law helpsfuel these criticisms.

B. Abando ning Legal Definitions of TerrorismOne possible solution to the nume rous legal definitions of terrorism is to abandon

th e legal definition al quest. Three decades ago, R.R . Baxter lamen ted the meeting ofterrorism and law: "We have cause to regret that a legal concept of ' terrorism' was everinflicted upon us. The term is imprecise; it is ambiguous; and above all, it serves nooperative legal purpose."223 As a nother comme ntator summarized, "terrorism is not alegal term of art."224

Similar to the scholarly discussion on the difficulties of defining terrorism, severalreasons have been offered for why terrorism is not well-suited fo r legal definition. First,"it is virtually impossible to anticipate all potential scenarios, or to devise a legal schemethat specifically identifies every p ossible terrorist armed attack."225 Further, mostterrorist acts are already criminal acts unde r statutes covering, for examp le, murder,kidnapping, explosives, and conspiracy,22 6 so that terrorism laws, a rguably, serve no

221 Note, Blown Away? The Bill of Rights after Oklahoma City, 10 9 HARV. L. R E V . 2074, 2086 (1996).22 2 See, e.g., Cooper, supra note 8, at 890 (referring to the State Department list of terrorist states as "a kindof hypocrisy"); WHITE, supra note 6, at 8; James T. Kelly, Th e Empire Strikes Back: The Taking of Jo eDoherty , 61 FORDHAM L. RE V . 317, 398 (1992) (comparing the imprisonment of an Irish R epublican"terrorist" Jo e Doherty with the White House reception of South African "terrorist" Nelson Mandela).223 R.R. Baxter, A Skeptical Look at the Concept of Terrorism, 1 AKRON L. RE V . 380, 380 (1974).Guy R. Roberts, Self-help in Combating State Sponsored Terrorism: Self Defense an d PeacetimeReprisals, 19 CASE W. RE S. J . INT'L L. 243, 249 (1987); see also MALIK, supra note 2, at 22 ("Terrorism isnot . . . a precise jurid ical term.").225 Beck & Arend, supra note 5, at 216; see also HOFFMAN, supra note 20, at 15; WHITE, supra note 6, at 3.226 See CHARLES DOYLE, TERRORISM AT HOME: A QUICK LOOK AT APPLICABLE FEDERAL AND STATECRIMINAL LAWS, C ongressional Research Services (2001) ("The co nduct we most often associate withterrorism - bombings, assassinations, armed assaults, kidn appin g, threats - are generally outlawed by bothfederal an d state law."); see also WHITE, supra note 6, at 7 ("[A]1 1 errorist activity involves criminal


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use fu l legal purpose. Add itionally, it has been argued that legal definitions of terrorism"are qu ite useless because they account for neither th e social nor the political natu re ofterrorism."227 Precisely because terrorism is politically m otivated, "it is only in the realmof th e political that thes e definitions [o f terrorism] have any use fu l employment."22 8 It isth e political m otivation of terrorism that separates it from ordinary crime.229 Finally,since the use of the word terrorism is, at least to some, judgmental and subjective,23 0 it isill-suited for the (ideally) objective n ature of legal definitions.23 1

The abandonment of legal definitions of terrorism, w hile appealing in some ways,is not feasible. The criticism that th e Ame rican government is inconsistent in dealingwith terrorism would u ndou btedly increase if legal definitions of terrorism wereabandoned. Further, al though not a war in the const i tut ional sense ,23 2 a war on terrorismhas been proclaime d by the President23 3 an d supported by Congress throughresolutions. 23 4 It is illogical for the United States to have a war on something it does noteven attempt to def ine, an d "[t]he 'w ' word has been used and now cannot bewithdrawn."23 5

activity.").227 WHITE, supra note 6, at 8; see also LAQUEUR, supra note 9, at 144 ("The application of legal norms is oflittle help in establishing th e political character of a terrrorist movement.").228 Cooper, supra note 8, at 885; accord M ALI K, supra note 2, at 52 ("General convention has long held thatterrorism must have a political component."); SCHMID, supra note 10, at 57 ('Terrorism, in everydaypar lance , is often seen apolitical crime or political murder.").See SCHMID, supra note 10, at 25-32; Cooper, supra note 8, at 885; M ALI K, supra note 2, at 23; WHITE,supra note 6, at 19-22.230 See, e.g., WHITE, supra note 6, at 4; Cooper, supra note 12, at 106; HOFFMAN, supra note 20, at 31;Porras, supra note 6, at 124.231 Se e generally D anie l Givelber, The New Law of Murder, 69 I ND. L.J. 375, 38 8 n.57 (1994) ("[A]ny l egaldefinition mus t be expressed in terms of the objective characteristics .").232 See U.S. CONST, art. I, 8, cl. 11 .233 See, e.g., Kathar ine Q . Seele & El isabeth Brum il ler, After Attacks: The President; Bush Labels AerialAttacks 'Acts of War', N.Y . TIMES, Sept. 13, 2001, at A 16.234 See, e.g., Condemnation of Terrorist Attacks, Pub. L. No. 107-39, 7, 115 Stat. 222, 222 (2001)(Congress "commits to support increased resources in the w ar to eradicate terrorism.").235 See also M ichael H oward, What's in a Name? How to Fight Terrorism, 81 FOREIGN AFF., Jan.-Feb.2002, 8,10.


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39made that determinations serving such diverse public policy goals an d theircorresponding societal implications require different definitions. Additionally, an all-inclusive definition would be difficult to draft since it should ideally "include al l that itseeks to define" and "exclude all else."243 Further, since the attributes of terrorismchange over time,244 a definition with such wide consequences would make the inevitableamendment process more difficult since, at least in theory, Congress would be morecontemplative on the proposed changes to the definition in light of its the wider-reachingconsequences.

V. ConclusionFollowing the many eager souls who joined the definitional quest, federal

lawmakers have created twenty-twodifferent definitions of terrorism and relatedconcepts. This article has examined the scholarship on defining terrorism, the numerousfederal legal definitions of t

Documents

T2 B7 Various Letters Fdr- Letter From Nicholas J Perry Re Article- The Numerous Federal Legal Definitions of Terrorism 659