Defining 'terrorism'

"'When I use a word,' Humpty Dumpty said in a rather scornful tone, 'it means just what I choose it to mean – neither more nor less.' 'The question is,' said Alice, 'whether you can make words mean different things.' 'The question is,' said Humpty Dumpty, 'which is to be master – that's all.'"
– Lewis Carroll
"Through The Looking Glass"

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These days, the word that needs defining is terrorism.

An article in the Legal Times newspaper about President Bush's order authorizing military tribunals for trying foreign terrorists said that "the devil's in the details." The devil's also in the definitions. What is this thing we are fighting, this thing called "terrorism"?

In "Terrorism and the Law," co-author Yonah Alexander writes that "some governments speak with a bewildering variety of voices on the subject of terrorism. The United States is a case in point." States as well as the federal government define terrorism in lots of different ways; state laws on the subject come in at least nine different varieties. At another time, this might have been only an interesting topic for a law-school lecture. Today, it can put our freedom in serious jeopardy.

Since the 1980s, the FBI has defined terrorism as "the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in the furtherance of political or social objectives." This definition directly links an action with an intention and a purpose.

Along comes Osama bin Laden, al-Qaida, hijacked airliners, Sept. 11, and the war on terrorism. The entire Department of Justice has been re-tooled, and thousands of FBI agents deployed, to fight this war. Americans are told to be vigilant about this thing called "terrorism."

But remember, the devil is in the definitions. And we live in a culture that makes definitions ever more fungible. In 1987, my law school was the first public university to adopt a censorship policy, one of those "speech codes." Though the goal was to ban unwelcome, politically incorrect opinions, they could not be honest about it. My First Amendment professor drafted this censorship code, after all. So they simply defined those bothersome categories of speech as "harassment" and then banned harassment. Problem solved.

The same thing is happening with religion, or at least with Christianity. In New York City, the apparent goal is to allow in the public schools the symbols of non-Christian religions. They cannot, of course, be honest about such blatant discrimination. So they define religious symbols such as the Jewish menorah and the Muslim crescent (but not the Christian cross or creche) as secular, and then ban religious symbols. Problem solved.

What if this regulation-by-definition strategy is applied today in the war on terrorism? In the so-called USA Patriot Act, signed into law by President Bush, section 802 tweaks the definition of domestic terrorism. It now includes criminal acts that "appear to be intended … to influence the policy of a government by intimidation or coercion."

While the traditional definition includes criminal acts that actually intend to intimidate or coerce government, this new law includes criminal acts that "appear to be" intended to intimidate or coerce government. Appear that way to whom? Well, the government of course.

But the "T" word is being used much more loosely than that these days. Tom Ridge, the new director of Homeland Security, said in a briefing that Americans who "bash" Muslims by criticizing them as different are terrorists. In Alabama, an FBI supervisor briefing new agents said that terrorists include constitutionalists and fundamentalist Christians. The FBI's Project Megiddo had a few years ago already suggested that people with certain political and religious views are at least potential terrorists. The United Nations is now attaching the label terrorism to practices, such as child prostitution, that it wants to suppress. In other times, these might have been merely ignorant statements or attempts at political marketing; today, they are frightening because he who sets the definitions becomes the master.

The Supreme Court has repeatedly held that "precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." The Court said that about freedom of speech. How much more is "precision of regulation" needed when our property, freedom and even our lives are at stake?

The Court has held that "a law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law." The more that's at stake, the clearer our government needs to be.

These times, too, require more – rather than less – clarity and consistency in defining labels that carry such ominous consequences. It's hardly any step at all from censoring unpopular speech by labeling it harassment to suppressing unpopular views by labeling them terrorism. Preventing that step is what requires our vigilance or "we the people" will no longer be the master.