Spatial terrorism.

AuthorSidhu, Dawinder S.
PositionRedefining terrorism using a spatial rather than intent model

ABSTRACT

Terrorism, under federal law, generally means an act of politically or socially motivated violence perpetrated against innocents. Terrorism within the meaning of federal law, in other words, exists only if a cognizable and particular motive is uncovered. This definition also sees the United States as an undifferentiated landscape; by its own terms, it fails to take into account any geographic nuance in acts of mass violence.

This Article suggests that spatial considerations are relevant in determining whether an act of mass violence constitutes an act of terrorism for purposes of federal law. It points to cities--which are characterized by a highly concentrated, fluid population, and which thus have more potential victims of indiscriminate violence--to demonstrate the propriety of considering space in an analysis of whether terrorism has occurred. It further argues that spatial dimensions lend support to shifting the definition of terrorism away from an exclusively instrumental, subjective intent model and towards a more comprehensive descriptive, objective action paradigm.

The existing terrorism scheme has generated confusion and unsatisfactory results. As incidents of mass violence continue to occur, the need for a coherent terrorism definition is particularly pressing and acute for prosecutors, judges, public officials, and a society attempting to conceptualize and categorize these incidents. Spatial considerations may provide greater consistency and clarity to the existing definitions of terrorism, further the underlying purposes of defining terrorism as an independent legal harm, and catalyze a recalibrated, proper definition of terrorism.

TABLE OF CONTENTS Introduction I. Purposes of the "Terrorism" Classification A. Basic Meanings of the Term B. Terrorism as a Separate Category of Legal Harm II. Federal Terrorism Law A. Federal Definition of Terrorism B. Application of the Federal Definition to Recent Events III. A Spatial Model of Terrorism A. The Relevance of Space B. Space and Terrorism IV. Clarifying Thoughts Conclusion INTRODUCTION

In recent months, the people of the United States have witnessed and suffered several incidents of mass violence. The incidents--fresh in the hearts and minds of the people (1)--need no elaboration. Brief examples are therefore sufficient to provide the necessary factual background for this legal discussion.

On July 20, 2012, in Aurora, Colorado, James Holmes tossed gas canisters into a movie theater crowd that had assembled for the premiere of a widely anticipated feature film, and then proceeded to open fire, killing twelve individuals) On August 5, 2012, Wade Michael Page entered the grounds of a Sikh temple in Oak Creek, Wisconsin, killing six worshippers and ultimately killing himself during a firefight with responding law enforcement officers. (3) On December 14, 2012, Adam Lanza shot and killed twenty-seven individuals, including twenty children (none older than seven years old), at the Sandy Hook Elementary School in Newtown, Connecticut, meeting the same self-inflicted fate as Page. (4) On April 14, 2013, twin bombs exploded near the finish line of the Boston Marathon, killing three and injuring over 170 individuals. (5)

These incidents are unique in their respective factual circumstances. They are bound nonetheless by a common, self-evident truth: each was a horrific event in which numerous innocent lives (and only innocent lives) were targeted and violently eliminated. It is perhaps because of the heinous nature and scale of the incidents that public leaders at the highest levels and others have considered the incidents to be acts of terrorism. For example, speaking at a memorial service for the victims of the Oak Creek shooting, Attorney General Eric Holder stated, without equivocation, that "precisely what happened here [was] an act of terrorism." (6) In remarks following the twin bombings in Boston, President Obama called the incident "an act of terrorism." (7) President Obama also declared, "Any time bombs are used to target innocent civilians, it is an act of terror." (8) Given the underlying and unifying qualities of these incidents, in which many innocents (and only innocents) were randomly targeted and killed, the Attorney General and the President's particular assessments, as well as the President's general rule, seem appropriate.

Federal law, however, seems to disagree. Federal law generally requires that an act of violence be politically or socially motivated to constitute an act of terrorism? With respect to the Oak Creek shooting, for example, the perpetrator died at the scene, frustrating any attempt to identify his motive. (10) Other evidence obtained since the shooting has failed to reveal the motivation necessary to consider it an "act of terror" under federal law. (11) Thus, the Attorney General's emphatic statement that the Oak Creek shooting constituted terrorism cannot be squared with federal terrorism law. With respect to the Boston bombings, to provide another example, President Obama called the incident an act of terrorism before there was any knowledge of who committed the atrocities, let alone why. (12) Yet the "why"--a political or social motive--needs to be present in order for federal terrorism law to follow. Accordingly, due to the absence of an identifiable motive, President Obama's statement that the Boston Marathon bombings were an act of terrorism could not be supported under federal law.

As these examples reveal, there is an important disconnect between the leaders' positions--which seem tied to the abhorrent nature of the incidents--and the existing federal definitions--which are tied, by contrast, to subjective motivation. (13) The Articles in this issue of the Fordham Urban Law Journal explore the relationship between cities and terrorism. This particular Article argues that the spatial characteristics of an incident may help inform the normative question as to when an incident should qualify as "terrorism" within the meaning of federal law. It suggests specifically that the spatial dimensions of an incident not only matter, but indicate that the federal definition of terrorism should be triggered by "objective" conduct, not just by "subjective" motivation. That is, in resolving the apparent tension between the "what" (the objective paradigm) and the "why" (the subjective paradigm), the "where" (spatial considerations) of an incident is both relevant and points to the propriety of including the objective side of the spectrum in federal terrorism law.

This Article arrives at this conclusion by way of the following structure: Part I looks to the early conceptual foundations of terrorism--that which causes terror or fright (a descriptive understanding) and that which is calculated to cause terror or fright (an instrumental understanding). It also explores the first-order purposes of terrorism law: to socially marginalize the perpetrator of premeditated mass violence against innocents, and to apply an especially robust set of legal punishments to individuals that are deemed to be "terrorists." Part II summarizes the current definition of terrorism under federal law. It also applies this definition to the four aforementioned incidents to demonstrate how the existing definition works in practice.

Drawing on other doctrinal areas that take physical settings into account, Part III suggests that the geographic qualities of an act of violence are salient in ascertaining whether "terrorism" has occurred. Cities, for example, are home to more innocents and thus more potential victims of indiscriminate violence. Part III also addresses whether, aside from cities, other spaces in our society, such as schools or places of worship, deserve special solicitude from federal terrorism laws. From this discussion, it proposes this definition: "terrorism" means premeditated violence perpetrated indiscriminately against innocents, where the factors that may support the terrorism designation are whether the violence was (1) perpetrated in an area with a high concentration of innocents, a public area of constitutional significance wherein individuals congregate or associate, or an area essential to the operation of the government wherein individuals work, engage in official government business, or are educated, or (2) calculated to further a political, religious, or social agenda. Next, Part III will apply this reformulated understanding of terrorism--one that acknowledges an objective or descriptive paradigm of terrorism--to the same four incidents to show how the proposed definition would play out. Part IV responds to potential counterarguments, including the concern that an "objective" definition of terrorism is too generous and will dilute its meaning, by offering limiting principles. This Part also makes clear that while objective conduct is the preferred definition of terrorism according to this Article, motive-based terrorism still may fall within that definition.

"Terrorism" remains, perhaps inherently, an ambiguous and loaded term. At present, there are outstanding questions as to why one incident is designated an act of terrorism, while another not. (14) As with obscenity, a belief as to whether terrorism has occurred seems grounded more in an intuitive, visceral reaction than in the dispassionate application of established rules. (15) Whether an incident falls within the bounds of terrorism seems more personal than formal, (16) and these judgment calls are further complicated by the soft borders between terrorism and other categories of cognizable harm, such as simple premeditated murder. (17)

This Article does not pretend to solve the definitional problems with "terrorism," but attempts to offer considerations that may tend to reduce not only the indeterminacy associated with the term, but the apparent mismatch between political or social views as to when terrorism occurs, on the one hand, and the law as to...

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