TERRORISM DEFINED (THE DRAMA)

Most issues common to Homeland Security and National Security (HSNS) are centered on terrorism or counterterrorism.  As such, I decided to start my blog with a post about defining terrorism, and also to provide the tone and context of what you might expect to see on the blog.  I intend for this to be a scholarly blog that gives a glimpse to various subject matters as each post could generally be a thesis and or a law review article.  The blog will also contain colloquialism, humor, and some memes because I desire for it to be a fun educational read with hints of my personality.

There are many reasons that made me choose to have a career in the legal profession, but one of the main reasons is the “drama” and “creativity” behind it all.  See, at times, I can be a drama queen (thanks mom 😁😁).  Consequently, finding a career that wasn’t center stage or in Hollywood was crucial for my fulfillment.  Most people think that the study of law with the exception of criminal law or interesting civil litigation is extremely boring.  I on the other hand, find a lot of drama and humor in the study and practice of law that at times has left me bruised from cracked ribs and puffy eyes because of laughter.

Hence, why I chose this subject as my first post.

Disclaimer: This post will not have a lot of legal analysis as it is intended to be an introduction to an area of law that I love dearly.  HSNS is an area of law that requires a practitioner to balance counter-terrorism policy against other areas of law like constitutional law, immigration law, trade law etc. as such, I do not make light of the consequences or effects it has upon human life.  I use humor to describe what can be a very complicated area of law, but do not use humor in the analysis of incidents that happened.

Terrorism, is the unlawful use of violence and intimidation especially against civilians.  However, the subject garnered “mainstream attention” after September 11, 2001 when Al-Qaeda planned and successfully executed terrorist attacks in the United States.[1]  Legislators in the U.S., found themselves in a precarious situation because they realized that current criminal statutes as is, were ill-equipped to combat terrorism.  And so, they decided to pass the USA PATRIOT ACT.[2]  And it is herein, the drama begins.

As a lay-person, the “USA PATRIOT” act sounds as it should.  Very patriotic and anti those bad guys.  Simple, right?  What is hilarious about the “USA PATRIOT” act is that it is actually an ACRONYM.  Yes people!  Someone had the job of finding the words that would fit USA PATRIOT act into something that would actually make sense and, one that gives a highlight of what you expect the instrument to accomplish.  I imagine the conversation between the drafters’ and legislators’ going like this:

Super Duper Creative Lawyer: Well, how dramatic do you need the name of the statute to be?

U.S. Legislator/s: Very dramatic.  You know we are America and we don’t basic and we are very patriotic.  So make sure it is very patriotic and not basic.

Super Duper Creative Lawyer: Say no more!

Say no more

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.  😊😊

And here we are.  I was sold.  My initial reaction like most Americans was that, this was uncharted territory and honestly, quite scary.  It was not well received by the public and was even dubbed as, the document that eradicated civil rights.  However, as an attorney, I had an obligation to examine the instrument to determine whether it was effective in its objective.  Like all statutes, it is not perfect and could use some amendments because the field of HSNS is extremely dynamic.  As I continued to study the document, I couldn’t stop laughing because, it was so United States Code dramatic (we really do not write statutes like other countries).

For comparative law purposes, let us first look at how other jurisdictions use language to draft their legal instruments and also how they define terrorism:

United Kingdom:

The UK does not define who or what a terrorist is, but instead defines what an ACT of terrorism is, thus, persons charged with acts of terrorism are terrorists.[3]

terrorism” means the use or threat of action where the action falls within subsection (2), the use or threat is designed to influence the government [F1or an international governmental organisation or to intimidate the public or a section of the public, and the use or threat is made for the purpose of advancing a political, religious [F2, racial] or ideological cause

Canada:

Similarly in Canada, their criminal code doesn’t have a definition for terrorism but defines what constitutes terrorism.[4]

terrorism as an act committed “in whole or in part for a political, religious or ideological purpose, objective or cause” with the intention of intimidating the public “…with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act.”

Australia:

Australian counter-terrorism laws also do not define who or what a terrorist is.  Instead, terrorist acts are defined.[5]

A person commits an offence if the person engages in a terrorist act….A person commits an offence if: the person provides or receives training; and the training is connected with preparation for, the engagement of a person in, or assistance in a terrorist act; and the person mentioned in paragraph (a) knows of the connection described in paragraph (b).”

United Nations:

The United Nations does not have a definition for terrorism thus no definition for terrorism.[6]  However, a draft convention defined terrorism as:

All criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public.”

United States of America:

Queue in music from the Phantom of the Opera.[7]  For starters, please note how easy it is for a layman to read and comprehend what terrorism is in other jurisdictions.  In the U.S. we define both terrorism and terrorists.

Definition of terrorism is:

In the U.S. we define both domestic and international terrorism at 18 U.S. Code § 2331.[8]

As it relates to the U.S. terrorist definition drafting session, I again imagine it went something like this:

 

Do the most

All U.S. laws are passed as public laws, then later are codified under what is called the United States Code (we will be visiting the drama that is the U.S. Code at a later blog… love it… really I do.  Why make something easy to find?).  The definition for what constitutes a “terrorist”, did not make it into the U.S. code until October 2006.[9]  (We shall discuss the how and why at a later post)

Hint: We did not use the word “terrorist”. We practice legalese Olympics in America. They (the international community) did not see this coming):

  1. A)2006 definition

In 2006, the legislature passed the Military Commissions Act[10] to address some legal issues and due process issues associated with terrorism that had not been addressed under the USA PATRIOT ACT.

The first definition of “terrorist” was dramatic and the usual mouthful that is the U.S. Code:

Unlawful enemy combatant.—(A) The term “unlawful enemy combatant” means—

(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense

However, it is important to note that the term “unlawful combatant” first appeared under U.S case law in Exparte Quirin.[11]

  1. B)POST-2009 and current definition

In 2009[12], 10 USC 948a was repealed and replaced by the Military Commissions Act of 2009.[13]  The new definition upped the ante and was even more dramatic.  (I haven’t read the congressional notes or reports to gain an understanding of why the definitions were changed, but I can infer that it was maybe due to a change in administration.  Nonetheless, they were both humorous and creative).

UNPRIVILEGED ENEMY BELLIGERENT.–The term ‘unprivileged enemy belligerent’ means an individual (other than a privileged belligerent) who—

(A) has engaged in hostilities against the United States or its coalition partners;

(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or

(C) was a part of al Qaeda at the time of the alleged offense under this chapter.”

The language is just fascinsting:

  1. a)The shade = the term unprivileged enemy belligerent means an individual (other than a privileged belligerent). I think most people understand that the antonym to unprivileged is privileged, but just in case folk might not catch it the first time around, for good measure, they threw it in there.  I love this… hilarious and brilliant.
  1. b)We don’t use regular words =
  1. i)hostilities (😂😂😂) other jurisdictions just use “terror acts”.  Nope not us.
  2. ii)Unprivileged…… this is just funny because it is.

iii)           Belligerent……. This is where I lost a rib… Who talks like this? Typically, the word combatant is used to describe a “fighter.”  I guess we just felt that calling terrorists “fighters” or combatants would give them “street-cred” (which is actually a brilliant counter-terrorism strategy).

So, belligerent it is.  SAVAGE and I love the thinking behind it.  Terrorist organizations have many goals.  One of their main goals is to get recognition and legitimacy.   We clearly were not about that life.

 

US Not about that life

Hopefully, I have been able to provide a glimpse of HSNS law and why I love the practice of law especially in America.  I find that the writing is very complementary to our culture of, we like everything big (aka dramatic) e.g. our cars, appliances, highways etc., naturally, our statutes should be as well.  (FYI, I do not have any information on how these sections were drafted, it’s just more of what I hope happened).

This is a light-hearted approach to introduction to U.S. counter-terrorism and I hope that not only did you enjoy it, but that you learned something about how various jurisdictions define terrorism and terrorists.  I would love to hear what your thoughts are.  Also, if you happen to be aware of other jurisdictions that have amazing language and you would like to share, please drop it in the comment box down below.

 

[1] https://www.9-11commission.gov/report/911Report.pdf

[2] Public Law 107-56, October 26, 2001 https://www.gpo.gov/fdsys/pkg/PLAW-107publ56/pdf/PLAW-107publ56.pdf

[3]  Terrorism Interpretation UK https://www.legislation.gov.uk/ukpga/2000/11/section/1

[4] Terrorism defined Canada http://laws-lois.justice.gc.ca/PDF/C-46.pdf

[5] Australia Counter-terrorism statutes https://www.legislation.gov.au/Details/C2017C00408

[6] Counter-terrorism UN https://www.un.org/sc/ctc/wp-content/uploads/2017/01/2006_01_26_cted_lecture.pdf

[7] Theme Song Phantom of the Opera https://www.youtube.com/watch?v=-JaeBxYCI9k

[8] https://www.law.cornell.edu/uscode/text/18/2331

[9] PL 111-84, October 28, 2009, 123 Stat 2190

[10] PL 109–366, October 17, 2006, 120 Stat 2600

[11] Ex parte Quirin, 317 U.S. 1, 31, 63 S. Ct. 2, 12, 87 L. Ed. 3, modified sub nom. U.S. ex rel. Quirin v. Cox, 63 S. Ct. 22 (1942)

[12] Terrorist defined in the United States https://www.law.cornell.edu/uscode/text/10/948a; official U.S. government site https://www.gpo.gov/fdsys/pkg/USCODE-2009-title10/pdf/USCODE-2009-title10-subtitleA-partII-chap47A-subchapI-sec948a.pdf

[13] PL 111-84, October 28, 2009, 123 Stat 2190

 

Disclaimers:

1)  Opposing views are welcome.  However, negativity, trolling, name calling, and or disruptive remarks will not be published. 

2)  I have a full-time job and involved in other activities as well.  To that end, I will do my very best to provide citations and research, but it may not be thorough (not easy to do legal research on open internet sources) or even cited per blue-book or academic format.  It takes a lot of time just to conduct preliminary research on a topic.  Please feel free to correct any errors in the comment section and I will edit the post.

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