Though the United States has been engaged in a Global War on Terror for more than a decade, the U.S. Government surprisingly does not have a standardized definition of terrorism that is agreed upon by all agencies. The State Department, Federal Bureau of Investigation and a number of other government agencies all utilize differing definitions of what constitutes an act of terrorism. This lack of agreement has allowed individual agencies to present different and, in some cases, far more inclusive definitions of terrorist acts enabling the use of expanded investigative procedures that might not be applicable in other agencies.
The FBI utilizes a definition of terrorism based upon the agency’s general functions under 28 CFR § 0.85. Under this regulation an act of terrorism is defined by “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” The USA PATRIOT Act expanded this definition to include domestic acts within the definition of terrorism. Section 802 of the USA PATRIOT Act modified the legal definition of terrorism (18 USC § 2331) to include a category of “domestic terrorism” that is defined by “acts dangerous to human life that are a violation of the criminal laws of the United States or of any State” intended to “intimidate or coerce a civilian population”, “influence the policy of a government by intimidation or coercion” or “affect the conduct of a government by mass destruction, assassination, or kidnapping” that are conducted primarily within the jurisdiction of the U.S. At the time, this expansion of the definition of terrorism was decried by the ACLU as “broad enough to encompass the activities of several prominent activist campaigns and organizations.”
One of the defining features of terrorist acts has always been a component of violence. Even under the expanded definition of terrorism created by the USA PATRIOT Act, there must be an act that is “dangerous to human life” indicating some form of physical harm to others could arise from the action. However, the Homeland Security Act of 2002, which created the Department of Homeland Security, extended the definition of terrorism further by including any act that is “damaging to critical infrastructure or key resources.” Though this definition differs from the legal definition of international and domestic terrorism under 18 USC § 2331, the modified definition is currently used by DHS as the basis for their own activities and intelligence products that are disseminated to federal, state and local law enforcement. The modified definition of terrorism is presented in a revised Domestic Terrorism and Homegrown Violent Extremism Lexicon published last year by DHS:
Any activity that involves an act that is dangerous to human life or potentially destructive to critical infrastructure or key resources, and is a violation of the criminal laws of the United States or of any state or other subdivision of the United States and appears to be intended to intimidate or coerce a civilian population to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping.
Notice that the statement “potentially destructive to critical infrastructure or key resources” is part of a disjunction, indicating that the act need not be “dangerous to human life” for it to be considered an act of terrorism. This means that, according to DHS, a non-violent actor could be capable of committing an act of terrorism simply by engaging in “potentially destructive” behavior towards some part of the nation’s critical infrastructure. Due to the fact that large sections of domestic infrastructure, including everything from banks to bridges to milk processing plants, are now considered critical infrastructure, a wide range of “potentially destructive” actions could be investigated by DHS or any one of the dozens of fusion centers around the country as potential acts of terrorism. The DHS Domestic Terrorism Lexicon states that the definitions presented in the document are designed to “assist federal, state, and local government officials with the mission to detect, identify, and understand threats of terrorism against the United States by facilitating a common understanding of the terms and definitions that describe terrorist threats to the United States.”
A recent report from the Congressional Research Service states that this ambiguity in the definition of terrorism can create confusion “in the investigative process regarding exactly when criminal activity becomes domestic terrorism.” The report also notes that the government often uses the terms “extremist” and “terrorist” interchangeably creating further ambiguity as to what exactly constitutes an act of terrorism. A 2009 study from Syracuse University found that U.S. Federal District Courts, the Department of Justice’s National Security Division and federal prosecutors all rely on different criteria to determine whether or not specific cases involve terrorist acts. This lack of agreement has led to widespread failures to obtain prosecutions of suspects recommended for charges by investigative agencies. In fact, the study found that from 2004-2009 “assistant United States attorneys all over the country declined to bring any charges against two out of every three (67%) of the thousands of terrorism matters that the investigative agencies had recommended for criminal prosecution.” The Syracuse study ends with a warning about the ambiguity surrounding the definition of terrorism:
The strong evidence that various parts of the government do not share a common understanding about terrorism has important consequences for all Americans. Those most immediately affected are the thousands of people whom the investigative agencies each year incorrectly recommend for prosecution in federal court. But to the extent that the investigators systematically waste their time targeting the wrong suspects, the chances increase that they will fail to identify the real terrorists who right now may be seeking to plant bombs, spread poisons or otherwise harm a much larger number of innocent people.
To solve these problems the study offers a surprisingly straightforward solution: come up with “a clear and understandable definition of terrorism.”