Amounting to Crimes and Terrorism

¶ … amounting to crimes and terrorism against the United States occurred, causing concern among citizens, government officials and the president alike. Almost exactly three years ago, President Bush, in his State of the Union address, mentioned two separate acts against the United States and the manner in which the United States fought against those that had committed the acts. The attacks against the World Trade Center in 1993 were considered to be acts of crime, and the attackers were legally tried, convicted and sent to prison. The attacks on September 11, 2001 were considered to be acts of terror, and war was declared against the attackers. However, there is no current clarity as what acts constitute crimes or acts of terror. This speech raises the issue that the positions taken by the three branches of government are not clearly defined, as there appears to be no consistency and an overlap in the categories. Furthermore, the disparate treatment of similar acts reveals a distinct need for a third and fourth category, because current anti-terrorism efforts fall within the criminal model, the war model, or both. This paper will analyze the existing roles used by the legal system to identify and counter acts against the United States, will explain the need for new categories, and will outline these potential new categories.

Acts Considered to be Crimes

It appears that historically, acts of terrorism were considered to be crimes by the judicial branch of the government. These so-called acts of terrorism consisted of violent acts with a purpose. The Criminal Syndicalism Acts of the early twentieth century were enacted to fight against these violent acts committed against businesses by workers seeking to organize unions. These acts defined unlawful acts against businesses as unlawful acts of force in order to accomplish change in industrial ownership and control. These early acts identify a use aspect of violence, much in the same manner that terrorism acts are conducted for. These early acts defined these purposeful acts as terrorism, but treated them as crimes. This analysis has incorrectly laid the foundation for the disparity in the treatment of crimes and acts of war, because acts of war need a purpose requirement. An act of crime requires that the actor intends to commit an act that is prohibited, and no purpose is needed. Later actions by the executive branch of government appear to contradict the early actions of the judicial branch. For example, several decades later, in 1983, the Department of Justice defined acts that seek to achieve political change as something other than a crime. In this case, it was outlined that when determining whether or not political change was the goal of the acts, the FBI should take into consideration the following: the magnitude of the threatened harm; the likelihood it would occur; the immediacy of the threat; and the danger to privacy and free expression posed by an investigation (Alliance to End Repression v. Chicago, 742 F.2d 1007, 7th Cir. 1984). In Hamdi v. Rumsfeld, Justice Scalia asserted that terrorist acts should be considered as criminal acts, but his analysis also has other implications. This indicates a transformation in the way acts of violence were to be treated. If acts had a political purpose, then they were acts of war; if they were unlawful, then they were crimes.

Acts of War

The treatment of such acts by the legal system, however, has been inconsistent with the theory presented above by the United States Department of Justice. For example, several unlawful acts have rightfully been treated as crimes, such as the 1963 bombing in Birmingham, where the members of the Ku Klux Klan, responsible for the bombing, were tried and sentenced to life in prison. These acts were both intentional and unlawful. The 1993 World Trade Center Bombing also resulted in convictions for this unlawful act. These acts were clearly treated as crimes, as a result of the fact that they were illegal acts with no purpose. However, in comparison, the 1995 Oklahoma City Bombing was also treated as a crime, and the attackers were tried and convicted. There are differences in the facts of this case with the 1963 Birmingham Bombing and the 1993 World Trade Center Bombing. The Oklahoma City Bombing was incorrectly classified as a crime and not an act of terror or war. However, this act should have been treated as an act of war because Timothy McVeigh and Terry Nichols committed these acts not merely as an unlawful measure, but with a purpose toward the United States government. This acts of violence was an act of revenge; thus while it was illegal, it also had a purpose. The purpose may not be as well defined as the attacks of September 11, 2001, because the September 11 attacks were viewed as threats to national security. The acts involved in the 1995 Oklahoma City Bombing sent a message or threat to national security in the form of revenge. Finally, Robertson's opinion in Hamdan v. Rumsfeld provides an example of terrorist acts that should be considered as acts of war.

Judicial, Executive and Legislative Branches

The legislative branch appears to further build on the definition presented by the executive branch, adding a few elements. For example, S.J. Res. 23 (107th Congress, 1st Session), defines acts of war in the same manner in regard to the acts committed on September 11, 2001. S.J. Res. 23 states that acts that render self-defense actions and acts that are considered to be threats to national security are acts of war. These few actions taken by the judicial, executive and legislative branches of the United States government illustrate the discrepancies in the manner in which each branch treats violent acts of terrorism. The judicial branch does not appear to be effectively using the existing categories because there does not appear to be any uniformity in its application. The legislative branch appears to be in line with the executive branch but not with the judicial branch. The executive branch takes the definition distinguishing these crimes a bit too far, and as a result it becomes over reaching in its application. Thus, the actions taken by the legislative branch appear to be the most consistent, and new categories could be added that work in connection with the actions taken by the legislative branch to date.

Need for other Categories

Another inconsistency implying the need for a third category is the treatment of 62-year-old Faith Fippinger, who traveled to Iraq in 2003 as a humanitarian, guarding oil refineries, teaching in schools and working in hospitals. These actions are not acts with an unlawful intent, but instead can be viewed as a threat to national security because she is acting in the best interests not of the United States, but of Iraq. She did not go to Iraq intending to commit a crime, but is treated as a criminal because she broke the United States economic embargo by traveling to Iraq and spending money there. Instead of being treated as a criminal, her actions could be viewed as a threat to the national security of the United States because she went there to act as a human shield to prevent was there by the United States. The treatment of Faith Fippinger indicates a need for another category, where her actions do not exactly fit clearly into either category. Furthermore, a study conducted in January 2003 by the General Accounting Office concluded that 75% of the convictions that the Justice Department classified as international terrorism were incorrectly labeled, and included common crimes such as forgery. These crimes cannot even be placed in the same category as the actions of Faith Fippinger, where she did not intend to commit a crime. Forgery involves an intent to defraud, meaning that it is an unlawful act with an intention.

New Categories

The inconsistencies and overlap in treatment in the examples above indicate a need for a potential new third category, when acts against the United States can be considered both acts of war and crimes. This is illustrated in the President's Military Order regarding the detention, treatment, and trial of certain non-citizens in the war against terrorism, dated November 13, 2001. In this order, the President states that it is not practicable to apply in military commissions the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States courts. For example, the acts of September 11, 2001, can be considered to fall within both categories. They were both unlawful and threats to national security. A potential third category could consist of acts that are not merely unlawful, but have an intention to cause some type of illegal act. This category would change the outcome in cases such as Faith Pippinger, where she did not intend to cause an illegal act, but her actions were unlawful. This category could also change the outcomes in forgery and other acts that are intentional, and are classified as acts of war, as in the study conducted by the General Accounting Office. In this case, another category should be defined where the act was intentional, and the long-term eventual outcome was to commit an act of war against the United States, but this effect was not a direct threat to national security. In this case these acts would still be classified as crimes.