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Terrorism - Terrorism And Law

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There is no established legal definition of terrorism. Internationally, efforts within and outside the United Nations have failed in the face of widely divergent perceptions of what constitutes terrorism and who are terrorists. In 1972 the General Assembly formed an Ad Hoc Committee on Terrorism that met for seven years. There were prolonged debates on whether it is necessary or possible to reach a definition (Higgins). Moreover, it became clear that terrorism cannot be defined in terms of specified acts, targets, purposes, or actors. For instance, the shooting of a high official by an individual may be motivated by personal jealousy or envy; a plane may be destroyed in a plot to collect insurance; a diplomat may be kidnapped to force payment of a ransom. Beyond the apparent technical impossibility of defining terrorism as a distinct criminal offense, international rivalries make it politically impossible.

Probably the most intractable political issues have been whether a legal definition should or can include (1) violent actions by a state, and (2) violent resistance to internal or foreign oppression. On the question of state terrorism, governments have adamantly rejected any legal definition that might apply to their own acts of violence against external or internal enemies. On the second issue, governments have sharply disagreed on whether the concept of terrorism might extend to violence on behalf of such causes as "national liberation" from colonial rule or imperial domination, "progressive" opposition to capitalism, resistance to "cultural genocide," or impeding "assaults on the environment." The outcome has been a consensus to abandon the quest for a legal definition of terrorism in favor of a piecemeal strategy: the ad hoc prohibition of carefully delimited acts against specified targets such as skyjacking commercial airliners.

Apart from the United Nations, there have been other multinational attempts to establish a legal basis for cooperation against oppositional (including state-sponsored) terrorism. Most such efforts involve operational agreements among states to help one another in such ways as sharing intelligence, apprehending and extraditing suspects, and joint training of special police and military units. The most ambitious such arrangement is the 1992 agreement (the Maastricht "third pillar") institutionalizing cooperation among the twelve members of the European Union in combating "terrorism, drug trafficking, and serious organized crime" (Chalk, p. 3). The treaty commits the members to eliminating internal border controls, while leaving the definition of terrorism to the discretion of the operational executive (the "K4 Committee"). Given the greater freedom of movement and the lack of oversight by either national parliaments or elected EU institutions, there is some concern that Western Europe is becoming more vulnerable to terrorism while at the same time weakening democratic legal controls over antiterrorism policy decisions (Chalk).

Within the United States, the legal status of terrorism is similarly unsettled. Although it is the subject of a growing stream of congressional committee hearings, presidential statements, and reports from the cabinet level down through the complex of intelligence and investigative agencies, terrorism is as much a term of convenience in American legal discourse as it is in international law. A statutory definition is found in the United States Code, Section 2656f(d): "premeditated, politically motivated violence perpetuated against noncombatant targets by subnational groups or clandestine agents, usually intended to influence an audience." However, it is used by the State Department as a guideline for compiling incidence reports, but not by either the Defense Department or the F.B.I., which have their own definitions reflecting the differences in agency priorities and interests (Hoffman, pp. 37–38). Though crimes of violence believed to be politically motivated are given the highest investigative priority, the F.B.I. emphasizes specific criminal conduct in developing evidence on which charges are based. Accused persons are indicted not for terrorism but for "a plethora of traditional and, occasionally, exotic criminal offenses" (Smith, p. 7). Two sets of guidelines have been issued by the Attorney General: domestic terrorism investigations are conducted under explicit public guidelines, "foreign-based" terrorism investigations under classified guidelines allowing greater leeway. Increased federal powers (including controversial restrictions on habeas corpus) to deal with both domestic and foreign terrorism were provided in the Antiterrorism and Effective Death Penalty Act of 1996 (Kappler). It is increasingly clear that although political motivation is typically avoided as an element in the prosecution of terrorists, conviction does result in significantly longer sentences (averaging 167 months) than for comparable conventional offenders (averaging 46 months)–with identification as "terrorist" being the most powerful predictor of sentence severity (Smith and Damphousse).

Because of their openness and commitment to the rule of law, democracies are indeed more likely than dictatorships to suffer terrorist attacks, and tend under attack to increase police discretionary powers. (For the classic review of the issues, see Wilkinson.) It appears highly unlikely that democratic institutions can be protected from oppositional terrorism without sacrificing, at least temporarily, some freedoms. Whether and how far antiterrorism measures can proceed without themselves contributing to the permanent weakening of democracy is the subject of continuing debate.

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