When ‘Terrorists’ Aren’t Terrorists: The Danger of Twisting Words to Suit Our Politics

The Capitol-riot probe offers only the latest instance — civil discourse is dying because we’ve given up seeking objective truth.

T here are some truths we grasp innately. Others are just truths about words — things that are true because of the way we define them. Let nature take its course, and a pack of dogs will sort itself into the dominant and submissive roles. But a private is not the lowest-ranking soldier by nature. He is subordinate by definition — we’ve defined private as the lowest rank.

This distinction is common in the law. In fact, in the criminal law, the distinction touches on the nature of evil itself. We draw a categorical line between malum in se and malum prohibitum, between what is wrong by nature and what is deemed wrong only because we choose to prohibit it.

Some transgressions are so clear, we understand them instantly and instinctively. Others are murkier. Maybe the underlying facts are ambiguous, or the weight of the evidence is not strong; sometimes, the state of the actor’s mind is unknown.

Without a doubt, Caesar was murdered . . . but was George Floyd?

On the latter, the jury said yes. While there are legitimate questions about the fairness of the trial, there was sufficient evidence to support that verdict. That hardly means the matter was cut-and-dried.

To grasp this, consider the double-game played by social-justice warriors. They were not looking for a reasoned conclusion that would get us as close to the truth as humanly possible. They sought a particular outcome, one that would bolster their worldview that America is an indelibly racist country in which the police, the storm troopers of the white power structure, are hunting down young black men. Consequently, they demanded a verdict of “murder,” which would be folded into their political narrative about “murder.”

I use the scare quotes advisedly. Though it’s the same word — murder — any honest person would acknowledge that it means markedly different things in the different contexts.

In their political messaging, when BLM devotees inveigh about police murders of black suspects, the intended connotation is Ides of March-style murder — premeditated, willful, driven by a combination of fear and loathing. But if prosecutors had tried to charge Derek Chauvin with that kind of murder, he’d have been acquitted.

In reality, Chauvin was found guilty of an unintentional homicide. There was not even a claim that he intended to kill Floyd. The statute under which Chauvin was convicted explicitly applies when the defendant acted “without the intent to cause the death of any person.” The medical experts repeatedly explained, moreover, that homicide, as they used that word in their findings, is a term of art meaning that death was caused by another; it is not a finding that death was caused intentionally, let alone with malice aforethought.

Chauvin was convicted because Floyd died in the course of what the jury found was a criminal assault. It reflected a theory that what began as a lawful police detention evolved, through the use of excessive force, into a lawlessly reckless act resulting in Floyd’s death. That is not murder in the common, colloquial sense of the word. It was, however, murder in the technical statutory sense. The statute (state penal law section 609.19) is titled “Murder in the Second Degree.”

The social-justice warriors who demanded murder . . . so that they could peddle a narrative of murder . . . ignore such nuance.

Too much public discourse is skewed this way. When we speak of our deeply divided nation, we sadly marvel that two tribes can look at the same phenomenon and see two very different things. That’s true — really true, not just a truth about words. But the way loaded words are used doesn’t help.

When nearly 3,000 people were annihilated in suicide-hijacking strikes on 9/11, it was obviously a terrorist attack. The Capitol riot, by contrast, was a riot. Yet, at Tuesday’s first hearing of the January 6 Committee, Daniel Hodges of the D.C. Metropolitan Police, one of the officers viciously assaulted by rioters, repeatedly referred to his assailants as terrorists.

As I’ve related, the accounts provided by Hodges and the three other cops who testified at the hearing were spellbinding. It was also well-prepared testimony. Notice, I did not use the pejorative word scripted. As a still-recovering trial lawyer, I make the observation about good preparation with a tinge of professional envy. Testimony needn’t be totally spontaneous to be effective. When the interviewer and the witness both know where the questioning is going, the recitation tends to be crisp and compelling.

Representative Jamie Raskin (D., Md.) asked Officer Hodges about his invocation of the word terrorists in reference to the rioters. Initially, the congressman asked what Hodges thought about the preference of some Republican Trump sympathizers to describe the Capitol protesters as “tourists.” In response, Hodges deadpanned that he could now “see why foreign countries don’t like American tourists” — an ad-lib, I’m sure, that drew laughter from the spectators . . . and a slightly too hearty chuckle from Raskin.

Even better, though, when the terrorist point was pressed, Hodges said, “I came prepared,” and proceeded to whip out of his pocket a document setting forth the statutory definition of domestic terrorism in Section 2331 of the federal penal code.

Needless to say, it is an elastic definition. There is a good reason for that.

When you watch old news clips about, say, 9/11 or Hezbollah’s 1983 bombing of the Marine barracks in Beirut, or Timothy McVeigh’s 1995 demolition of the federal courthouse in Oklahoma City, your impulse is not to rifle through your pockets for that copy of Section 2331 that you happen to carry around just in case you’re asked to weigh in on domestic terrorism. In common parlance, you know a terrorist attack when you see one.

But due process can’t rely on common parlance. When the late Justice Potter Stewart quipped that he wouldn’t attempt to define hard-core pornography but “I know it when I see it,” the line was memorable because it was so out of place in a Supreme Court ruling. A core function of the criminal law is to put people of average intelligence on notice of what is prohibited. “I know it when I see it” puts us on notice of nothing.

When Congress criminalizes conduct, even malum in se conduct, it is obliged to define what it is criminalizing. Since there is an infinite variety of human conduct, lawmakers cannot predict every conceivable factual scenario that might arise. They thus strive to write statutes that convey the forbidden behavior intelligibly enough to be understood, yet broadly enough to encompass behavior that may be on the margins rather than in the heartland of what is being criminalized.

That is Section 2331 in a nutshell. As crafted by Congress, and admirably read aloud by Officer Hodges, domestic terrorism includes any illegal act that could be “dangerous to human life,” and that “appears to be intended . . . to influence the policy of a government by intimidation or coercion.” Besides that, the statute refers to acts that common sense instantly recognizes as terrorism — e.g., “mass destruction” and “assassination.” But lawmakers also sought to ensure that no future defendant who was plausibly seen as a terrorist could exploit a statute that was too narrowly drawn, to evade liability.

With due respect to Hodges (who has every good reason to portray the rioters who beat and nearly crushed him in the harshest light), what this results in is a lack of symmetry that is not uncommon in the law: Every real act of terrorism would be covered by the statutory definition, but that does not mean every conceivable action covered by the statutory definition would be a real act of terrorism.

We would not have to strain our brains very long to imagine illegal acts potentially dangerous to human life that are intended to intimidate government officials into taking some course of action but that are not terrorism. Let’s take an example right out of the riot cases: A man named Eric Munchel is a Trump supporter who neither committed nor intended to commit a violent act, but wandered through the Capitol well after it had been breached with a legally owned stun gun strapped to his thigh. He left after about twelve minutes — and only after admonishing another demonstrator not to vandalize the building.

On the Capitol grounds, federal law makes it illegal to possess a stun gun, which fits the (very broad) statutory definition of a dangerous weapon. And there is no denying that Munchel was among the many who hoped his presence would intimidate Congress into declining to count electoral votes. But we’re not talking Mohamed Atta here.

What Munchel did was condemnable. He will surely be convicted of a crime commensurate with his bad conduct (e.g., carrying a dangerous weapon on restricted federal territory), and he may have to do a brief jail stint. But on the other hand, he’s not looking at a capital prosecution or a life sentence. Why? Because no sane prosecutor would charge a crime of that gravity. Any sensible person knows what he did is not “terrorism.”

It is not true terrorism just because it can be pigeonholed into a statutory definition. It’s a truth about words. We should be mindful of the distinction. Civil discourse is dying largely because we’ve given up seeking objective truth — preferring, in the service of political agendas, to reduce truth into abstractions that are distorted into smears.