Yes, Boston Was an Act of Terrorism (At Least Under One Definition)

by Kevin Jon Heller

In the wake of Obama’s memorable statement, a number of bloggers have questioned whether the Boston bombings deserve to be labeled “terrorism.” Most of those bloggers — such as the excellent Ali Abuminah here — emphasize that many US definitions of terrorism require the violent act in question to be politically or ideologically motivated, which is still an open question with regard to the Tsarnaev brothers’ actions.

I’m sympathetic to this position — and I wholeheartedly agree with Abuminah’s observation that “acts of violence, especially mass shootings, carried out typically by white males, are immediately labeled as the acts of ‘disturbed individuals’ while the acts of a person identified as ‘Muslim’ are to be labeled ‘terrorism’ regardless of the facts.” But it is important to acknowledge that not all definitions of terrorism require a political or ideological motivation — including the one that is most relevant to the Boston bombings, the International Convention for the Suppression of Terrorist Bombings (“Terrorist Bombing Convention”), which is codified in the US Code at 18 USC 2332f. Here is the international definition:

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

And here is the US definition:

(a) Offenses –

(1) In general – Whoever unlawfully delivers, places, discharges, or detonates an explosive or other lethal device in, into, or against a place of public use, a state or government facility, a public transportation system, or an infrastructure facility –

(A) with the intent to cause death or serious bodily injury,
(B) with the intent to cause extensive destruction of such a place, facility, or system, where such destruction results in or is likely to result in major economic loss,

shall be punished as prescribed in subsection (c).

The Boston bombings clearly qualify as terrorism under either definition. There is also no question that the Terrorist Bombing Convention applies, because one of the victims of the bombings was a Chinese national. (The Convention excludes acts that take place in one state and involve only nationals of that state.) The US version is a bit more complicated, because 18 USC 2332f requires a bombing to have a substantial effect on foreign or interstate commerce if jurisdiction is predicated — as it would be here — on the fact that the bombing killing a foreign national. But I agree with Bobby Chesney that the bombings almost certainly do have the requisite effect.

Again, I think it’s unfortunate that the label “terrorism” is almost always reserved for violent acts committed by Muslims, even though domestic groups (from right-to-lifers to neo-Nazis) pose a much greater threat to Americans living in the US. But that doesn’t change the fact that setting off bombs in the middle of a marathon does indeed qualify as terrorism.

NOTE: I should add that, as a normative matter, we should restrict the term “terrorism” to violent acts that are politically or ideologically motivated. I think it is precisely the presence of such a motivation that distinguishes terrorism from “ordinary” criminality. Alas, the international community does not seem to agree, at least for certain kinds of weapons.

4 Responses

  1. “right-to-lifers to neo-Nazis [] pose a much greater threat to Americans living in the US” than Muslims.
    Yep, that’s why such domestic groups have killed more Americans in terrorist actions domestically over the last 10, 20, 30 years than Muslims have.
    Oh wait, nevermind.

  2. The treaty does not define “terrorism” as such, but sets out its own crime.  The U.S. definition in 18 U.S.C. sec. 2331 is overly broad.  Dictionaries can do a pretty good job, but countries cannot — b/c an objective definition of “terrorism” would require at least two elements: (1) an intent to cause terror (or intense fear and anxiety), and (2) a terror outcome [otherwise it would be attempted terrorism].  See Paust, Bassiouni, et al., International Criminal Law chpt. 12 (4 ed. 2013);
    The charges today did not include “terrorism”

  3. Your post makes me wonder what impact the Boston bombing, and the decision to charge Tsarnaev federally, will have on the Supreme Court’s consideration in the Fall Term of Bond v. US.  The petitioner in Bond wants a ruling, essentially, that federalism concerns require the federal government to leave prosecutions for “ordinary poisoning” to the states, even if they fall within the Chemical Weapons Convention and the CWC Implementation Act.  I’d have to think that the Boston bombing will hover over the Court and may come to the fore in the merits briefs or at oral argument, and that the Court will worry that a ruling for the petitioner might hamstring the government’s ability to bring federal terrorism cases for “ordinary bombings.”  This may not be a technical legal argument, because the jurisdictional reach of the CWC Implementation Act (18 USC 229) appears on quick read to be significantly broader than that of Section 2332f, but I wouldn’t be surprised if the Boston bombing emerges as a “brooding omnipresence” in Bond

  4. Perry: hopefully it will b/c it should.  There is no 10th Amend. interest of the states re: the treaty power — expressly delegated to the federal govt. and expressly denied to the states.  If Missouri v. Holland is overruled (along with several other related cases in U.S. history), the ability of the United States to prosecute treaty-based crimes will suffer (e.g., hijacking, air sabotage, killing of internationally protected persons, genocide, torture, IMO boatjacking, airport security crimes, terrorist financing, terrorist bombings, war crimes, drug trafficking, trafficing in human beings, etc., etc.)

    By the way, isn’t Senator Graham a mean-spirited legally ignorant person — who has no clue what an “enemy combatant” means under the laws of war!
    An “enemy combatant” is a “combatant” with “combatant immunity” for lawful acts of war and a prisoner of war!

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