The Executive’s Humpty-Dumpty Terrorism Watchlisting Policy: Lessons from People v. Morales

humpty-dumpty

The Intercept’s publication of the criteria for the terrorism watchlists throws some light at least on what the government tells itself a terrorist is. This is a matter of keen interest to many of us, since a close reading of the following text tells you a lot about the values and priorities of our new-minted surveillance state overlords.

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Not to go all mise en abyme about it, but this definition is, well, abysmal. Let’s take it a step at a time.

The definition starts with a disclaimer:

None of the federal law definitions of “terrorism” or “terrorist activities” were directly applicable to this consolidated approach to watchlisting.

Right at the start, the definition situates itself as an extra-legal one, asserting that the US government can somehow legally take actions on the basis of this policy – to watchlist someone, to search their stuff, to toss their homes, to interview their friends – even if they are not suspected of anything that would actually meet the definition of terrorism under the relevant federal statutes. A number of Fourth Amendment lawyers – and judges – would be very interested indeed in that novel assertion.

Terrorism, apparently, means “Violent acts that appear intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of government.” Violent acts are further defined as including “mass destruction, assassination, kidnapping or hostage-taking.” So far, so good, you might say. Very few people enthusiastically support violence (by non-state actors). And if this was all that terrorism was – a species of politically-based killing or kidnapping – then most people would be behind having people convicted of such crimes not being allowed on a plane, and the databases themselves would be very small. We’ve talked before, though, about the Bureaucratic Anti-Terrorism Imperative, so let’s look at how they extend out this definition beyond that narrow base.

First, it’s actually not just “violent acts”. Terrorism, apparently, also includes “acts dangerous to human life”, “acts dangerous to property”, or “acts dangerous to infrastructure” that “may be” “violations of US law” or “may have been violations of US law if those acts were committed in the United States”, so long as they are “intended to intimidate or coerce a civilian population.”

Whew. OK. So who, really, gets to judge the difference between activities intended to shape the opinion of a civilian population and activities intended to intimidate a civilian population? What is the meaning of “a civilian population” anyway, and how big does one have to be? Many people, for example, would argue that Fox News is a twenty-four-hour factory of stories “intended to intimidate a civilian population” that are “dangerous to human life” (for example, by discouraging people from signing up for Obamacare); but maybe that’s a step too far?

The best guidance toward defining, in law, what a “civilian population” is and how you terrorize it, is probably the case of People v. Edgar Morales. Panicky post-9/11 legislation allowed Bronx prosecutors to charge a gang member with second-degree murder, and to inflate the jail time based on the notion that his alleged murder of a little girl also intimidated a civilian population (namely, the Mexican-American population of the Bronx). The jurors agreed that this was indeed terrorism, and voted him guilty of it; then, in December 2012, after five years, Morales’s conviction was overturned and a new trial was ordered because the prosecutors had tainted the trial by adding the link to terrorism. No news outlet has reported on his retrial, so we must assume it hasn’t yet happened, and Morales remains free.

What this implies is that in fact federal law does limit the language of “intimidating a civilian population.” The Court of Appeals of the State of New York came to its decision assuming, without stating, that an intent to terrorize the Mexican-American population of the Bronx as a whole would meet the definition of terrorism. So, we learn that if this precedent holds for other jurisdictions, it is enough to have an intent to target an ethnically (or religiously?) definable subset of the population of the area under the jurisdiction of the prosecuting party. An interesting question here would be whether it would be possible to define swastika graffiti on a synagogue as terrorism under this definition; I would tend to think Yes. It’s also clear that, while Morales’ conviction has been overturned, the fact that he was accused and convicted of terrorism-related crimes would indisputably qualify him for addition to the watchlist under this policy.

Not only does this policy repudiate the very notion of being limited by such irrelevancies as “legal innocence”, but it also declares that someone can be watchlisted even if they are “family members” or “associates” of people like Morales, whether they are themselves TERRORISTS or not.

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Watchlisting is constrained only by the discretion of agents in assessing what is and is not sufficiently TERRORISTIC to warrant classification as TERRORISM. It would be hard to find a better example of an arbitrary and capricious government policy than this. We’re not just talking about acts that “are” against US law, but also include things that “may be” against the law. Couple that with an assertion of universal jurisdiction – even if a New Zealander is not a terrorist under New Zealand law, she is considered to be subject to the definition in this US policy if she attempts to visit the United States – and it’s time for the lawyers drafting it to break out the Veuve Clicquot … But wait! We’re still not done!

[TERRORISM] includes activities that facilitate or support TERRORISM and/or TERRORIST ACTIVITIES …“; examples include “Providing a safe house, transportation, communications, funds, transfer of funds or any material benefit, false documentation or identification, weapons (including chemical, biological or radiological weapons), explosives, or training for acts of TERRORISM.

So, Morales’s driver is in. Also his landlord, his phone company, any bank that processes his transactions, or in fact anyone who helps him in any way, mens rea notwithstanding. No “concrete facts” that they are in fact associated with terrorism are required; only that threadbare standby of the surveillance state, “reasonable suspicion”, defined more or less as “a really good hunch that I nevertheless am under no obligation to explain.”

Truly, brothers, I say unto you, only by making the families and associates of accused terrorists homeless, jobless, and unable to fly, based on nothing much at all, can you make America safe. It’s in the Bible. Look it up.

I’m not saying that this policy requires such people to be put on the watchlist, but it places a vast array of people in an extra-legal gray area, and gives almost unreviewable discretion to prosecutors to turn people into TERRORISTS who patently are not; and that’s a pretty precise reflection of actual government policy on terrorism, as of the year of our Lord Two Thousand and Fourteen, in these United States of America.

One Thought on “The Executive’s Humpty-Dumpty Terrorism Watchlisting Policy: Lessons from People v. Morales

  1. Stephen on July 26, 2014 at 7:07 am said:

    You failed to mention that if you are involved in a protest you are by definition a terrorist.

    Law enforcers generally view large protests as “acts dangerous to infrastructure” – which is presumably why they pull out the pepper spray at the first sign of peaceful protest and do what they can (tactics like kettling) to rile protestors and get them actively resisting police thuggery. It’s much easier to use a baton against a ‘terrorist’ than an unhappy citizen.

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