- The Washington Times - Sunday, July 14, 2002

The latest statements from the Federal Bureau of Investigation insist that although Egyptian immigrant Hesham Mohamed Ali Hadayet went to the El-Al Airline ticket counter at Los Angeles International Airport intending to kill people, "his motive remains unclear." The response thus far in the United States and abroad to these July Fourth killings is reminiscent of the tale of the five blind men and the elephant, each man groping a different part of the animal and insisting on a different beast.
Richard Garcia, the FBI's agent-in-charge in Los Angeles offered three distinct alternatives. The first was that the murders constituted hate crimes. The second that they were terrorist attacks. The third that they were nothing more than common crimes. The White House position was equally noncommitted: "There is no evidence, no indication that this is terrorist."
But Israeli's consul general in Los Angeles, Yuval Rotem, cautioned that even if Hadayet's rampage was carried out alone and unaided, it was nevertheless a terrorist attack.
Much of the press tended generally to conclude that the differences were primarily semantic, "really over what constitutes terrorism," but this may not be the case. The differences are likely to be primarily over turf and relevant jurisdictional rights and responsibilities of the nation's myriad law enforcement agencies, rather than over linguistic refinements.
The FBI held forth that "so far we have no indication of any type of prejudice against any particular organization or nationality." Accordingly, the suspect might have merely set out to kill some people at the airport without any discernable motive. In the absence of such prejudice, the alleged shootings by Hadayet would not fall within the definition of "hate crimes." Neither would they readily fall within terrorism, a classification that usually requires acts of violence against civilians in order to terrorize a group or to obtain concessions from their or some other government.
What remains under the FBI's original formulation is the possibility of classifying the Hayadet incident as a "common," or what criminologists might describe as a "street," crime.
But what might appear at first glance a semantic debate carries within it the seeds for critical jurisdictional disputes. To the three definitional alternatives offered thus far, one needs to add two other possibilities the massacre being either the outcome of lawful warfare or of "unlawful belligerency."
Given that President Bush declared the United States to be at war against terrorism in the post-September 11 era, the consequent assault or killing of a member of the American armed forces, here or abroad, by an enemy soldier would constitute an act of lawful warfare. In such cases, a captured enemy belligerent would not be subject to criminal prosecution or punishment but rather to detention as a prisoner of war until the hostilities had ceased. Unlawful belligerency, on the other hand, describes an assault or killing of American civilians, or even army personnel, when the assailant is not an enemy soldier, nor in uniform nor displaying appropriate insignia.
Unlawful belligerency is considered both a national and international crime, subjecting the actor to prosecution and summary punishment by a military tribunal.
Hesham Mohamed Ali Hadayet's death in the hands of the security guards at the Los Angeles International Airport obviates the need to determine the ultimate category of his crime and therefore of the appropriate agency of the United States government that would have been responsible for his apprehension, prosecution, and trial. A very touchy jurisdictional dispute might, nevertheless, still be in the offing regarding which agency local, state or federal (civil or military) should have been or is responsible for preventing the massacre and for the criminal investigation in the wake of the shooting. Turf disputes and recriminations are already in the offing, and are likely to escalate, much as in the World Trade Center case.
For years, differing agencies of the U.S. Government the FBI, CIA, the Federal Emergency Management Agency and even the State Department have been unable to agree on a common definition of terrorism.
Yet each has been granted or claimed authority overs its own limited turf. Consequently, different and contradictory definitions and policies have been developed on both the Federal and state levels. The disagreement has resulted in great disparities and even some bizarre outcomes, such as one state law that makes physical threats against a former lover an act of terrorism.
But a common definition of terrorism should not be to difficult to reach. National or domestic terrorism is an act or threat of violence by a nonstate actor against innocent civilians in an effort to demoralize the potential victims and, hopefully, to secure growing civilian pressure for their government's concessions to those perpetrating the violence. International terrorism, on the other hand, may generally be differentiated from its domestic offense in that the terroristic act takes place in a country or against civilians foreign to the conflict. It is international terrorism that has proven particularly offensive to the world community because it consists of the exportation of local grievances to third and noninvolved foreign nations and their citizens.
If Hashem Hadayet's grievance was primarily against Israel, or its citizens, his remedy might have been sought through some action, lawful or unlawful, against them in their home territory. Compelling the United States, or any other country, to tolerate within their borders acts of violence in response to grievances against other countries constitutes an unreasonable burden and an escalated threat to world order. Those engaged in such indiscriminate violence become international terrorists and are subject not only to domestic but also to international criminal law. Whether they act as members of a group, such as Osama bin Laden's al Qaeda, or as self-designated agents of violence does not matter.
The Hadayet event testifies to the need to reach precise definitions of and differentiations among hate crimes, terrorism, lawful warfare and unlawful belligerency. This tragic event points to the urgent need to resolve the ongoing and escalating conflict between the different legal formulations and thereby among different U.S. government agencies regarding who shall be primarily responsible for the growing incidence of politically, ethnically and religiously motivated offenses, taking place in this country. Effective coordination between the different agencies or, better yet, their consolidation in a Homeland Security Agency is urgently needed. As the world's last superpower, the United States of America cannot permit itself the luxury of semantic debates and turf wars.

Nicholas Kittrie is distinguished university professor in law at American University and former counsel to the Senate Judiciary Committee. He is author of "Rebels With A Cause: The Minds and Morality of Political Offenders" (Westview, 2000).


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