Mimesis Law
21 July 2019

Robert Dear: Terrorist or “Just” A Murderer?

Dec. 3, 2015 (Mimesis Law) — After the shooting in Colorado Springs, various talking heads have been falling all over themselves to decide whether or not this “counts” as domestic terrorism. It’s a fair question. At the gut level, of course it is. Dear shot up a Planned Parenthood clinic, and reportedly muttered “No more baby parts” as he was arrested, which would make the shooting a case of murder in pursuit of a political objective. In the ordinary meaning of the word, that’s terrorism.

Legally, though, the question becomes more complicated. According to federal law,

the term “domestic terrorism” means activities that—

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping;

and

(C) occur primarily within the territorial jurisdiction of the United States.

Easy enough, right? However, while the statute defines “domestic terrorism,” it is not specifically against the law to commit acts of domestic terrorism. Instead, defendants are charged under federal statutes like the hate crime law (Dylan Roof in the Charleston massacre), using a weapon of mass destruction (Tim McVeigh in the Oklahoma City bombing), or just plain murder (Nidal Hassan in the Fort Hood massacre). Whatever federal charges might be out there, “domestic terrorism” is not one of them. (There is a sentencing enhancement for crimes involving terrorism, but this is pretty much a moot point in capital cases.)

At a practical level, it doesn’t matter all that much. Robert Dear has been charged by the State of Colorado with first-degree murder, and if convicted could face the death penalty. For that matter, the minimum penalty for first-degree murder in Colorado is life in prison, so (if convicted) one way or the other Dear will only be leaving prison in a box. So does it make a difference if we accuse him of being a terrorist or a murderer?

Some people don’t think so:

[T]hough National Abortion Federation president Vicki Saporta agrees with NARAL that Dear and his ilk are terrorists, she’s not so sure that pushing for an official terrorist designation is the best way to get the public to see them that way. “We have gotten attention from the civil rights division. The task force is there. They take the threats we’ve given them seriously; they conduct investigations,” Saporta says. “That said, I think more needs to be done. But I don’t think that we necessarily want to go to another division where they’re not familiar with our issues and cases and where we wouldn’t get as high a priority in terms of investigations and would be competing for scarce resources with all the other kinds of domestic terrorism threats that might be prioritized.”

Nora Caplan-Bricker, the author of the Slate article quoting Saporta, takes the opposite position:

Pushing for a terrorism or hate-crime charge may be risky, but . . .  it’s also worthwhile. It’s one of the only tools available to associate our cultural concept of terrorism with the face of a white, right-wing extremist—the profile of the kind of person who actually inflicts the most violence and fear in the country today.

This kind of thinking is a problem. To Caplan-Bricker, the terrorist v. murderer question isn’t a legal question. It’s a question of using the law (more specifically, the Justice Department) to change our “cultural concept of terrorism.” That’s not what the Justice Department is for. This is the mirror image of the kind of thinking that leads us to give up our civil liberties, because terrorism.

Essentially, “terrorist” is being used as an incantation, to suggest that Dear’s crime is somehow made worse because of the semantic label we attach to it. It is an implicit endorsement of the concept that “terrorism” is somehow a special evil, beyond all others, and that the law should be twisted so that we can protect ourselves from it.

Murder happens. Terrorism happens. Of course, we should try to prevent it as best we can. But we shouldn’t let the word eclipse the thing. As a wise man once said, “Fear of a name always increases fear of the thing itself.” Dear may be a murderer. Dear may be a terrorist. For that matter, he may be crazy. At this point, those desperately trying to paint him with whatever brush best suits their views have no clue what was going through his head at the time he committed his crimes.

But what we call him isn’t important. What’s important is that he be prosecuted according to the due process of law. And, if he’s convicted of first degree-murder, that we lock him up and throw away the key.

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