(The Washington Post)
Tung Yin is a professor at Lewis & Clark Law School in Portland, Oregon. His academic specialty is national security law and terrorism.

James T. Hodgkinson, the man who shot five people at a Republican baseball practice Wednesday, including a member of Congress, harbored ill will toward President Trump and the GOP. So was Hodgkinson a terrorist?

Legally and morally, we see intent as the best way to distinguish terrorism from mass murder. Federal law defines terrorism as certain violent acts “that appear to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government.”

But because Hodgkinson is dead and did not declare an aim to dethrone the House majority to which his victims belong, we can only speculate about his motives. Like so many other killers in recent years, it’s impossible to know what his specific goals were, because he didn’t tell anyone. We know that these people intended to commit murder, but not why. And if we assume we know — as in the case of Syed Rizwan Farook in San Bernadino or Jared Lee Loughner in Tucson — it’s probably because of our preexisting stereotypes or our partisanship. Mass killings look the most like terrorism when their perpetrators seem the most alien from the Judeo-Christian, white majority. That’s no way to judge a crime. We need a new way to classify these attacks.

Public labeling of mass shooters as terrorists since 9/11 has been anything but consistent. In 2002, John Allen Muhammad and Lee Boyd Malvo killed 10 people in the Washington area using a high-powered rifle concealed in their car; Muhammad received the death penalty because the shooting spree was treated as terrorism under Virginia law. Army psychologist Nidal Hasan killed 13 people and wounded more than 30 others at Fort Hood in Texas in 2009 and was denounced as a terrorist in some news reports as well as in a bipartisan Senate committee report. And in 2015, Farook and Tashfeen Malik killed 14 and injured 22 others in San Bernardino, an act that President Barack Obama condemned as terrorism.

On the other hand, Loughner, who killed six people at a public gathering for then-Rep. Gabrielle Giffords in 2011, was generally described as a mentally illgunman” who had written anti-government posts online, rather than as a terrorist. Some other mass shooters of the same time frame — including Seung Hui Cho, who murdered 32 students and faculty members at Virginia Tech in 2007; Doug Williams of Mississippi, who made racist comments at work and later killed five co-workers, four of whom were African American; and Steven Kazmierczak, who fatally shot five people at Northern Illinois University in 2008 — were called mentally ill, racist or simply murderous, thanks to their murky motives, though their deranged ideas about the world left a similar body count. Even Dylann Roof, who murdered nine African American churchgoers in South Carolina in 2015 and left a white-supremacist treatise, was not widely labeled a terrorist. He was convicted of hate crimes and murder , not terrorism.

As far as the prosecutions go, perhaps it doesn’t matter whether reporters and ordinary Americans regard a perpetrator as a terrorist or as a mass murderer. The t-word opens the door to certain charges that would not otherwise be available — such as federal terrorism charges under Title 18, Chapter 113 of the U.S. Code — but one need not be convicted as a terrorist to face the death penalty or life imprisonment, the harshest punishments. Roof did not face terrorism charges but will still die by lethal injection.

Sorting all of this out was much easier when terrorists reliably took credit for their actions and issued rationales. The primary goal of most terrorists in the 1970s, for instance, was to gain publicity for their causes, with violence (actual or threatened) as a means to an end, rather than the end itself. Terrorism expert Bruce Hoffman has noted that left-wing European groups’ “use of violence historically has been heavily constrained,” and even their right-wing counterparts used violence “based not on some pathological obsession to kill or beat up as many people as possible but rather on a deliberate policy of intimidating the general public into acceding to specific demands or pressures.” In the United States, the Weathermen embarked on a campaign of planting bombs in public buildings to call attention to their opposition to the Vietnam War and their support of the Black Panthers. But after a bombmaking accident killed three of the group’s members, they began to provide advance warning so that targeted buildings could be evacuated.

Even as terrorism became more lethal in the 1980s, one could generally discern the goals of the attackers. When a suicide truck bomber plowed into the U.S. Marine barracks in Beirut in 1983, killing 241 Marines, sailors and soldiers, the attack was aimed at driving American forces out of Lebanon. And it worked: President Ronald Reagan withdrew the remaining U.S. troops within a few months.

In the late 1980s and early 1990s, however, terrorism morphed into something more savage and, sometimes, more ambiguous. In 1993, Ramzi Yousef, a nephew of future 9/11 mastermind Khalid Sheikh Mohammed, organized a plot to blow up a truck bomb under the World Trade Center. It killed six and injured more than 1,000 but fell far short of what he’d wanted: for one tower to crash into the other, killing as many as 250,000 people. Yousef claimed credit afterward, demanding that the United States cease supporting Israel and interfering in the Middle East.

Two years later, Army veteran Timothy McVeigh and his co-conspirator, Terry Nichols, set off a truck bomb next to the Murrah Federal Building in Oklahoma City, killing 168 people, including 19 children. Although McVeigh could be accurately characterized as an anti-government extremist, he issued no warnings or demands. (Perhaps he would have made some public statement later, but a highway patrol officer detained him on a routine traffic stop, and he was identified as the perpetrator during his time in custody.)

Since then, the direction of terrorism has split into two fairly distinct arcs. One is mega-terrorism aimed at killing large numbers of victims in spectacular ways, such as the 9/11 attacks; airliner-targeting plots, including unsuccessful ones by “shoe bomber” Richard Reid and “underwear bomber” Umar Farouk Abdulmutallab; and the liquid-explosives plot foiled by the British in 2006. (These would-be bombers did not announce their intent before they were stopped.) The other is small-scale ground attacks, typically carried out with firearms and sometimes small explosives, often by lone wolves. But as the devastating attacks in Mumbai in 2008 (death toll: 164) and Paris in 2015 (death toll: 130) demonstrate, even firearms-based plots can rack up high casualty counts. What these arcs share is the lack of any apparent purpose beyond mass murder and possibly some vague notions about attacking the West. Arguably, the post-9/11 version of terrorism doesn’t even fit the statutory definition anymore. They may scare the public, even terrorize it in the colloquial meaning, but unspoken demands and unclaimed credit do not convey any purpose behind the violence.

Public declarations are now rare, and without them there is no agreed-upon norm for categorizing these attacks. The recent mass shooters who have generally been called terrorists — Fort Hood’s Hasan, San Bernardino’s Farook and Malik, and Beltway sniper Muhammad — were all identified as Muslims. In a study I conducted in 2012, more than 15 percent of the news about Hasan included the term “terrorist” or “terrorism,” while just over 2 percent of the news about Loughner, a white man, included one of those terms. My study found a disparity based on race and religion that was not limited to mass shooters; in the same study, I examined news coverage of two bombings — one carried out, one attempted — about 30 miles apart, with similar conclusions.

This discrepancy poses two dangers. First, the assumption that mass shootings are terrorism when perpetrated by Muslims but not by others may lead law enforcement and the public to overlook threats posed by non-Muslims. For instance, civil rights lawyer and former FBI agent Mike German, who infiltrated white supremacist groups, has argued that the domestic threat posed by right-wing extremist groups is as great as, if not greater than, that posed by Arab or Muslim terrorists, and yet has been largely ignored by the FBI. A report by the Government Accountability Office tallied 106 killings perpetrated by right-wing extremists in the United States from Sept. 12, 2001, to the end of 2016, more or less equal to the 119 by Muslim extremists in that time. While the exact number in each category may change slightly depending on how we classify individual attacks, the point is that there’s close to parity in the danger posed by each group.

Second, it’s possible that law enforcement and other decision-makers will acknowledge and respond to this singular focus on Muslims by overcompensating in the opposite manner so as to appear nondiscriminatory. The Fort Hood shooter, for example, had repeatedly drawn complaints from fellow soldiers for appearing to justify terrorist attacks against Americans in the Middle East. The FBI was even aware that Hasan had been in email contact with al-Qaeda provocateur Anwar al-Awlaki. It is one thing to avoid racial or religious stereotyping but another to ignore red flags for fear of being perceived as bigoted, as appears to be the case with Hasan. Yet this tension is inherent in stereotype-based law enforcement.

One first step toward resolving the question of “what is terrorism?” — at least in the colloquial sense — is to stop focusing so much on the perpetrator’s perceived intent and to look more at the effects of the violent act. Today, attackers such as Hodgkinson, Hasan, Rizwan, Malik, Loughner and Roof have one thing clearly in common: Even if it’s not clear why, they want to kill as many people as possible. That should be enough to call them all terrorists.

Twitter: @TungYin

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