Is Nidal Malik Hasan a “Terrorist”?

Figuring out what to call the accused Fort Hood shooter.

Nidal Malik Hasan

A Rasmussen poll released on Wednesday found that 60 percent of respondents want the Fort Hood shooting “investigated by military authorities as a terrorist act,” while 27 percent “want the incident investigated by civilian authorities as a criminal act.” Former U.S. Attorney General Michael Mukasey and Sen. Joe Lieberman are on the 60 percent side—they’ve both referred to the massacre as “terrorism”; but President Obama has so far avoided using the term. Was the Fort Hood shooting spree technically a terrorist act, or a criminal one?

It’s semantic. There’s no precise, internationally accepted definition of terrorism or who qualifies as a terrorist. One 1988 study identified 109 definitions for terrorism, and it’s a safe bet there are now many more. The U.S. Code contains several classifications of varying scope. Perhaps the most wide-ranging is the one the government uses to exclude possible immigrants, wherein a terrorist is anyone who uses an “explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger … the safety or one or more individuals or to cause substantial damage to property.” That is, anyone who’s committed an armed crime for a reason other than money. In a criminal context, the definitions are narrower. To garner a domestic-terrorism charge, the assailant must intend “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 by mass destruction, assassination, or kidnapping.” As for international terrorism, the actions must furthermore either occur outside the United States or “transcend national boundaries in terms of the means by which they are accomplished.”

The United Nations isn’t much help here. A 1999 resolution “strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable” but doesn’t really characterize these “acts.” In response to the events of Sept. 11, 2001, the United Nations General Assembly took a stab at a comprehensive definition, fingering anyone who causes “death or serious bodily injury to any person; or serious damage to public or private property … when the purpose of the conduct … is to intimidate a population, or to compel a government or an international organization to do or abstain from doing an act.” But this characterization has not been officially adopted.

The “coercion” standard as set forth in the U.S. Code and suggested by the United Nations don’t make it clear whether the shooting spree qualifies as terrorism. Alleged gunman Maj. Nidal Malik Hasan was reportedly opposed to the wars in Iraq and Afghanistan and called the war on terror a “war on Islam.” Of course, these details don’t necessarily indicate that Hasan intended to influence government policy. The U.S. Code provision against the “intimidation” of a civilian population might cover the shooting spree since there were civilians at Fort Hood. But it’s possible he just snapped, in which case it would be difficult to demonstrate that he “intended” anything at all. As for charging Hasan with international terrorism, many news sources have reported that Hasan was in contact with Anwar al-Awlaki, an American-born Muslim cleric now living in Yemen who is said to support al-Qaida. If al-Awlaki somehow encouraged Hasan, or helped him plan the shooting, prosecutors could argue that the incident “transcends national boundaries.”

The labeling of the shooting spree (as terrorism or tragedy) will affect the prosecution of Hasan. If prosecutors decide to charge him with committing an act of terrorism, he’ll likely be tried in federal court. Otherwise, the military will have jurisdiction over the case, and he’ll face a court-martial. Either way, Hasan could theoretically face the death penalty, but the military justice system has historically discouraged executions.

Naturally there are also political ramifications to prosecuting Hasan as a terrorist. Government agencies aren’t really expected to anticipate and prevent “tragedies,” but they are expected to stop terrorism. A terrorism charge would focus more attention on why U.S. intelligence agencies, which had intercepted communicated between Hasan and al-Awlaki, did not conduct a full investigation. Republicans could also characterize the incident as a terrorist attack happening under Obama’s watch.

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Explainer thanks Liza Gotein of the Brennan Center for Justice.

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