“This was an act of terrorism, designed to kill innocent people.”
With these words on Sunday night, December 6, 2015, President Barack Obama said what has not been said since the attacks on September 11, 2001. A terrorist attack occurred on American soil.
The mainstream media has focused on the horribly tragic shootings in San Bernardino and on the history of the two individuals who perpetrated it. Since the President’s address, I cannot find anyone who has focused on the far-reaching implications of calling it a “terrorist attack.” It is more than a journalistic description that is at the heart of this inquiry.
As The Atlantic’s David Graham pointed out in the first few days after the shooting – before the President’s speech – the FBI was very reluctant to call the San Bernardino shootings “acts of terrorism.” The reason they gave, while sounding legalistic and focused on understanding the motivation of the attackers, was:
“When a reporter asked David Bowdich, who heads the Los Angeles field office of the FBI, whether the attack was terrorism, he was careful not to make a ruling.
“‘It would be irresponsible and premature for me to call this terrorism,’ Bowdich said. ‘The FBI defines terrorism very specifically, and that is the big question for us, what is the motivation for this.’”
The difficulty is knowing what definition to use, since there is no one universally-recognized definition of the word “terrorism.” There are multiple definitions that apply in various scenarios, domestic and international. Each one has business, legal and political implications, depending on how and when it is applied.
Martha Crenshaw, a pioneer of terrorism studies and a lead investigator with the National Consortium for the Study of Terrorism and Responses to Terrorism (START), began her work in the early 1970s – long before the field became a serious concern of policymakers and the public. In an interview with The Atlantic’s Kathy Gilsinan published in September, Crenshaw noted the complicated impact of the term’s usage:
Gilsinan: Why do you think people are still arguing about the definition of terrorism?
Crenshaw: For one thing, it’s not an easy concept to define. It’s controversial, it’s contested, and people use it in a normative sense that, your enemies do terrorism and your friends are freedom fighters, et cetera. All these awful clichés. But there is that kind of bias, people are unwilling to just say, look, this is a form of violence, and lots of different types of people use it for lots of different types of purposes. It’s not a very nice form of violence, because it often targets civilians on purpose, and I think we’re always shocked when violence deliberately targets civilians. And then it’s just kind of hard empirically to get at what we mean by terrorism—violence that’s symbolic, violence that’s meant to communicate, to send a message—how, just objectively, do you distinguish that from any other sort of violence?
That is why, when the President of the United States says that an act is an “act of terrorism,” it is a big deal.
A Presidential speech is not something written on the back of a napkin with little forethought, especially one that is delivered on a special broadcast to the nation via major television networks. Presidential speeches are thoroughly vetted by White House lawyers, cabinet agencies, and in some cases, Members of Congress are provided an advance briefing. Adjectives, adverbs and prepositions are analyzed for exact meaning and foreign language translation issues.
While I have no way of knowing exactly what reviews occurred before the President’s December 6 address, I have to believe that DHS Secretary Jeh Johnson and Treasury Secretary Jacob Lew were given an opportunity to provide comments on the speech draft. If so, then they know the choice of words was very deliberate.
So why is it a big deal? Why is this so important?
For one, most insurance policies have an exclusion that says the insurance company will not pay for claims caused by “acts of terrorism.” Even for those companies that have coverage under the Terrorism Risk Insurance Act (TRIA), there must be a declaration by the Secretary of the Treasury that an act of terrorism has occurred. As the Boston Globe pointed out last year, the handful of companies who had purchased TRIA coverage could not get their claims paid after the Boston Marathon bombings because it was not declared to be an act of terrorism.
To incentivize the creation and deployment of anti-terrorism technologies and provide liability protection, Congress enacted the Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act) as part of the overall Homeland Security Act of 2002. From a DHS standpoint, the President’s comments could become important if a tort lawsuit is filed against any entity that has obtained protection under the SAFETY Act.
If a company has SAFETY Act protection, then if they are sued following an “act of terrorism” – as determined by the Secretary of Homeland Security – their liability to tort claims is limited. The precise amount of that limitation depends on the type of protection the company obtains from DHS when their application is approved.
My firm, Catalyst Partners, helps companies apply for SAFETY Act protections. We know that companies that go through the SAFETY Act application process provide greater security and safety than before they started the process – they have told us that over and over. But since there has not been a declared act of terrorism since the 9/11 attacks, many companies that might otherwise be eligible for coverage have been reluctant to apply because the bar to a declaration of terrorism seemed very high – until now.
That is why the President’s speech is a big deal. When the President calls something an “act of terrorism,” his cabinet secretaries have little choice but to agree and that makes their job in the event of TRIA or SAFETY Act decisions relatively easy. Their discretion has already been “exercised” (or perhaps pre-empted) by their boss – the President.
Many pundits said the President did not say anything “new” – but I heard something different. What I heard was the President of the United States tell the world that we will deal with terrorism no matter where it occurs and how it is perpetrated. He reaffirmed that our country is committed to defeat the threats from new methods of terrorism. He said:
“Let’s not forget that freedom is more powerful than fear; that we have always met challenges — whether war or depression, natural disasters or terrorist attacks — by coming together around our common ideals as one nation, as one people. So long as we stay true to that tradition, I have no doubt America will prevail.”
This is one issue where the President’s many critics seem to agree with him – and that too is a big deal.