One of my classfellows, who happened to be in one of the prestigious universities of the US for his Master’s degree programme, told us the story of a class discussion on whether the Taliban upsurge was a people’s movement or not. His teacher, who had deliberated upon the definition of ‘a people’s movement’, like that of the Chinese revolution leader Mao Zedong — of which violence was a major and effective part — got disturbed and speechless when his attention was drawn that his definition seemed to have been qualifying the Taliban’s as a people’s movement. Similar is the case with the question as to how to define the term ‘terrorism’. In his report in The Guardian, Glenn Greenwald dilates upon “the meaninglessness and menace of the term ‘terrorism’.” It would be appropriate to reproduce the excerpts of his report here. He says that valuable revelations are often found in unlikely places. Such is the case with a fascinating ruling released last week by the New York Court of Appeals, that state’s highest court, in the criminal case of People v Edgar Morales. The facts of the case are quite simple, but the implications of the ruling are profound. The defendant, Morales, was a member of a Bronx street gang known as the St James Boys (SJB). In August 2002, Morales and fellow gang members went to a party, saw someone from a rival gang whom they believed was responsible for a friend’s death, and told him to leave. When he refused, they planned to attack him after the party. Later, Morales shot at the rival gang member and his cohorts, severely wounding one of them but also accidentally shooting and killing a 10-year-old girl who was a bystander. Prosecutors were not content to charge Morales with murder and related crimes. Instead, they charged him with crimes of terrorism under an anti-terrorism law that was enacted in New York in the aftermath of 9/11. Under the law, a crime is committed whenever one acts with the ‘intent to intimidate or coerce a civilian population’, but the law contains no definition of that term. The jury found him guilty on all counts, including the terrorism charges, and the Court of Appeals set out to determine whether the terrorism charges were validly applied to this violence. What is initially so striking about the decision is the court’s obvious inability to state what terrorism even means. The court ultimately concludes, unanimously, that terrorism charges are inappropriate for Morales because acts of gang violence “do not match our collective understanding of what constitutes a terrorist act”, whatever this ‘collective understanding’ might be. To illustrate our supposed collective understanding, the court lists the seven examples of terrorism referenced by the findings that led to the law. Six of these involve acts of violence committed by Arabs and/or Muslims against westerners, including the 1994 Brooklyn Bridge shooting by a Lebanese cab driver of a van carrying Hasidic Jewish students (the sole exception being the 1995 Oklahoma City bombing). That — violence committed by Arabs or Muslims against the west — is the real operational definition of terrorism, and the court thus concludes: “The offences committed by defendant and his associates after the christening party obviously are not comparable to these instances of terroristic acts.” ‘Obviously’. But here’s the most amazing and significant part of the court’s decision. Once it concluded that the terrorism charges against Morales were inapplicable, it could have simply dismissed those counts and upheld the conviction on all the other standard counts of murder. That’s what the intermediate appellate court did after it too found the terrorism statute inapplicable to Morales: it threw out the terrorism charges, reduced his sentence, and let stand the conviction on the murder counts. But the Court of Appeals went much further. It reversed the conviction on all of the counts — including the non-terrorism counts — and ordered a new trial. That was necessary, said the court, because there are special rules that govern a trial whenever a defendant is charged with terrorism, and these rules are so permissive, so designed to ensure conviction, that it is inherently unfair to convict someone under these rules who is not charged with terrorism. Moreover, the term terrorism has no discernible meaning other than acts of violence committed by Arabs and/or Muslims against westerners. This illustrates why The New York Times’ Andrew Rosenthal was right when, under the headline ‘Liberty and Justice for non-Muslims’, he wrote: It’s rarely acknowledged that the [9/11] attacks have also led to what’s essentially a separate justice system for Muslims. In this system, the principle of due process is twisted and selectively applied, if it is applied at all.” It’s a separate system of justice so intrinsically unjust and unfair — designed to ensure that Muslims accused of terrorism have basically no chance of acquittal — that any trial that proceeds under its warped rules for non-terrorist defendants must be thrown out in its entirety, said the New York Court of Appeals. That is extraordinary. This case was brought to my attention by New York City lawyer Nirav Shah, who made four key observations about this ruling, and did so with such clarity and concision that, with his permission, I’m reprinting them here: (1) The case shows how broadly and pervasively prosecutors have tried to apply terrorism statutes to curtail rights of defendants. That the NY High Court has taken a stand against that trend is very good news, and hopefully starts a national trend. But the decision also highlights the underlying defects of most anti-terrorism laws, yet fails to overturn the statute. (2) In that vein, the Court flails uncomfortably at the definition of ‘terrorism’. Without making the point explicitly, its analysis underscores the extent to which that term has become a proxy for ‘Muslim crime’, both socially and legally. For example, the Court exempts undefined ‘street crime’ from the definition of terrorism, saying that the legislative history’s cited examples of terrorism indicate that the statute applies only to more ‘serious offenses’. (The cited examples in the legislative history are Oklahoma City and six instances of Muslim violence, including the Brooklyn Bridge shooting, which left exactly as many individuals dead as the case at bar.) The Court offers no principled affirmative description of what terrorism is or how serious a crime it needs to be to meet the definition (because such description would be impossible), yet they continue to treat the concept as something with discrete meaning. By the time the justices are done with it, terrorism is a less precise term than Potter Stewart’s ‘pornography’. (3) Without irony, the Court finds that “the concept of terrorism has a unique meaning and its implications risk being trivialised if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act.” There is no acknowledgment that the collective understanding itself (Muslim violence = terrorism) is trivialising. Particularly ironic is the phrase “terrorism has a unique meaning” in the context of an opinion that fails to provide any definition at all. (4) Finally, and perhaps most importantly, the Court rules that the defendant’s entire conviction (not just the terrorism counts) has to be overturned because the invocation of terrorism so unduly prejudiced his trial. All sorts of evidence about gang activities became admissible as part of the terrorist conspiracy that never would have come in on an ordinary murder trial. It is hard to overstate the centrality of the term terrorism when it comes to state power, policy and law. It is the term that launches wars and sustains the US posture of endless war, justifies unprecedented state secrecy, serves as the pretext for due-process-free imprisonment and assassinations, and sends countless of our fellow (Muslim) citizens to prison for decades for the most trivial, and often constitutionally protected, acts. Those Muslims convicted under separate rules of justice do not just get sent to normal prisons, but to their own special prison units now as oppressive as Guantanamo. And, as this case and so many others illustrate, these tactics are rapidly expanding beyond their original application — the persecution of Muslims — into a wide variety of expansions of government power. Yet this term, arguably in the abstract and certainly as applied, has no fixed meaning. It is just a manipulative slogan legitimising all forms of American violence against Muslims and delegitimising any acts meaningfully impeding US will. Worse, it is the overarching foundation for a completely separate system of justice for Muslims that is in exactly the same category as the most shameful episodes of US history. As always, it is the term that means nothing and justifies everything. It is truly valuable to watch New York State’s highest court unwittingly affirm all of those truths. The writer is a freelance columnist and can be reached at schuma.raja@yahoo.com