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 stateâ€™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 â€œSt. James Boysâ€ (SJB). In August, 2002, Morales and fellow gang members went to a party, saw someone from a rival gang which they believed responsible for a friendâ€™s death, and told him to leave. When he refused, they planned to attack him after the party. When the party ended, 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 â€œterrorismâ€ under an anti-terrorism law that was enacted in New York in the aftermath of the 9/11 attack. When enacting the law, the legislature stated that it is designed to ensure that terrorists â€œare prosecuted and punished in state courts with appropriate severityâ€. Under the law, this newly created â€œterrorismâ€ crime is committed whenever one acts with the â€œintent to intimidate or coerce a civilian populationâ€, but the law contains no definition of that term. At trial, Morales vehemently argued that what he was accused of doing could not possibly be â€œterrorismâ€, but the prosecutors insisted – and the trial court agreed – that his violence â€œfurthered the [gang]â€™s objective to intimidate or coerce other Mexican-American gangs in the Bronx and, as a result of those activities, the [gang] intended to intimidate and coerce the entire Mexican-American community.â€ The jury found him guilty on all counts, including the â€œterrorismâ€ charges, and the Court of Appeals set out to determine whether the terrorism charges were validly applied to this violence.
Whatâ€™s initially so striking about the decision is the courtâ€™s obvious inability to state what â€œterrorismâ€ even means. The court ultimately concludes, unanimously, that â€œterrorismâ€ charges are inappropriate for Morales because acts of gang violence â€œdo not match our collective understanding of what constitutes a terrorist actâ€, whatever this â€œcollective understandingâ€ might be. This reasoning is essentially the same as what US Supreme Court Justice Potter Stewart infamously offered when applying laws criminalizing obscenity, which, he said, entails â€œthe task of trying to define what may be indefinableâ€. Opining that â€œobscenityâ€ means â€œhard-core pornographyâ€, he explained: â€œI shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.â€
Here, the court in Morales is similarly incapable of defining terrorism. It cannot state what it actually means. All it can do is insist, with no basis, that we have a â€œcollective understanding of what constitutes a terrorist actâ€ and â€œthe Legislature did not intend for the crime of terrorism to cover the illegal acts of a gang member committed for the purpose of coercing or intimidating adversaries.â€ To illustrate our supposed â€œcollective understandingâ€, the court lists the seven examples of â€œterrorismâ€ referenced by the findings that led to the law – six of which 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 â€œterrorismâ€, and the court thus concludes: â€œThe offenses committed by defendant and his associates after the christening party obviously are not comparable to these instances of terroristic acts.â€ â€œObviouslyâ€.
But hereâ€™s the most amazing and significant part of the courtâ€™s decision. Once it concluded that the â€œterrorismâ€ charges against Morales were inapplicable, it could have simply dismissed those counts and upheld the conviction on all the other standard counts of murder. Thatâ€™s what the intermediate appellate court did after it, too, found the terrorism statute inapplicable to Moraels: it threw out the â€œterrorismâ€ 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 â€œterrorismâ€, 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. Hereâ€™s what the court said about that [emphasis added]:
â€œBy proceeding on the terrorism theory, the People were able to introduce evidence about numerous alleged criminal acts committed by members of the SJB gang over the course of three years. Without the aura of terrorism looming over the case, the activities of defendantâ€™s associates in other contexts would have been largely, if not entirely, inadmissible.
â€œBased on the record, it is apparent that the volume of proof regarding unrelated assaults, murders and other offenses created a reasonable possibility that the juryâ€™s findings were prejudicially influenced. Hence, the spillover effect requires reversal and a new trial on the underlying offenses.â€
What the court is admitting here is amazing. It is saying that when someone is accused of terrorism, the rules governing trials and law completely change. All sorts of things that the state is normally barred from doing on the grounds that it is unjust suddenly become permissible when someone faces terrorism charges. Indeed, so â€œprejudicialâ€ are these special rules of â€œjusticeâ€ for terrorism cases that anyone convicted under these rules is, by definition, treated unfairly if terrorism is inapplicable.
But if these special rules for terrorism cases are prejudicial and unfair when applied to murder defenders, then they are unfair for everyone. It means these rules are inherently unfair. But thatâ€™s what has happened in the post-9/11 era: a whole new system of â€œjusticeâ€, with all new rules designed to ensure convictions and long prison terms, have been invented exclusively for those facing â€œterrorismâ€ charges. And since the term â€œterrorismâ€ has no discernible meaning other than â€œacts of violence committed by Arabs and/or Muslims against westernersâ€, this illustrates why New York Times editorial page editor Andrew Rosenthal was exactly right when, under the headline â€œLiberty and Justice for non-Muslimsâ€, he wrote:
[I]tâ€™s rarely acknowledged that the [9/11] attacks have also led to whatâ€™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.â€
Itâ€™s a separate system of justice so intrinsically unjust and unfair – designed to ensure that Muslims accused of â€œterrorismâ€ 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. Thatâ€™s 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, Iâ€™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 â€œterrorism.â€ Without making the point explicitly, its analysis underscores the extent to which that term has become a proxy for â€œMuslim crime,â€ both socially and legally. For example, the Court exempts undefined â€œstreet crimeâ€ from the definition of terrorism, saying that the legislative historyâ€™s cited examples of terrorism indicate that the statute applies only to more â€œserious offensesâ€ (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, â€œterrorismâ€ is a less precise term than Potter Stewartâ€™s â€œpornography.â€
(3) Without irony, the Court finds that â€œthe concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act.â€ There is no acknowledgment that the collective understanding itself (Muslim violence = terrorism) is itself trivializing. Particularly ironic is the phrase â€œterrorism has a unique meaningâ€ 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 Defendantâ€™s entire conviction (not just the terrorism counts) has to be overturned because the invocation of â€œterrorismâ€ 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 â€œterrorismâ€ 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 donâ€™t 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. Itâ€™s just a manipulative slogan legitimizing all forms of American violence against Muslims and delegitimizing any acts meaningfully impeding US will. Worse, itâ€™s 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, itâ€™s the term that means nothing and justifies everything. Itâ€™s truly valuable to watch New York stateâ€™s highest court unwittingly affirm all of those truths.
For those commenters shocked and horrified by the notion that â€œterrorismâ€ has no fixed or real meaning, see the second-to-last section of this piece I wrote a few months ago elaborating on that point with ample documentation and citations – with examples such as this and this – as well as this interview I conducted (also here) with Remi Brulin, the NYU and Sorbonne scholar who has extensively studied the discourse of terrorism.