Conceptually, “terrorism” is complicated. Although a definition is simply stated – terrorism is the unlawful use of violence for political ends, usually against civilians – the “unlawful” component of the definition and the “civilian” component blur quickly. An attack by a non-uniformed independence fighter on a police station closely aligned with military operations treads the line. So does the civilian who is willing to give coded warnings to fighters when regime forces enter a neighborhood. One man’s terrorist is another man’s freedom fighter, or so they say.
Notwithstanding the legal gray zones, there are national and international legal regimes dedicated to stamping out the practice. Enter Pooja R. Dadhania’s Paper Terrorists: Independence Movements and the Terrorism Bar, which tackles a discrete, specific ambiguity in the law of terrorism and proposes a practical, reasonable, and immediate measure that can be taken to bring clarity to at least a thread of the far more intricate tapestry. Her article is one I like a lot, and it is one with which I encourage scholars of this difficult area of the law to engage.
Dadhania’s focus is immigration law, and the complexities caused by the “terrorism bar” used to prohibit U.S. entry to those who have committed unlawful violence. Created by the 1990 Immigration Act and expanded in the wake of the September 11, 2001 attacks, the terrorism bar in the Immigration and Nationality Act (INA) precludes any noncitizen who has engaged in “terrorist activity” from most immigration relief, including asylum. The breadth of the term “terrorist activity” in the INA is “staggering,” she writes, “capturing conduct that may not be commonly considered terrorism and that would include the conduct of American Revolutionary War soldiers” and irregulars fighting for independence in 1776. In one vivid illustration Dadhania offers, an Eritrean applicant was denied for receiving physical fitness exercises and one rifle-shooting lesson from the forces fighting against Ethiopia during the then-as-yet-unsuccessful Eritrean war for independence.
The contribution Dadhania makes to this high-stakes debate is asking whether the applicant was working on behalf of an “independence” movement or whether it was an opposition movement. If the former, then both U.S. and international law permit immigration judges to determine that the applicant was engaged in lawful activities for a “state”. If the latter, the same activities would be “unlawful” as they would violate the law of the incumbent regime resisting the opposition movement.
Dadhania reviews the sources of the United States’ approach to the recognition of foreign states —from executive branch practice to the Restatement (Third) of Foreign Relations Law to the Foreign Sovereign Immunities Act to the act of state doctrine—to outline the possibilities, and sources of confusion, that now vex the application of the terrorism bar. After careful and detailed analysis, Dadhania recommends that adjudicators adopt the Restatement standard in the context of the terrorism bar to evaluate the lawfulness of a noncitizen’s conduct in furtherance of an independence movement. The Restatement bases recognition on “a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other states.”
The Restatement is particularly important because it incorporates the terms of the Montevideo Convention, which has been ratified by the U.S. and is broadly representative of either treaty or customary international law of nearly every country in the world. The Montevideo Convention dates to 1933, when Central and South American states argued that there should be uniform international criteria for recognition of statehood as part of a broader effort to reject the dispute or opposition to their statehood by former colonial regimes. Montevideo Convention parties agreed to criteria that made it easier for other dependent states with limited sovereignty to gain international recognition. According to Dadhania, the choice between alternative (what she labels “recognition-based”) standards and the Restatement standard is ultimately a decision about which branch of government is most competent to apply the standard as well as the standard’s accuracy. “In the area of foreign relations or issues that are directly adjacent to foreign relations, the common sensibility may be that the executive branch is more competent than the judiciary to make such decisions. However, the inquiry is more nuanced in the context of immigration law,” and therefore the judiciary is better suited to 1) make the determination and 2) apply a standard not complicated by the executive’s perhaps conflicting interests. The Restatement standard is fact-intensive – a feature that lends itself well to judicial application.
It is important to recognize that Dadhania’s article doesn’t address other areas where the Department of Homeland Security may enter evidence for disqualification based on prohibited activities; it just covers the subset of “unlawful “activities that have caused so much confusion. As she notes, determinations that implicate foreign sovereign immunity, diversity jurisdiction, or the act of state doctrine may have external consequences because they affect not only private persons, but foreign entities as well since courts are either granting or denying rights based on statehood.
Dadhania’s solution is elegant and straightforward and deserves the attention of the U.S. government, the scholarly community, and the immigration bench.