Journal of Air Law and Commerce

What Is Terrorism?

Abstract

Is Gotham's Joker a terrorist? What about a school shooter? As we approach the twenty-fifth anniversary of the 9/11 attacks, the United States still lacks a monolithic legal definition of 'terrorism,' creating a dangerous 'motive gap' between federal statutes. This Article analyzes the friction between the motive-heavy definition of 'domestic terrorism' in Title 18 (which includes a mens rea aspect) and the conduct-focused definition of 'terrorist activity' in Title 8 (which focuses on overt acts). Using the hijacking of Flight 93 and the Columbine shootings as case studies, we demonstrate how Title 18's political requirement creates a coverage void for insurers and air carriers: nihilistic mass violence often fails to qualify as 'terrorism' under standard exclusions. We further argue that the insurance and aviation industries are commercially vulnerable to modern, ideologically ambiguous violence because they rely on definitions designed for Cold War-era state actors. This Article proposes that general counsels abandon the motive-based standards of Title 18 and TRIA in favor of the broader, objective mechanics of Title 8 to secure contractual certainty in an era of endemic, often motive-ambiguous violence.