The White House’s Benghazi Problem

After days of holding back, the White House on Thursday labeled the Sept. 11 assault on the U.S. consulate in Benghazi a "terrorist attack." The incident, which involved heavy gunfire and rocket-propelled grenades (RPGs), killed four Americans including U.S. Ambassador to Libya Christopher Stevens. Highlighting the suspected presence of militia and terrorist elements in Libya, White House spokesperson Jay Carney told the press corps, "It is, I think, self-evident that what happened in Benghazi was a terrorist attack."

The declaration comes one day after Matthew Olsen, the director of the National Counter-Terrorism Center (NCTC), told a Senate committee that — despite the absence of "specific intelligence that there was a significant advanced planning or coordination for this attack" — the four Americans "were killed in the course of a terrorist attack on our embassy."

It all sounds like common sense, right?

But there’s just one problem with these statements: All acts of terrorism, by federal statute, require premeditation. If, as Carney acknowledged, there is "no information at this point to suggest that this is a significantly pre-planned attack," then the plotting criterion has not been met. No premeditation, no terrorism.

The confusion over how to characterize the Benghazi attack stems in part from a much larger problem: Policymakers — including even those at the highest levels — lack a clear understanding of what constitutes "terrorism." For political operatives like Carney, this is understandable. After all, he takes his cues from the experts in government. But for Olsen, whose job requires an intimate knowledge of the legal definition of terrorism, the oversight is troubling.

The statutory definition of terrorism is codified in Title 22 of the U.S. Code as: "premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents." As this definition indicates, officials at the NCTC — the agency tasked with making such determinations — must answer five questions in the affirmative before deeming an act to be terrorism:

1.      Did the incident involve violence?

2.      Was the target a noncombatant?

3.      Was the perpetrator a subnational or non-state actor?

4.      Were the perpetrators politically motivated?

5.      Was the attack premeditated?

While there is evidence from Benghazi to support the first four criteria, to date, U.S. officials have not shared any concrete evidence of what is known in criminal law as "malice aforethought." Libyan officials insist that the attacks were preplanned, but they do not appear to have yet convinced their American counterparts.

The White House is no doubt feeling pressure from the right over the security measures in place at the Benghazi consulate. Following a Capitol Hill briefing Thursday with senior officials, including Secretary of State Hillary Clinton and Director of National Intelligence James Clapper, Rep. Bill Flores (R-TX) told reporters, "They’re all just trying to cover their behinds." Similar sentiments were echoed by Rep. Dana Rohrabacher (R-CA), who said "it’s really a stretch — a long stretch — to believe that all of this by coincidence happened on 9/11."

One of the sharpest beratings came from former Speaker of the House and Republican presidential candidate Newt Gingrich, along with his former adviser John McCallum, who criticized Obama and his administration for referring to the attack as "senseless violence" as opposed to an act of "murder."

The pressure might explain the administration’s reversal on whether to declare the assault an act of terrorism. But as the nation’s former top lawmaker should know, murder too requires premeditation.

The FBI has dispatched a team of federal investigators to Benghazi. Due to security concerns, though, they arrived only in the past few days. Prudence dictates that we let these agents conduct their investigation free of influence from Washington. While it might be hard to resist this temptation in the midst of the political season, we owe it to the victims to reserve our judgments until the FBI has had time to complete its work and present us with all the facts.

In the end, Olsen, Carney, McCallum, and Gingrich might be proven correct: The 9/11 attacks in Benghazi might indeed be acts of both terrorism and murder. But as a nation of laws, we need to let those laws guide us. Because the stakes are so high — including providing the legal grounds for arrest or targeted killing — we need to go on more than gut feelings.