The Oregon Rebels are Guilty of Sedition, Not Terrorism

by Benjamin Studebaker

In Oregon, members of Cliven Bundy’s paramilitary organization have seized and occupied the headquarters building of the Malheur National Wildlife Refuge, which belongs to the United States Fish and Wildlife Service, a federal agency. Many people are calling Bundy’s rebels “terrorists” and accusing the media of treating them differently because they are white. Their point is well-intentioned–it is true that violent criminals from Middle Eastern backgrounds are more readily presumed to be terrorists by the press. But the argument is ill-applied to this particular case. The law is very clear–the Oregon rebels are guilty of sedition, not terrorism.

To start, let’s be clear about what’s happening in Oregon. A fellow named Dwight Hammond owns some land that borders some public property. The Hammonds have allegedly prevented a fence from being constructed between the two parcels, threatened government officials, committed arson, and poached protected deer. They were convicted of the arson, but because the damage was not severe they were initially given three month jail sentences. The case was appealed by the prosecutor, and the appellate court ruled that the mandatory minimum 5 year sentence for arson on public property must be upheld. The Hammands tried to appeal to the Supreme Court, but they were turned down. In a separate civil suit, the Hammands were also required to pay $400,000 in damages. Here’s Hammond and his son:

The decision to uphold the mandatory minimum sentence was deeply unpopular with the public, and 2,000 people signed a petition in an attempt to get President Obama to grant the Hammonds clemency. The Hammonds are serving their sentences and have paid the damages required by the court. Mandatory minimum sentencing laws unnecessarily increase the US prison population and keep many people incarcerated for long periods for relatively minor offenses. There’s a robust debate to be had about whether the Hammonds should have gotten 5 years or 3 months.

Cliven Bundy leads a rebel organization–many rebels are themselves members of the Bundy family. The Bundy rebels offered to assist the Hammonds. The Hammonds explicitly rejected their assistance, but the Bundy rebels decided to take action anyway, ostensibly on the Hammonds’ behalf. Armed people began arriving from out of town. Led by two of Bundy’s sons (though not Cliven Bundy himself), some of these people separated from a peaceful demonstration on January 2nd and began occupying the Malheur facility. There was no one in the building at the time and no one was hurt. They claim to have a strength of about 150, but media reports have varied, putting the figure at “between 6 and 12” or “between 12 and 25”. They demand that the government release the Hammonds and relinquish the Malheur National Forest so they can open it for logging. Here’s Bundy:

This might look like a standard occupation, familiar to left-wing protesters, if not for two key differences:

  1. The occupants are armed.
  2. The occupants have explicitly stated their willingness to “kill and be killed” if the government attempts to remove them.

The local county sheriff puts it this way:

These men came to Harney County claiming to be part of militia groups supporting local ranchers, when in reality these men had alternative motives to attempt to overthrow the county and federal government in hopes to spark a movement across the United States.

This is extremely serious, but does it fit the definition of terrorism? Most of the time, we should define terms in the way that’s most useful. Many of the people who want to call these rebels “terrorists” want to do so because it helps them make a legitimate political point about differences in media treatment of violence when it’s committed by different groups. But when we’re talking about whether a person is guilty of a crime, we cannot use a vague definition of terrorism like “willing to kill people in service of a political cause” even if that definition may feel intuitive or useful to us. Instead, we have to look at the legal definition for terrorism.

To be an “act of terrorism” in the legal sense, a violent act must meet four criteria:

  • Premeditated
  • Politically Motivated
  • Aimed at Civilians
  • Carried out by Non-State Actors (not the police or military of a sovereign state)

The Bundy rebels only meet 3 out of the 4. They have not harmed any civilians and have only expressed a willingness to use violence against government forces. They are not terrorists. Their actions do however most definitely meet the legal definition of a seditious conspiracy. My old copy of Black’s Law Dictionary defines seditious conspiracies this way:

A criminal conspiracy to forcibly (1) overthrow or destroy the US government, (2) oppose its authority, (3) prevent the execution of its laws, or (4) seize or possess its property.

The Bundy rebels’ actions are a seditious conspiracy if they fit even one of these four senses of the term, and arguably their actions fit all four senses. In the US, seditious conspiracy carries a sentence of up to 20 years.

So far, the Bundy rebels have not done anything serious enough to merit the far more serious charge of treason, which in the United States has this very limited definition:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

The Bundy rebels have not killed anyone yet, so they certainly cannot be said to be levying war (which requires violence on a scale that is beyond their very limited capacities), and they are not affiliated with any foreign enemies of the state, so they cannot be said to be giving aid and comfort.

The Bundy rebels should be arrested, charged, and convicted of seditious conspiracy. The state should try to do this peacefully, if possible, initially through negotiation. Should the rebels continue to resist, the state could try to cut supplies of power and water, block all routes in and out, and lay siege to the facility. The state should only resort to violence if the Bundy rebels fire upon its agents. Under no circumstances can the Bundy rebels be allowed to get away with what they have done–this is the second time members of the Bundy family have attempted to provoke an armed confrontation with the state. In 2014 they engaged in an armed standoff with the Bureau of Land Management in Nevada. The government failed to adequately establish that armed resistance will not be tolerated–to date no members of the Bundy family have been convicted in connection to the 2014 standoff, and the government even acceded to some of their lesser demands. A few months later, two individuals who participated in the 2014 standoff attacked and murdered 2 police officers and one wannabe hero in Las Vegas, before they were gunned down by law enforcement. For the sake of the rule of law, it is imperative that the government come down much harder on the Bundy rebels this time. Arrest them. Charge them. Convict them. Incarcerate them.

In the meantime, we need to be careful that in our rush to eliminate inequalities in the way the press treats violent criminals of different races we do not begin subjecting white criminals to the same rushed evaluations that we too often apply to Middle Easterners or blacks. The problem is not that the media is being too nuanced or deliberating too heavily about what the Bundy rebels are–it’s that some media outlets often don’t bother to do this anywhere near as thoroughly when the culprit is from a disadvantaged background. Treating white criminals worse may achieve equality, but it’s not the sort of equality we should aim for. We should achieve equality by treating criminals from disadvantaged backgrounds better–we should never level down.