Federal land is currently being occupied by protestors. Or, according to some, by domestic terrorists. But pigeonholing these guys with either label isn't quite as easy as it might first seem. There's some history here that needs pondering before anyone decides exactly what to call the group and, more importantly, what to do about them. Because it is a little more complicated than it first might seem, at least for those who care about the concepts of fairness and consistency.

First, there is indeed "terrorism" at the heart of this issue, but from an unexpected angle. The legal case (or cause célèbre) that spurred the protestors' actions hinged on the definition of terrorism, long before any external group even got involved. An informative article from Salon points out the particulars of how the legal concept of terrorism is involved in the case of Lincoln Hammond Jr. and his son Steven Hammond:

The charges against the Hammonds originally accused them of committing arson four different times, including three different fires in 2006, as well as tampering with a witness; an earlier indictment described arson dating back to 1982, though that charge was dropped. When a jury found them guilty on these two arson charges but continued to deliberate on the others, the Hammonds made a deal to plead guilty to those two, but serve the sentences at the same time. The local judge originally sentenced the father to three months, and the son to a year and a day, even though the charge carried a five year mandatory minimum sentence. The government appealed to get the mandatory minimum, and won at the Ninth Circuit. The Hammonds then appealed to the Supreme Court, but the conservative court -- which has been generally unsympathetic to the kind of Eighth Amendment claims the Hammonds made -- did not take their case.

Why such a steep prison term? Because it was arson committed upon federal property. The article explains:

As noted, the mandatory minimums were instituted as part of a bill, the Anti-Terrorism and Effective Death Penalty Act, passed in response to a 1993 al Qaeda-related terrorist attack on the World Trade Center and the 1995 McVeigh anti-government militia attack. Arson on federal property got named a terrorist crime along with a bunch of other crimes that now affect alleged Islamic terrorists more than anyone else.

This is where things start to get muddled for those prone to knee-jerk assessments or condemnations. Because the arson part of this law has been most notably used not against "alleged Islamic terrorists," but against "eco-terrorists" in the late 1990s. This was the era, if you'll recall, of the "Earth Liberation Front," the "Animal Liberation Front," and the concept of "monkeywrenching." The E.L.F. and A.L.F. were radical individual groups in a decentralized organization (or a classic underground "cell" structure). Some of these individual cells drew the line between permissible actions to achieve their political goals and impermissible actions that involved destruction of property and other provocative acts. But for other cells, this line didn't exist, or was drawn in a far different place. A string of arson attacks (and other destruction of property) were attributed to A.L.F. or E.L.F. cells. These included burning both federal property (a ranger station) and private property (a ski resort, a lumberyard, a car dealership), in the name of a political cause.

The F.B.I. treated these as terrorist acts (at one point even identifying them as America's "top domestic terrorist threat") and in 2004 launched Operation Backfire in response. Over a dozen people were indicted. Those that were convicted received long prison sentences (five years or more), sometimes due to being essentially tried as terrorists rather than arsonists. At the time, some on the left decried the long prison sentences as being harsh and unjustified.

Now, burning down a ranger station is obviously more provocative than burning acres of federal wildlife refuge land, or even occupying a ranger station. But the Hammonds faced mandatory minimum sentences because their arson was also treated as terrorism, by the letter of the same law. Should it have been? Should the E.L.F./A.L.F. defendants have been similarly charged? Both debatable subjects, to be sure. But that debate should definitely include how the terrorism laws changed in the 1990s, and how they have been used since.

This brings us to another point of reflection, one that gets glossed over by those either urging immediate action against the occupiers in Oregon or those claiming unfairness in the leniency of how law enforcement is currently treating them. Here's one example, again from Salon:

When peaceful, unarmed protesters tried to make a statement in 2011 with the Occupy movement, their encampments were brutally dismantled by law enforcement. Police didn't hesitate to use tear gas, rubber bullets and batons to clear them out. Nor was there any hesitation to call in the National Guard on Black Lives Matter protesters in Baltimore. So far, the Malheur occupiers are meeting no such resistance.

But this is a bit of rhetorical excess, no matter how much you agree with the sentiments expressed. Occupy Wall Street was indeed "brutally dismantled," but stating that police "didn't hesitate" is just flat-out inaccurate. Occupy Wall Street began on September 17th, 2011. The police cleared it out on November 15th -- almost two full months later. There was obviously quite a bit of hesitation on the part of the authorities, and the occupation was allowed to exist for a fairly long time before the harsh measures were used.

Those who now advocate what seem like commonsense courses of action for the government to take in Oregon might want to consider how they felt about Occupy Wall Street and all its emulators across America. Should the police have formed an impenetrable cordon around the occupied park, and cut off all food and other supplies to the protestors? That is what some are advocating now in Oregon. Should they adopt a "let people freely leave, but nobody else goes in" policy? Again, consider what that would have meant in Zuccotti Park and how you would have felt about it.

The New York City park in question was actually private property, and not federal (or even governmental) land. Occupying it was supposed to be a peaceful protest, but the group never coalesced around any sort of list of concrete demands -- even the word "demands" was rejected by them. "We're here and we won't leave until real changes are made" is kind of a vague thing to protest, when you can't even define what real changes you want made. This is something else to consider when reacting to the Oregon occupiers, who also seem quite vague on what exactly it would take for them to be satisfied enough to end their occupation. They want the return of federal land, it seems, but pinning down exactly what that would mean is a bit hazier, at least as of now. If they're really dedicated to stay until the federal government hands over all its lands in the West, they're going to be there for a very long time, to put it bluntly.

The two cases, obviously, have major differences. Occupy Wall Street happened in a dense urban environment. The Malheur National Wildlife Refuge might be called "the back of beyond," or "the middle of nowhere." The Wall Street occupiers were not armed and did not brandish weapons or make (or even imply) threats to shoot law enforcement officers. The Oregon folks are armed, and have made insinuations as to how hard they'll fight to continue their occupation, against any official who tries to evict them. But, so far, there has been no actual violence. In fact, so far there has been no real response whatsoever from the government. It's hard to aim a weapon at the jack-booted government thugs (so to speak) when they don't even bother to show up.

One other case might be more applicable to the discussion, although it happened less recently. In November of 1969, after several temporary forays, a group calling themselves Indians Of All Tribes occupied Alcatraz Island in the San Francisco Bay. This is one of the most interesting occupations of federal land for political purposes, because the occupiers had a legal rationale to back up their claim. According to them, the 1968 Treaty of Fort Laramie stated that all retired, abandoned, or out-of-use federal land was to be returned to the Native Americans from which it had been originally obtained. Since the Alcatraz prison had closed in 1963 and the land had been declared surplus property in 1964, the Indians claimed the land was fair game. The original occupation only lasted four hours (in March of 1964) and the occupiers generously offered the federal government the same amount for the land that had initially been offered when the government bought it -- 47 cents per acre, a total of $9.40 for the whole island.

The later 1969 occupation, however, lasted for an incredible 18 months. At its height, 400 people were living on the island, supplied by donations brought in by boat. The federal government had announced its intention to make Alcatraz a national park, but the occupiers had a far different idea -- a cultural center to educate the public on the history of Native Americans.

This was occupation in its purest form of political protest. The group wanted the land returned to them as the federal government had promised, so long ago. They felt they had a real and justifiable legal claim to the land. They engaged in peaceful protest to bring about change. Eventually they were forcibly removed from the island, but only after a year and a half of successfully occupying it. However, a few years later, other Native American activists occupied a town (Wounded Knee, South Dakota) for over two months, where gunfire was exchanged with law enforcement.

There are no absolute parallels between what is going on in Oregon and any other confrontations between law enforcement and protestors. Each case is unique. Of course it's a valid point that the racial and ethnic makeup of the protestors is a big factor in the government (so far) basically ignoring the guys in Oregon. Do you think the cops would react differently if the group were made up of African-Americans brandishing weapons on federal property? Or Native Americans? The hardest question to ask in this vein might be: What do you think the public would loudly be demanding right now if it were a group of armed Muslims?

Obviously, the issue would be a lot different as well if the protest were happening inside a populated area -- say, taking over a federal courthouse in a random city, or even (worst case) taking over the United States Capitol. My guess is that even white ranchers would face a lot more blowback if they had attempted occupying such high-profile targets, rather than a mere wildlife refuge.

But those who are quick to label the group domestic terrorists should remain consistent. Were the Occupy Wall Street folks also terrorists? How about the E.L.F. or the occupiers of Alcatraz or Wounded Knee? Does occupation of property define the term, or is it threats of (or acts of) violence? Should this include the original Oregon farmers, for their arson? Where should the line be drawn?

Right now, due to the legislative reaction from the first attack on the World Trade Center, the definition of domestic terrorism is quite broad and stiff mandatory minimum sentences are required for offenders. Should this, however, be reasonably be applied in the sentencing of the ranchers for burning 100-plus acres of federal land? In other words, is that the same thing as firebombing a federal courthouse? Where should the legal line be drawn? When does political protest devolve into terrorism? How should the crime of vandalizing a nuclear missile silo by symbolically pouring blood on it be handled (see: Plowshares Movement)? Terrorism, or legitimate First Amendment protest?

It's a lot easier to fall back on ideological knee-jerk responses to such incidents as it is to have a real debate about the definition of what is acceptable political protest and what should be called terrorism (or even "a prosecutable offense," for that matter). Consistency demands that the tactics used be examined and judged separately from the political motivations of those using them, but it's a lot harder to do so in real life. This is especially true for those advocating how the government should now react to the situation in Oregon. Because advocating for any one plan of action -- whether to ignore them and hope the protest will collapse of its own weight; to cut them off and not allow anyone (or any supplies) in; or to go in guns blazing and reclaim the land -- should mean that that's what you advocate in any similar protest whose objectives you might actually agree with. To put it another way, if it's fair game for a righty protest, then by equal treatment under the law it should also be a valid law enforcement tactic to use against a similar lefty protest.

-- Chris Weigant

Cross-posted at The Huffington Post

Follow Chris on Twitter: @ChrisWeigant