In constructing the Terrorism Risk Insurance Program, Congress faced a threshold question: What is an act of terrorism?
In the case of an extreme terrorist attack, the answer is obvious and generally not contentious. Few would dispute that a sophisticated and well-planned attack by an established international organization committed to conflict with Western governments that results in thousands of deaths and billions of dollars in property damage constitutes an act of terrorism. At the other end of the spectrum, it can be far more challenging to achieve consensus whether the anonymous late-night arson of a famous-brand clothing store amounts to an act of terrorism or merely an act of vandalism.
In response to these challenges, Congress established a process to decide whether an act of violence amounts to an act of terrorism for the purposes of the program. In doing so, Congress has considered, although perhaps not always fully resolved:
- Who makes the decision;
- When the decision should be made;
- The criteria the decision-maker should apply; and
- Whether the decision can be challenged.
The decision whether to certify an act of violence as an act of terrorism has significant consequences well beyond the program itself and, in fact, may create conflict with other federal definitions of terrorism. For these reasons, TRIA’s history of legislative renewals and the changes those renewals bring to the program evidence continued refinement of this fundamental question.
2.1 – The Decision-Maker
2.2 – Certification Criteria
2.5 – Contractual Rights
2.6 – Timing of the Decision