Juliette Kayyem is an attorney who specializes in homeland security. I heard her on NPR today, speaking about why the Bundy brothers and their fellow protesters in Oregon are rightly called ‘domestic terrorists’. This appellation is disturbing, as are arguments Kayyem articulates to justify the label.

Her main premise is that we live together under the rule of law. Therefore when a group occupies federal property, with an implied use of force should government use force against them, we properly call them terrorists. This argument is weak or dangerous on three counts.

First, the premise about rule of law is plainly false. The country’s government crossed a huge divide from civilization and restraint to criminality when it first practiced, and then defended torture. No governmental official, acting in that capacity and for the executive branch, ever condemned these acts. The strongest disapproval we had was the president’s “Yeah, we tortured some folks.” Dick Cheney, high priest of torture, said publicly, “I would do it again.” No one in government has ever denounced Cheney’s acts as war crimes, or even mistakes.

A government that practices torture is not an organization that commands obedience through law, or through anything except application of pure power. It cannot credibly label other people terrorists after it has committed acts like these. When you make criminals responsible for enforcement of the law, you have tyranny and nothing else. The only response to tyrants and their so-called laws is resistance.

When I listen to Donald Sutherland as President Snow speak in the Hunger Games series, I’m fascinated by his enunciation and tone, as well as his plain meaning. Every word he speaks justifies the Capitol’s acts because they are the Capitol’s. The president further suggests that the Capitol must kill and torture people for their own good, for without these acts Panem would have no order and no security. The self-serving, self-righteous language is exactly what we hear from officials in Washington. President Snow is convincing: you forget for a moment he organizes games where children kill each other, for people’s entertainment.

Second, civil resisters are not terrorists merely because they break the law. The purpose of civil resistance is to call disputed laws into question. You organize disobedience to both the laws, and authorities who enforce them. Are all resisters terrorists because they take a stand against a particular legal regime? Draft resisters in the 1960s carried their case against the government to the edge of violence, and then some. How about guardsmen who shot four people at Kent State to keep order? Were they terrorists or peacekeepers? The state has always claimed a monopoly on use of force, which means that citizens who use force against the state are outlaws.

I think Kayyem would say you are exactly that – an outlaw and a terrorist – if your purpose is to challenge government’s authority – and you favor use of force, if necessary, to do it. By that reasoning, Paul Revere was a terrorist. So were Stokely Carmichael, Thomas Jefferson, Abbie Hoffman, and John Brown. Interestingly, one’s opinion about John Brown’s attack at Harper’s Ferry, and his execution, indicated which side you would take in the civil war that followed. That simplifies things a bit, but you have the point.

Third, when you apply a label like terrorist to civil resisters, you are preparing to lock them up for a long time, or kill them. You declare at the outset, before any negotiation or legal proceeding, that they are outlaws worthy of extreme punishment. In fact, since we are in a war against terrorists, and have been for almost fifteen years, you declare at the outset that the protesters are enemies of the state, and that they deserve the same fate the state deals to enemies abroad: death.

Yet the protesters in Oregon act from the same desire for freedom we all have. They believe they act in self-defense, and to preserve Constitutional rights. From their perspective, they uphold legitimate authority against a government that has no justification to do what it does. You may think occupying a federal outpost in a remote area of Oregon is not a good way to handle grievances related to land management, but they do have a grievance, and they clearly think they have exhausted other means. To call people in that position domestic terrorists, when they have not harmed anyone or destroyed any property, says a lot about the person who uses the term, and little about the individuals who carry the label.

If feds want citizens to respect laws the feds enforce, let enforcers recognize close connections that exist among legal restraints on government’s authority, citizens’ obligations to obey the law, and justifiability of citizens’ behavior when they decide to resist authority they regard as unrestrained. These complicated connections do not support treatment of resisters as enemies of the state.

Feds treated Branch Davidians in Waco as enemies of the state, and we know what happened there. If government persuades people that a small group of protesters in Oregon are terrorists, it can persuade people that anyone who holds a weapon and resists authority is a terrorist. If that happens here in the United States, welcome to Panem. Under that model, resistance to tyranny threatens public order: pure power must address the threat accordingly, with all required force.