Terrorism without Mens Rea?

We’ve had our share of disagreements about the semantics of “terrorism” on this blog, but I think we can all admit that this claim, (supposedly) made by Senator Rick Scott (R-FL) about the recent shooting at the Pensacola Naval Air Station, makes no sense at all. From a story in The New York Times:

Senator Rick Scott of Florida, also a Republican, said the attack should be considered terrorism, regardless of the gunman’s motivation.

If we eliminate the gunman’s motivation altogether, then all we’re left with is the fact that a Saudi trainee shot some people at a naval air base. That fact by itself is consistent with an accident. But however we define it, an act of terrorism can’t be an accident.

I take more than a passing interest in definitions of “terrorism”–having been accused more than once of being a terrorist. (Yes, falsely.) I’m not aware of a definition anywhere in the literature or on the books that defines terrorism by omitting what the definer regards as its distinctive motivation–in other words, that regards terrorism as the equivalent of a strict liability offense. Terrorism without mens rea? Rick Scott can’t be that dumb, can he?

Well, no. It turns out that the Times’s reporting makes Scott’s comment sound dumber than it really was. This is what he actually said (from a local-to-Florida source):

Friday, Sen. Scott took to Twitter to express his concern, saying “we shouldn’t be providing military training to people who wish us harm.”

“I’m extremely concerned by the reports that this shooter was a foreign national training on a U.S. military base in Florida. Whether this individual was motivated by radical Islam or was simply mentally unstable, this was an act of terrorism,” he wrote in a statement. “It’s clear that we need to take steps to ensure that any and all foreign nationals are scrutinized and vetted extensively before being embedded with our American men and women in uniform.”

That doesn’t quite say that the shooting was terrorism “regardless of the gunman’s motivation.” It says that it’s terrorism regardless of two obvious motivations for the act, without specifying what other motivation might be involved (and without saying or implying that no specific motivation was involved). That certainly leaves things in an uninformative muddle, but isn’t as flat-out dumb as the Times’s reporting would suggest.*

Moral of the story: don’t trust the Times accurately to paraphrase anyone it regards as opposed to its (supposedly) liberal worldview. To illustrate this in a bit more detail: sometime next week, I’ll be posting an email exchange I had with Times reporter Maggie Astor, regarding her recent reporting on Tulsi Gabbard. Really no other way to put it: Astor’s response to my criticisms is an embarrassing shit-show of misquotations, misattributions, and misinferences. But read it when I post it, and decide for yourself.

The mainstream liberal press likes to pride itself on its commitment to facticity, and likes to attack alternative news sources (including blogs) as not-quite-up-to their exalted standards of precision. It also likes to complain a lot when the political right accuses it of of being “fake news.” I don’t have much sympathy for the political right, but the problem is, the mainstream liberal press often is fake news. Fake news, like fake orgasms, may work for awhile, but eventually, the ruse wears thin and becomes insultingly counter-productive. Both problems have the same solution: a bit more honesty, along with the confidence gained through experience that honesty can, in principle, lead to mutual satisfaction.


*In retrospect, it occurs to me that the most obvious way of reading Scott’s claim is to take it at face value as an inclusive disjunction: the shooting was either motivated by radical Islam or mental disorder, and in either or both cases, it’s terrorism. On this interpretation, Scott’s claim says practically the opposite of the Times’s paraphrase of him. It doesn’t say that the act was terrorism regardless of motivation, but was terrorism because it was motivated in one or both of two ways. His point was that we can call the act terrorism before we decide on which disjunct applies (because one of two must apply), not that we can call it terrorism independently of our knowledge of its motivation as such.

10 thoughts on “Terrorism without Mens Rea?

  1. Let us suppose that an evil doer terrorist convince/persuade a mentally challenged ten years old to, unbeknown to her, carry a package containing a time bomb that will detonate once she reaches Penn Station during the rush hour to cause maximum damage and hence to harm and kill a substantial number of people. Suppose also that while walking to Penn Station, the ten years old stopped at a Starbuck Café to buy a bottle of water. Unfortunately or fortunately (because if the bomb would have explored during rush hour at Penn Station more innocent people would have been seriously harmed or killed), she dropped the bottle of water, and when she tried to pick it up the time bomb “accidentally” exploded killing many innocent people. Although there seems to be no mens rea on the part of the carrier, and the time bomb aimed for Penn Station “accidentally” exploded somewhere else, can we consider this a terrorist act? She certainly does not seem to be a terrorist, but it is not clear to me that her act is not a terrorist act. The point of the counterexample is to perhaps show that neither mens rea on the part of the carrier nor lack of accident is necessary to identify an act as a terrorist act.
    VM

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    • Well, sending the child out with the bomb is the original terrorist act, and the sender had mens rea. So the child’s lack of mens rea doesn’t really enter into it; in this context the child is essentially an (unreliable) tool of the terrorist. This doesn’t seem that different from a simpler case where a terrorist sniper aims at person A but accidentally (perhaps owing to a similarly unreliable weapon) instead hits person B next to them. Firing at person A was a terrorist act, and person B’s death occurred as an accidental result of an otherwise failed terrorist act. I don’t know that I’d want to say that killing B was itself a terrorist act. But B was certainly killed in the course of a terrorist act.

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  2. Given that Scott takes this incident, regardless of which disjunct is true, as grounds for taking “steps to ensure that any and all foreign nationals are scrutinized and vetted extensively before being embedded with our American men and women in uniform” (rather than just for more careful vetting of military trainees in general), he also seems to be assuming not only:

    a) foreign nationals are more likely than American citizens to be radical Islamists;

    but also

    b) foreign nationals (even when not radical Islamists) are more likely than American citizens to be mentally unstable.

    I wonder how he would defend (b).

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    • LOL. He wouldn’t. We are, of course, dealing with a case of disjunctive syllogism by red herring disjunct: assert (p or q) where q is just thrown in to draw attention away from the fact that you mean to be begging the question in favor of p.

      To defend your claim that p, you quietly negate q when no one is paying attention. If anyone asks about it, you assert, loudly, that you are after all defending a disjunction, (p or q). Jesus! Don’t people pay attention? How are you supposed to know which disjunct obtains? And why would someone asserting a disjunction need to defend any given one of the disjuncts anyway, huh? What kind of question is that, “how would he defend (b)”? Instead of playing politics, shouldn’t the askers of such questions focus on more pertinent things, like the dangers that our soldiers and first responders face every day, and the freedoms they have won for us through their sacrifice?

      Then you quietly negate q. I leave the next inference as an exercise.

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  3. I basically agree with Roderick here. The terrorist act in question is the act conceived, planned, and executed by the terrorist, who has mens rea. Assuming zero culpability on the part of the child, it’s obvious she’s not a terrorist, but I also think it’s clear that she engages in no “terrorist act.”

    Dropping the bottle is not an act on her part (it’s an event or a happening), and neither is the bomb’s accidentally going off as a result or the consequent killing of the bystanders (also mere events). The only act the child undertakes in the example is going to Penn Station with the bomb. “But going to Penn Station with a bomb” when you don’t know what you’re doing is, as I see it, not a terrorist act on the part of the carrier. If we could stop her just before she entered, and ask her what she thought she was doing, the response would ex hypothesi involve a non-culpable answer falsely invoked to explain a terrorist act initiated by the terrorist. The situation would be no different from telling a small child to pick an item up from inside a store and bring it outside to the adult making the request. That’s an act of theft on the part of the adult making the request (which to a child might have the perceived force of an order), but not the child. “What did you think you were doing?” “I was bringing the bottle to the man.” Even if you have a trespassory taking, that belief on the part of the taker doesn’t make the taker’s act theft.

    Of course, to the extent that we introduce moral awareness of any complexity on the child’s part, we introduce some degree of culpability, however small. And if we do that, I suppose that child becomes something of a terrorist. But in that case, she also has mens rea. For present purposes, I’m assuming that being so young and mentally challenged on top of that, the child has no idea what she’s doing. So none of that applies: no mens rea, no terrorist act on her part.

    If instead of a child, we imagine a bomb strapped to a dog, I think it becomes clear that the dog has not engaged in a terrorist act. For the purposes of this particular example, though, a mentally challenged child is identical to a dog in morally relevant respects: both lack moral awareness, moral responsibility, and mens rea. (I don’t mean that a child is morally identical to a dog in all respects, just that they are with respect to the question we’re discussing.) I’m inclined to think that there’s hesitation to deny that the child has engaged in a terrorist act only because it’s tempting to oscillate between giving her some minimal mens rea versus depriving her of any. But if she’s completely deprived of moral awareness, the dog case clarifies the one involving the child.

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