Terrorism, I can't write.

In response to my discussion of the Metrolink accident outside LA and the murder charges, Phil Carter e-mails me the following:

Yes, but could you characterize this incident as an act of domestic terrorism?

What are the arguments for/against?

I will tell you that it was initially seen as a potential act of terrorism by local authorities. That was later amended when they caught the guy. But what if it turns out he had a political purpose in mind?

In truth this is a loaded question, not unlike the ones he asked our class a year ago when I was still an undergrad and he a law student. But to the matter at hand, I think it's best to go from specific to broad. The best place to begin are the Federal statutes. Specifically, 18 U.S.C. Sec. 2332(b) defines terrorism in sub (g)(5) as:

the term “Federal crime of terrorism” means an offense that—

(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and

(B) is a violation of—

The statute then lists all the different crimes can potentially qualify as a terroist act. Suffice it to say, derailing a train qualifies, since it constitutes, "wrecking trains" within 18 U.S.C. 1992. The key of course is the "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct." Like many crimes, including the topic of my original discussion, murder, intent plays the key role in defining terrorism. Did you intend to kill all pedestrians on the road when you got behind the wheel of a car after downing a bottle of Jameson? You get the idea. Of course Phil wouldn't ask me a question that had such easy answers.

The problem with using intent with respect to terrorism is the very distinct possibility of never determining anyone's intent. And this is what his e-mail (I think) hints at by describing the initial reaction when people did not know what caused the derailment. What if the car had just been left on the tracks? The definition of terrorism mentioned above is for the purposes of CRIMINAL PROCEEDINGS. What I mean by that is that the definition only matters once someone is arrested and charged with a crime. If all that we had was a train wreck with 11 dead, would it matter all that much what the purpose of the actor was? Would we (the public at large, the government officials, the media, etc.) de facto consider it domestic (or international) terrorism? The answer is yes. I'm not in LA so I was not privy to initial news reports, but judging from Phil's account, it sounds like more than one person jumped the gun to assume it might be an act of terror. If we continue with my hypo of the abandoned car, I think the lack of suspects or evidence to the contrary would only fuel this suspicion. I imagine pundits saying things like, "This is clearly the work of a well-financed, well-trained organization that knew exactly how to hit us and destroy all the evidence." Of course this ignores the scores of other possible explanations as well as Occam's Razor.

The underlying trouble I have is with a crime of terrorism existing in and of itself. Currently no such thing exists in Federal law, but the rhetoric in the last 10 years at least has seen a dramatic shift. When I was quite young, I remember the America's Most Wanted story on the Unabomber. The discussion was much more focused on the crime (e.g. how the bombs were made and how they were shipped) and the harm it caused, rather than the political agenda behind it. Does anyone really remember what his beef was and why he targetted his victims? (in a specific sense?) Compare that to anything post-9/11. Attacks against our military in a country we invaded are called acts of terror. This is essentially a long way of saying that we are gradually perceiving terrorism as an act in and of itself independent of the underlying crime. In a sense, if the Metrolink guy really did have an international anti-american imperialism agenda, we'd almost think the motivation behind the derailment more of a risk than the actual derailment. (Typical thoughts would be: "Well FORTUNATELY, only 11 people died, but this could just be a preview of things to come. There's no telling what kind of WMD's they may be trying to get..." (dum dum dum).)

Therefore, I ask, should someone receive X punishment for terrorism (however defined) INDEPENDENT of the means and the resulting harms? E.g. Derail a train and kill eleven? Death penalty. Point a laser at a plane and have ties to Al Qaeda? Death penalty. If we take a criminal law approach, I can't see any justification. But it's rare for a legislative body to alter criminal definitions based on the philosophical discussions of punishment. More accurately this is a political question and I cannot tell you how it will be settled.

What I can tell you is that motivation is the key factor. Phil asked me to compare this to the LAX shooting at the El Al counter. It is worth it to look at the contrasting reactions from the U.S. authorities (including Mayor Hahn) and the Israelis. And that I think is the key. The shooter did not have any intent of harming the U.S. government and no organizational ties were found. Rather it appears he had a personal hatred of Israel and Jews. Naturally, to the Israelis this is a classic case of terrorism. To us, it's another part of the tale of the Hatfields and McCoys. Are certain acts (shooting at a public place, especially airports) automatically worthy of being classified as terrorism regardless of intent? What about mob hits carried out to send a message to a rival mob? Cf abortion clinic bombings.

Carter asked our class to work in groups to draft definitions of terrorism as if we were the UN or Congress or something along those lines. I remember that we didn't really get anywhere. I'm not so sure that Iv'e done any better now. I just know that it will be quite ironic if the Metrolink guy is placed on suicide watch once sentenced to death row in San Quentin.