DETECTING COVERT LEGAL KILLING TO STOP A NEW APPROACH TO TERRORIST INTENTION.

• Author: Pearce, Joshua M.

1. INTRODUCTION AND THE LEGAL IMPLICATIONS OF INTENTION

   Intention is often subjective and challenging to assign. Yet, intention is what determines if an act of killing is terrorist in nature or not. Intention is also critical for assigning legal culpability as well as punishment in our legal system. (1) To illustrate the importance of intention, consider the following thought experiments surrounding this fact pattern: Achmed drives a truck that jumps over a curb and kills Bill and Carol, pedestrians on a sidewalk adjacent to a busy road.

   In thought experiment one, Achmed is driving the speed limit, swerves to avoid a child chasing a ball in to the road, loses control, hops the curb, and accidentally kills Bill and Carol (e.g., he had no intention to kill anyone and was actually attempting to save the life of the child). This is determined to be an unfortunate accident by police after interviewing several witnesses, including the child's parents who witnessed the entire event. Achmed is neither morally nor legally responsible for the deaths.

   In thought experiment two, Achmed is drunk driving, misjudges the curve of the road, drives onto the sidewalk, and accidentally kills Bill and Carol. Again, he had no intention to kill them. However, in case two, Achmed is charged with operating while intoxicated (OWI). (2) In another version of thought experiment two, had Achmed been sober and just driving in a grossly negligent manner that resulted in killing Bill and Carol (again unintentionally), he would be charged with either manslaughter, a felony with up to fifteen years in prison and/or a maximum USD7,500 in fines, or second-degree murder, also a felony with a potential sentence of life in prison. (3)

   In thought experiment three, Achmed is married to Carol and he has caught her cheating with Bill. In a rage, he devises a plan to run them down with his truck, posts it on Facebook and then kills them intentionally. Because of Achmed's intention to kill, this is first-degree murder. (4) In Michigan, Achmed would be sentenced to life imprisonment without the possibility of parole. (5)

   In thought experiment four, Achmed has been radicalized by viewing videos posted on the Internet by the Islamic State whose goal is to cripple the United States with terrorist acts. (6) The propaganda encourages him to kill as many Americans as possible by any means necessary. After watching news reports of terrorists using trucks and killing many people by driving them into crowds in Europe (7) , Achmed decided to try it himself. This time the killing of Bill and Carol is not only first-degree murder, but also a terrorist act because of Achmed's intention. Similar to United States v. Saipov (8) in which the defendant plowed a pickup truck down a bike path along the Hudson River killing eight people, Achmed could expect the United States government to seek the death penalty.

   These first four cases are straight forward, well documented, and understood in United States law. Thought experiment four represents how the United States views terrorism. Specifically, terrorist acts are defined as "violent acts or acts dangerous to human life . . . (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping." (9)

   However, consider two more thought experiments where the person responsible for the deaths of Bill and Carol is no longer part of the scene. In these thought experiments, Zeb is a materials engineer working at a large automobile company that made Achmed's truck. Zeb filed a technical report on the corrosion of a pin. This report included details on the lifetime of the pin used in the braking system of the truck. In these thought experiments, this critical pin snaps because of corrosion on Achmed's truck, his brakes fail, and he accidentally hops a curb killing Bill and Carol.

   In thought experiment five, Zeb is simply an incompetent engineer. He ran his tests on a large series of pins using expected road conditions for Arkansas and determined the pin would last for twenty years. However, the salt used on the roads in northern states accelerated the corrosion, and pins began to fail after only five years. The investigation into Bill and Carol's deaths found that one of the pins failed in Achmed's truck. There was no intention to kill. All similar trucks are immediately recalled, and Zeb is not charged with any crime.

   Finally, in thought experiment six, what if Zeb did it on purpose? Consider if Zeb was radicalized by viewing the same videos that Achmed viewed in thought experiment four. These videos posted on the Internet by the Islamic State successfully encouraged him to kill as many Americans as possible. Zeb realized plowing trucks into pedestrians would only result in a handful of deaths, but if he could cause the trucks his company manufactures to fail randomly, he might kill hundreds or even thousands of Americans. He purposefully chooses to use Arkansas' conditions to overestimate the break pin's lifetime. Zeb's intention is to kill Americans and not be caught. Currently, Zeb's choice of road conditions for testing a pin is legal. Yet, Zeb's intention is clearly that of a terrorist. The current United States legal system does not address such acts of terrorism well; in fact, the United States Federal Bureau of Investigation's (FBI) strict definition of terrorism does not even consider these acts to be terrorist acts. (10)

   This study argues that the United States should expand the definition of terrorism to include these covert legal killings (CLK). (11) First, in Part II, the literature reviewed covers terrorism and the concept of terrorist intentions. (12) Part III of this study explores the challenges of uncovering CLK (13) and develops new analytical methods in Part IV for quantifying the effectiveness of CLK strategies that terrorists could use. (14) It also outlines defensive measures to protect against CLKs. Specifically, a methodology for quantifying the return for target death per million dollars (DPM) invested is presented in order to begin to gauge which types of CLK strategies those with terrorist intentions are most likely to use first. (15) The study also provides examples for potential approaches to CLK in Part V. (16) Finally, Part VI discusses the results of a case study, and the political implications are outlined for future work to help establish defensive measures to protect against covert legal killing. (17) Finally, Section VII of this paper draws conclusions about the new methods for quantifying the effectiveness and outlines defensive measures to protect against CLK. (18)

2. BACKGROUND ON TERRORISM

   Most counter-terrorism efforts and the media's attention focus on overt terrorism. (19) Overt terrorism falls into the first two types of terrorist intentions listed under 18 U.S.C. [section] 2331, (20) which is used by the FBI to define terrorism. (21) Specifically, overt terrorist acts involve violent acts or acts dangerous to human life that (i) intimidate or coerce a civilian population, or (ii) influence the policy of a government by intimidation or coercion. (22) In general, these acts are intended primarily to terrorize the citizens of the target nation and also cause loss of life of the targeted nation as a secondary goal. (23) Some terrorist organizations employ relatively sophisticated public relations systems to support their overt terrorism, (24) such as recent Islamic State of Iraq and Syria (ISIS) and Islamic State of Iraq and the Levant (ISIL) media releases. (25) There is a third terrorist intention: (iii) to affect government conduct by mass destruction, assassination, or kidnapping. (26) This class of terrorist acts has a primary goal of causing damage, such as the attempted assassination of the Pope, (27) and a secondary goal of invoking terror to change government policy. (28) In summary, overt terrorism is accomplished publicly to generally obtain a political goal. However, sometimes overt terrorism has the more simplistic goal of creating damage. Overt terrorism, whether using violence to influence politics or as an end to itself, is already illegal.

   A new terrorist intention has recently become more common with the rise of extremist groups whose stated goals are "destroying the Western civilization from within." (29) Thus, this study focuses on a fourth possible terrorist intention: mass killing of a targeted group or nation by any means. Simple exposure could compromise the effectiveness of this type of terrorism, but mass media attention would directly counter terrorist goals. Thus, terrorists motivated by the fourth intention are not overt. For example, if terrorists were slowly poisoning water, food, or medical supplies (30) sequentially in one city after another, claiming responsibility and sharing the methods that they used would make poisoning the next city more difficult. Thus, this type of terrorism is called covert terrorism. Gary C. Gambill, the editor of Middle East Intelligence Bulletin and a specialist on terrorist organizations, categorizes two types of covert terrorism: (1) anonymous terrorism, where the responsibility of the act remains unclaimed completely; and (2) surrogate terrorism, where responsibility is claimed by a surrogate. (31) In both types of conventional covert terrorism, demands are made for policy changes within the target government. (32) In summary, conventional covert terrorists...