Response to Terrorism Unjustified by Vicente Medina.
That being said, when we get into the details of our respective positions we find some interesting disagreements between us that are worth exploring. Medina would likely categorize my opposition to terrorism as "soft core" in contrast to his "hard core" objection. For him, terrorism is absolutely indefensible in all circumstances from the perspective of ultimate moral principle. For me, it is difficult to justify such a categorical, fundamental condemnation of terrorism. While I think the vast majority of terrorism is egregiously immoral, I can nevertheless imagine cases of reasonable terrorism.
Still, I think terrorism as Medina understands it--the deliberate killing or maiming of noncombatants--ought to remain categorically and absolutely prohibited in our laws and professional military ethics. So, while I disagree with Medina's assessment of terrorism at the level of ultimate morality, I do not think we should qualify our rejection of it at the practical level. My position regarding terrorism is therefore similar to a common view of torture: It might be the case that there are possible circumstances where torture is understandable--so-called "ticking bomb" cases--but nevertheless our laws and professional codes should absolutely prohibit it. It seems to me that the deliberate targeting of noncombatants in war should be thought of similarly. (2)
I want to discuss two reasons why I think it is more difficult than Medina appreciates to categorically and fundamentally condemn terrorism. The first reason is that the concept of terrorism is too vague and laden with normative content to be categorically rejected in a non-question begging way. The second reason is that, even if we accept Medina's definition of terrorism, it is unclear that we can categorically distinguish terrorism from conventional wartime violence. In particular, Medina's appeal to impeccable innocence to distinguish the victims of terrorism from the victims of non-terrorist violence is unpersuasive as it fails to appreciate the extent to which typical victims of conventional war, i.e. combatants, are innocent.
1. The Concept of Terrorism
To his credit, Medina spends considerable time in Chapters 2, 3, and 4 examining some of the various definitions of "terrorism" that are in the literature and defending his preferred definition. As Medina notes, this extended discussion of the meaning of the term is necessary because the concept is so contested. Indeed, Medina's method in his book follows the pattern of philosophical treatments of terrorism. In order to come to clear conclusions about it, philosophers and legal scholars usually spend considerable energy trying to nail down a definition of it. Most philosophical essays and books on terrorism have long sections or chapters called "Definitional Issues" or something of the sort.
We should note that this is a distinctive feature of the literature on terrorism. On other controversial ethical or legal matters that have been the subject of the attention of many commentators, we do not see such extended debate about what exactly is under discussion. The literature on abortion or the death penalty, say, is not pervaded by deep and prolonged debate about the meaning of "abortion" or "death penalty." Surely, there are some definitional debates to be had and there are fuzzy cases that reasonable people can disagree about how to label. We debate whether the use of the morning after pill is an act of abortion, for instance. We could even debate whether life sentences in cruel and inhumane conditions could qualify as death sentences. But these sorts of disputes are much more restricted than they are in the case of the literature on terrorism. There are not, as Medina notes of terrorism, 109 different definitions of abortion in the literature. With "terrorism" fuzzy cases abound.
This feature of "terrorism" poses a problem for projects like Medina's that attempt to draw categorical conclusions about the morality of terrorism. Because of the contestable nature of the concept, all attempts to clearly define the term and draw conclusions about it will be vulnerable to the charge that the word has been "stolen." That is to say, critics can always readily assail a narrow definition of "terrorism" as false and demand that a clear treatment of terrorism needs to include other understandings. As a result, the different commentators on terrorism talk about different things and end up talking past each other.
It seems to me that this characterizes the literature on terrorism. Due to the extraordinary contestability of "terrorism," each author or group of authors defend a particular view of the morality of terrorism but only on condition of a narrow definition of "terrorism." Each scholar's conclusion needs to be underscored as merely a conditional of the form "If 'terrorism' is X, then it is morally or legally Y." In discussions of other concepts, such conditional conclusions are self-evident and of little consequence. However, in the case of terrorism, the conditional nature of our conclusions creates a problem. Given there is no agreement about X, there is plenty of room to deny the antecedent of the conclusion. As a result, the literature on terrorism is really a balkanized set of literatures about a wide range of distinct phenomena that masquerades as a focused discussion of a singular topic.
This problem is evident in Medina's book. In his attack on terrorism in Chapter 3, Medina defines terrorism as "the deliberate or reckless harming of noncombatants." However, when he turns to examining the views of apologists of terrorism in Chapter 4, he notes that they typically have a very different understanding of "terrorism." For this reason, it seems that we may not be looking at a disagreement between Medina and the apologists for terrorism. Perhaps Medina and the apologists are just talking past each other. The attempt to include these disparate discussions under the singular topic of terrorism helps paper over this problem.
Furthermore, the term "terrorism" seems to be more laden with normative meaning than other subjects of sustained philosophical and legal analysis. To call someone a "terrorist" or some act "terrorism" is a priori to say something harshly critical. The terms "abortion" or "death penalty" do not carry this level of normative baggage. This is not to say that the terms "abortion" or "death penalty" have no normative content whatsoever. These are not strictly neutral terms. In ordinary usage, abortions and capital punishments are, by nature, very bad, grave, solemn, and so forth. Still, there is an important difference between these concepts and terrorism. The quality of normative content in the concept of terrorism is different. In ordinary usage, terrorism is by nature not merely bad; it is savage, barbaric, criminal, and deviant. Indeed, the term is often used as an insult.
This feature of "terrorism" creates two problems for projects like Medina's. First, it makes it hard to employ the term in a non-question begging way. If "terrorism" is implicitly barbaric, disgusting, criminal, etc., then to use it to refer to someone or something will beg the normative or legal question. Simply to apply the term to something is to condemn it. As a result, those who wish to defend what is being referred to as "terrorism" will simply reject the label. In practice, you do not readily find people defending things that they refer to as terrorism. What you find are people defending things that others call terrorism. Instead of helping us pick out a subject for subsequent ethical or legal analysis, "terrorism" ends up obscuring important ethical disagreements. In practice, the term should really only be applied following an ethical or legal analysis of the subject in question, not before.
Second, because the normative content of the term is bound up with ongoing political movements and events, use of the term is highly divisive. We must be mindful that the occasion for the burgeoning literature on the ethics of terrorism is a growing awareness of particular groups and movements called "terrorists" and the heightened experience of being threatened by them. At the same time, there are a number of governments and administrations that have waged a "war on terrorism" or have embraced any of a variety of "counterterrorist" programs. As political beings situated in the world we are implicated in these events in a variety of ways. We are threatened by the terrorism of some groups and perhaps protected by the terrorism of others. We are perhaps sympathetic to the goals (if not the means) of some groups who engage in terrorism and reject the reduction of them to mere "terrorists" whereas other groups we see as aptly reduced to "terrorists." We support some governments and their campaigns against terrorism and we reject others. For these reasons, we usually come to the philosophical discussion of terrorism as partisans in a specific historically-situated political moment. Our goal in these discussions of terrorism is often to say something that contributes to an understanding of our current political situation as we see it. However, we will find conclusions about terrorism more or less intuitive depending on our background understandings and political commitments. We will want some actors and causes to be confirmed as terrorists and not others.
In this way, it is extremely difficult to carry out an objective assessment of terrorism. When philosophers such as Medina offer normatively neutral definitions of terrorism and try to objectively assess the ethics or law of it, their debates over definitions can become proxies for other, more important, debates about particular wars, movements, or agendas. To treat the term as if it does not have normative content or as if it can be abstracted from our particular political moment allows us to mask political agendas as debates about the meaning of "terrorism." In this sense, there is a politics of "terrorism."
I do not mean to imply that it is impossible for philosophers to objectively assess the ethics of terrorism. I think philosophers could create neutral definitions of the term and use them consistently, embracing their conclusions even if they unsettle their prior political commitments. Philosophers often do this with other important concepts such as "freedom" and "equality." We take pride in our ability to analyze these concepts and apply our conclusions consistently even when we dislike where they take us. Still, "terrorism" is different than these other concepts in that it is so laden with normative content and bound up in specific political agendas. In attempting to objectively assess terrorism the distance philosophers create between their discussions of terrorism and political reality call into question the relevance of their conclusions in a way their assessments of other concepts do not. If the point of investigating terrorism was to draw conclusions about our particular political moment, then isolating the concept from its meaning in the discourse that is driving that moment will undermine the practical significance of the investigation. Moreover, the objective assessments philosophers might make are always highly vulnerable to misunderstanding or manipulation when we attempt to bring these assessments to bear on the relevant politics.
There is also evidence that Medina's debate with the apologists of terrorism falls victim to confusion resulting from the unacknowledged normative content of "terrorism." I have already noted that the so-called apologists of terrorism offer a different definition of "terrorism" than does Medina. It is also noteworthy that the apologists define "terrorism" as something much tamer than does Medina. As Medina describes it, the apologist's definition of terrorism is,
The use of political violence by individuals or groups, provided they are not engaged in an interstate armed conflict, who deliberately inflict substantive harm or threaten to do so against their alleged enemies, aiming at influencing a domestic or international audience. (3)
It is striking how different the prospects of defending such activity are compared to Medina's preferred understanding of terrorism. Ethically speaking, it seems much easier to imagine reasonable cases of the apologist's terrorism than reasonable cases of Medina's terrorism. On the apologist's definition, terrorism is hard to distinguish from any political violence by nonstate actors. But surely a nonstate group that respects noncombatant immunity while inflicting substantive harm against their enemies aiming at influencing a domestic or international audience is in principle easier to defend than a nonstate group that does not respect noncombatant immunity. In fact, I see nothing in Medina's discussion to indicate that he is opposed to what the apologist's define as terrorism categorically. Moreover, Medina gives no reason to conclude that those described as apologists for terrorism support what Medina defines as terrorism. We can expect that at least some of the so-called apologists for terrorism are opposed to what Medina describes as terrorism. Yet Medina nevertheless describes these commentators as his opponents in a substantive moral disagreement.
The appearance of such a substantive disagreement is made possible by the implicit normative baggage in the concept of terrorism. What appears as a substantive disagreement is largely the mere fact that one party is unwilling to defend anything called terrorism while the other party is willing to defend some things called terrorism. Even though they are taking about different things, the normative content of the term suggests a moral dispute. This seems to me to be an example of confusion that can arise when philosophers attempt to objectively evaluate concepts that are so normatively and politically charged in common usage. The divisive usage creates the impression of clear fault lines around a distinct phenomenon while the philosophical examination subdivides the term into distinct types of activity with various ethically relevant qualities. In the philosophical realm, one could be against one definition of terrorism and see another as potentially permissible. But common usage intrudes on such nuance and demands that we take a side in the ongoing political debate. In this way, we can end up envisioning disagreement where there is none.
For these reasons, I am skeptical of categorical condemnations of terrorism. Again, I share with Medina a generally anti-terrorist outlook. Whatever terrorism is it is extremely difficult to defend. My concern though is that the sort of "hard core" opposition to terrorism that Medina favors cannot be justified because the concept is so indeterminate and because it is a priori morally problematic. To rule out the possibility of justified terrorism presupposes a clearer definition of terrorism than our usage permits and, in order to be non-question begging, requires stripping the concept of its normative content.
I wonder if for the sake of clear-eyed ethical and legal analysis we should cease conducting philosophical scholarship on terrorism altogether. Why not just focus on the family of activities most associate with terrorism instead, such as targeting noncombatants in war, deliberately creating fear in a civilian population for political ends, or political violence by non-state actors? These topics can be ethically and legally evaluated without the difficulties stemming from the meaning of "terrorism." Surely we cannot do away with the term in our social and political lives, but it seems that facing up to the reality of how the term works in our social and political lives calls into question the value of attempts to meaningfully assess terrorism objectively. Terrorism just might not be the sort of thing that can be fruitfully studied by moral philosophers. (4)
2. Innocence and Noncombatant Immunity
Medina criticizes terrorism on the grounds that it violates the duty of nonmaleficence, or the duty to refrain from "intentionally bringing about undeserved harm or significant risk of it against the impeccably innocent." (5) The basis of this duty lies in a conception of the human person as possessing, in virtue of being a human person, an inherent dignity and an associated set of rights, including the rights to life and liberty. (6) People who have not forfeited these rights are owed respect by others. In particular, such people cannot be used as a means for ends that are not their own. (7) Terrorists violate the duty of nonmaleficence. They deliberately or recklessly harm innocent noncombatants thereby violating their victim's rights by using them as a means to the terrorist's political ends. (8)
Those who are innocent are those who have done nothing to forfeit their rights to not be harmed. There are a number of senses in which one can be innocent according to Medina. One can be innocent in a Mens Rea sense, in a Good Samaritan sense, in a blameless sense, in a harmless sense, or in a guiltless sense. (9) If one fails to be innocent in these senses, one is no longer impeccably innocent and can, in certain circumstances, lose one's right to not be harmed.
According to Medina, combatants always fail to be impeccably innocent. Combatants pose a substantive threat to others by deliberately harming or threatening to harm others. (10) Combatants are not innocent in the sense that they are not harmless. They are engaged in the business of war, as Walzer puts it, and are therefore not innocent.
Some combatants could also be non-innocent in other senses as well. For instance, some combatants will engage in unjust wars voluntarily and with full knowledge. Combatants like this will be guilty and/or blameworthy in addition to be being harmful. But many combatants will not be guilty or blameworthy; they will be coerced into fighting or misled about the nature of the war. Medina calls such combatants innocent or involuntary threats. (11) While they may be innocent of blame or guilt, they are not innocent of posing harm or a threat of harm to others. Combatants can therefore be divided into culpable, innocent, or involuntary threats to others. (12) But all combatants, in virtue of posing a threat to others, are not impeccably innocent and have forfeited their right to not be harmed. They may, under certain conditions, be deliberately attacked in war by their opponents.
Some noncombatants might be non-innocent who have contributed in significant ways to a community's war. Still most noncombatants will be innocent in all senses. Terrorism is wrong because it involves the deliberate or reckless harming of innocent noncombatants. Terrorism thus uses persons who have done nothing to forfeit their rights as mere means to the terrorist's ends.
I am not convinced that innocence separates noncombatants from combatants so neatly. I will argue that, according to domestic military law and conventional military ethics, typical combatants are innocent in a stronger sense than Medina recognizes. For this reason, I doubt that he has shown that terrorism is categorically different from conventional acts of war, especially deliberate attacks on combatants.
While Medina acknowledges that some combatants may be guilty or blameworthy, he claims that even if they are not, they are always harmful or threatening harm. To repeat, the two types of objective threats that are neither guilty nor blameworthy are innocent threats and involuntary threats. Innocent threats are those who are unaware of their threatening behavior. Involuntary threats are those who are coerced into engaging in threatening behavior.
This leaves out an important type of guiltless or blameless threat. It is possible for a person to be ethically bound to engage in threatening behavior. Such a person could pose a guiltless or blameless threat to others but is different from an innocent or involuntary threat. Such a person, call her a dutiful threat, is not necessarily physically coerced and could be fully cognizant of the nature of her activity. In any case, the dutiful threat will be doing nothing wrong. The dutiful threat is innocent in a stronger sense than the innocent or involuntary threat. In posing a threat to others they are doing what they are obligated to do. They have done nothing for which they need to be excused. As a result of their duty to threaten, dutiful threats would render themselves non-innocent in the sense of being guilty or blameworthy if they were to deliberately not threaten the relevant others. It is hard for me to see how this person could forfeit her right to not be harmed by doing her duty.
To illustrate, consider a hypothetical situation where three gladiators battle each other for sport but each for different reasons. The first gladiator participates because he has been coerced by the authorities who are threatening harm to his loved ones if he does not fight. The second gladiator participates because he has been manipulated by the authorities to falsely believe the other two gladiators pose a threat to him and his community, and the only way of thwarting the threat is by defeating them in staged battle. The third gladiator, however, participates because he is bound legally and professionally to engage in battle when his authorities tell him to. While each of these gladiators threaten others with harm, they are each innocent in some sense. Following Medina, the first gladiator is an involuntary threat and the second is an innocent threat. The third, however, is what I am calling a dutiful threat. While I am deeply skeptical of the possibility of justifying the obligations we are imagining the third gladiator to have, if we suppose for the sake of argument that he has them, he seems to be engaging in threatening behavior more innocently than the other two gladiators. The first two gladiators are doing wrong but are excused. The third gladiator is simply doing what he ought to do. He cannot be criticized for threatening others while the other two can. He would be non-innocent if he deliberately avoided the battle. The other two, however, would be thoroughly innocent if they did so.
In point of fact, traditional just war thinking as well as current military law puts soldiers in a moral and legal position where they will typically be dutiful threats should they be called upon to engage in combat. According to conventional thinking, unless it is obvious that a war is unjust a soldier is obligated to participate in war upon the command of her political authority. In this sense, soldiers are understood as the instruments of their political community. They may be used upon command for the sake of others. Thus, in most cases, when they go to war soldiers are only doing what they are obligated to do. To cite just one example, Francisco Vitoria argues that soldiers ought not to serve in wars that are patently unjust. (13) But when they are unsure about the justice of the war soldiers are "required to carry out the sentence of [their] superior." (14) If being a material threat to others is a soldier's duty, it is puzzling to hold that, in virtue of threatening others, they forfeit their right to not be harmed. Morally speaking, they might have had no choice but to threaten others. The problem is that if a person is obligated to engage in threatening behavior and by engaging in threatening behavior one can, in turn, permissibly be attacked by others, then it seems that such persons do not have a right to not be harmed in the first place. If dutiful threats are legitimate targets, then dutiful threats are agents who have no autonomy over the forfeiture of their rights. They can find themselves in situations where morality requires that they give up their right not to be harmed whether they want to or not. The permission to kill dutiful threats seems tantamount to the instrumentalization of the person who poses the dutiful threat.
We should also note another respect in which soldier's lives are instrumentalized. In international law and conventional military ethics there are very few constraints on what can be done to combatants during war. Of course, there are limits on the sorts of weapons that can be used against them and there are elaborate constraints on the treatment of wounded or captured combatants. Still, combatants that are not wounded, captured, or attempting to surrender, may generally be attacked at will. It does not matter if they are fighting for a just or unjust cause, if they were conscripted or volunteered, or if there is any military utility in attacking them. As long as one is a combatant during war, one is treated as a legitimate target of attack. As Gabriella Blum concludes, "The striking feature of the mainstream literature is its general acceptance (albeit at times with some moral discomfort) of the near-absolute license to kill all combatants and of the law's view of combatants as nothing more than instruments of war." (15)
Furthermore, when we explore the origins of the idea that soldiers are obligated to fight in war upon command and are legitimate targets of attack in war we find further tensions with theories of noncombatant immunity like Medina's. When traditional just war theorists explain how soldiers come to be instruments of violence for their political communities, they appeal to a view that permits the use of innocent individuals for the sake of the political community. To continue with the example of Vitoria, he justifies the right of the civil power to command subjects in war on the grounds that individuals are to communities what limbs are to bodies: they may be used and sacrificed for the sake of the whole. As he says, "there is no reason why the commonwealth should not have the same power to compel and coerce its members as if they were its limbs for the utility and safety of the common good." (16) This seems like a denial of the duty of nonmaleficence as Medina understands it. For Vitoria and the just war tradition, soldiers may be used for the sake of ends that are not their own.
These extraordinary burdens of military service are underscored by the nature of the division between the military and civil society in most liberal states. Military servicemembers have a different political status than do civilians. Servicemembers are denied the full host of constitutional rights that civilians enjoy, including the right to self-preservation. To join the military is to literally move from first to second-class citizenship. As the United States Supreme Court describes it, "The military constitutes a specialized community governed by a separate discipline from that of civilian society." (17) This "separate discipline" entails the reduction of the servicemember to an instrument of national security. Indeed, the US Armed Forces enlistment/reenlistment contract describes enlistment as "more than an employment contract." (18) Enlistment, unlike employment, enacts a change in the enlistee's political standing. Military servicemembers can be legally obligated to engage in life-threatening action among other things. This treatment of members of the military has long been the source of objections to standing armies precisely because it is inconsistent with respect for the rights of persons. Kant, for instance, held that "the hiring of men to kill or to be killed seems to mean using them as mere machines and instruments in the hands of someone else (the state), which cannot easily be reconciled with the rights of man in one's own person." (19)
It would be unfair to single out Medina for failing to face up to this problem. Medina is operating within the parameters of traditional thinking about noncombatant immunity. Alongside the above commitment to the instrumentalization of soldiers, conventional just war thinking has appealed to innocence to ground the immunity of noncombatants. If there is a problem here for Medina, there is also a problem for Suarez, Vitoria, Grotius, Vattel, and Walzer. I happen to think all these figures have a serious problem reconciling their theories of discrimination in war with their commitments to the subordination of soldiers. (20) I wonder if Medina can explain how a soldier's obligation to serve in war upon command can be reconciled with the claim that soldiers forfeit their rights not to be harmed by threatening others. It would seem that we face a dilemma here. On one hand, we can consistently embrace the duty of nonmaleficence to all, including combatants. This would appear to require fully incorporating military servicemembers into civil society and adding restrictions to the treatment of combatants in war. However, this would seem to imperil the ability of communities to provide for their security. On the other hand, we can accept that persons can, at least in some cases, be used in war for collective ends. However, this risks undermining important restrictions on the conduct of war, especially noncombatant immunity.
To reiterate, these are some reasons I have for skepticism about Medina's categorical, fundamental condemnation of terrorism. I am not suggesting that terrorism is generally defensible or that terrorism is not a terrible global problem. I am also not suggesting that we should reform our laws or professional codes to make harming noncombatants more permissible. Noncombatant immunity ought to remain prohibited at the practical level. Still, I am inclined to a soft core rejection of terrorism because I think hard core criticisms are on shaky footing. It is unclear what terrorism refers to and whether it can be used in a non-question begging way; and, even if we accept Medina's definition of terrorism, I am not sure that noncombatants are significantly more innocent than typical combatants. (21)
United States Military Academy
(1) Vicente Medina, Terrorism Unjustified (Lanham, Maryland: Rowman and Littlefield, 2015).
(2) To be clear, Medina would reject such a view of torture as well as terrorism. For him, torture, like terrorism, is unjust in all cases.
(3) Medina, Terrorism Unjustified, p. 94.
(4) In "Doing Away with Harm," Philosophy and Phenomenological Research 85, no. 2 (September 2012), pp. 390-412, Ben Bradley proposes something similar with the concept of harm. I owe this reference to an audience member at the symposium on Terrorism Unjustified held at Felician College, April 21, 2018.
(5) Medina, Terrorism Unjustified, p. 41.
(6) Ibid., p. 42.
(7) Ibid., pp. 67-8.
(8) Ibid., pp. 77-8.
(9) Ibid., p. 79.
(10) Ibid., p. 90.
(11) Ibid., pp. 71-4.
(12) Ibid., p. 91.
(13) Francisco Vitoria, Vitoria: Political Writings, edited by A. Pagden and J. Lawrance (New York: Cambridge University Press, 1991), pp. 307-8.
(14) Ibid., p. 312.
(15) "The Dispensable Lives of Soldiers," Journal of Legal Analysis 2, no. 1 (Spring 2010), p. 72.
(16) Vitoria, Vitoria: Political Writings, p. 11.
(17) United States Supreme Court, Orloff v. Willoughby, 345 U.S. 83, no. 83 (1953), 94. The best discussion of the change in civil standing brought about through enlistment that I know of is Michael Sullivan, Earned Citizenship (New York: Oxford University Press, 2019), Ch. 4.
(18) U.S. Department of Defense, 'Enlistment/Reenlistment Document Armed Forces of the United States', DD Form 4/1, October 2007, at 2, http://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd0108.pdf (accessed April 21, 2018).
(19) "Perpetual Peace: A Philosophical Sketch," in Kant: Political Writings, ed. H. S. Reiss (New York: Cambridge University Press, 1991), p. 96.
(20) For elaboration, see Graham Parsons, "The Dualism of Modern Just War Theory," Philosophia 45, no. 2 (June 2017), pp. 751-71.
(21) The views expressed in this article are the author's and do not represent the views of the United States Military Academy, the United States Army, or the Department of Defense
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|Date:||Jun 22, 2019|
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