But Preventing Terrorism Calls for Tougher Tactics

by Ruth Wedgwood

Washington Post, June 3, 2001

Cartoonist Bill Mauldin was celebrated for his World War II sketches of GIs slogging across Europe, rifles and cigarettes in hand, defeating the Nazis one rugged day at a time. But Mauldin never sketched a lawyer in fatigues, and for good reason -- lawyers can't win wars.

That's worth keeping in mind even as we hail the criminal convictions last week of four conspirators in the 1998 bombings of U.S. embassies in Kenya and Tanzania. After a grueling four-month jury trial and a slam-dunk on every charge in the 302-count indictment against the henchmen of Saudi millionaire Osama bin Laden, U.S. attorney Mary Jo White called the outcome "a triumph for world justice and for world unity in combating international terrorism." Barry Mawn, assistant director in charge of the FBI's New York office, proclaimed, "The rule of law is more powerful than any terrorist bomb."

Such celebration is appropriate, but the rhetoric is worrisome. While the American legal system is an important tool, it's not powerful enough to defeat terrorists or prevent another bombing.

As a former federal prosecutor who has tried cases of spying, domestic terrorism and military smuggling, I can testify that this kind of trial is a Herculean labor.

White deserves our gratitude -- as do U.S. District Judge Leonard Sand, for a smartly run trial, and FBI Director Louis Freeh, for the unrelenting intercontinental investigation that made it possible. Nonetheless, it is important not to let ourselves be misled by what prosecutions can accomplish.

America's criminal justice system is designed to operate in an atmosphere of peace and underlying social stability, while committed terrorists see their campaigns as acts of war.

The so-called fatwa, or Islamic edict, that bin Laden issued in 1998 targeting all American nationals was the equivalent of a declaration of war. In fact, it was worse, because even in wartime, honorable nations spare civilians. Bin Laden does not -- he is an equal-opportunity killer. We cannot effectively counter him if we limit ourselves to the tools of law enforcement. Americans have a deep faith in the power of the law. But the water's edge should mark the boundary of our legal romanticism.

Certainly, the trial served some important purposes. It methodically demonstrated the exiled Saudi's culpability for the embassy bombings. It is one thing to hear the U.S. government proclaim that bin Laden's al Qaeda network organized the attacks that killed 224 people and injured 4,600 others. It is another to see an exhaustive presentation of proof at trial, with 92 government witnesses and some 1,300 exhibits. The lengthy due process of such a trial also undermines the propagandists who deride the moral stature of America: Few Great Satans take such care to evaluate evidence and protect the rights of defendants.

Rather like a truth commission, the trial also made plain the human cost of terrorist schemes -- these were not effigies of U.S. power who were hurt, but men, women and children with stories that, as one defense lawyer conceded, could "make a stone weep." (Nor were most of them even Americans; the scatter pattern of bin Laden's bombs did not take nationality into account. Alongside the American dead and wounded, most of the victims were Africans and a number were Muslim.)

Federal officials last week affirmed their determination to hold more trials -- to pursue and convict 18 more defendants indicted in the conspiracy. But every prosecution has considerable drawbacks.

First, there is the cost to our intelligence capabilities. The due process culture of a courtroom tilts toward full disclosure of all matters in the government's files. The Classified Information Procedures Act, which I helped draft 20 years ago, put some limits on the public disclosure of sources, methods and classified data in intelligence-related trials. But defendants still get to see a great deal. This means that an ongoing enterprise like bin Laden's can use the courtroom proceedings to get smarter about how to avoid surveillance and how to control the weak links in the organization.

In the same vein, it is hard to persuade informants to cooperate when they know their identities might be exposed in a federal trial. And it is risky to use the best surveillance technology when the rules of disclosure mean it may have to be shared with a defendant and his allies still in the field. An example: In the early 1980s, when I was working with the FBI to catch a Bulgarian agent trying to obtain nuclear secrets, we planned to use cutting-edge listening devices to tape a crucial meeting -- but realized we eventually would have to disclose their workings to the defendant, with Soviet bloc observers sitting in the audience. We deliberately dumbed down the surveillance.

Betting on the criminal justice system as the main source of protection also supposes that committedterrorists will be deterred by the prospect of life imprisonment or the death penalty. Certainly that is true to the extent that terrorists who have been locked up can't repeat their crimes. But there are many other foot soldiers and lieutenants in bin Laden's ranks, and deterring them in advance is difficult, especially among true believers who willingly seek martyrdom.

To protect Americans from terrorism rather requires action to intercept operations before they happen. Criminal convictions after the fact are cold comfort. In the final analysis, every courtroom prosecution of a terrorist represents a failure of intelligence.

In trying to prevent terrorism, we cannot apply America's courtroom standards to all overseas government operations. Proof beyond a reasonable doubt is the high hurdle to be jumped in U.S. criminal trials -- a laudable ideal in a civil society where most people obey the law and few engage in systematic murder. But outside that paradigm, one can't always wait to take action until the last FBI interview report has been filed. There are no federal magistrates who can issue injunctions to shut down bin Laden's training camps in Afghanistan.

And when prevention fails, we may sometimes have to respond with the techniques of war. That's what we did immediately after the embassy bombings -- mounting air strikes against bin Laden's headquarters in Afghanistan and against a secondary target in Khartoum, Sudan, where bin Laden was based until 1996. We faced immediate criticism from observers who felt that bin Laden's guilt should first be juridically proven (though we must assume they are satisfied after last week's verdict), and that the target in Sudan, a pharmaceutical plant with some financial connections to bin Laden, was not justified.

But the purpose in launching American Tomahawk missiles against these assets was to show the leader that even as he seeks nuclear materials from the Chechens and cooperates on chemical weapons with Iraq, we can reach his hideouts and sanction his hosts. Countries that allow their territories to be used as staging areas for attacks interject themselves into the conflict, and cannot expect us to tolerate the misuse.

There is another danger in relying too much on legal action: The criminal justice paradigm creates an illusion of invulnerability. Accustomed to a society where most serious crimes are solved, Americans have gained a sense of protected isolation. When we hear that police have intercepted someone bringing explosive material across the border, we tend to think they've gotten it all. The familiar courtroom victory of good over evil, hard-wired into our cultural vernacular by the likes of Perry Mason, gives us the sense that we are in control and can easily, effectively prevent bad things from happening.

The reality is much more complex. We face hard choices: how much to invest in intelligence and covert capabilities, how to protect our safety while not sacrificing our privacy, and how to dissuade foreign governments -- including some of our allies -- who seek rapprochement with countries that are still sponsoring terrorism.

We need to have a serious discussion about some of the tensions between data privacy protection and effective counterterrorism. The Foreign Intelligence Surveillance Act allows liberal monitoring of foreign powers operating in the United States. But difficulty arises when foreign governments or terrorist groups involve American citizens, who have far greater rights of privacy. Public concern about the government's ability to monitor electronic data transmission is a testament to our high expectations as citizens. But it is also necessary to give a fair hearing to the idea that some forms of targeted surveillance -- such as the controversial Echelon and Carnivore technologies -- may be essential in counterterrorism.

More than a few years ago, I worked long hours in a windowless storeroom in the Manhattan federal building, preparing for a trial of two self-proclaimed terrorists -- discussing with FBI colleagues how to use trial evidence such as a defendant's diagrams of explosive triggers and stolen blueprints of federal facilities, together with the group's equipage of safe houses and false identities. In the bravado of law enforcement, we called it the "war room." At the time, we had no idea the term would become so apropos.

But we know it now. Terrorism, like guerrilla warfare, presents unique challenges to American security. If bin Laden thinks he is fighting a war, we cannot limit ourselves to Dick Tracy's tools for fighting crime.