The devastating consequences of the attacks of September 11, 2001, may finally cause our leaders to deal effectively with terrorism. For years now, presidents have denounced terrorist attacks on Americans and promised to "pursue" attackers until they "are brought to justice." These have turned out to be empty words. Rather than using the military to put an end to the groups we know are responsible, presidents have used the FBI to investigate, to develop evidence, and then to pursue through the criminal process those low-level operatives we are fortunate enough to arrest. This policy of dealing with the terrorist threat has allowed Osama bin Laden and his leadership—and the state that has given them sanctuary—time to plan, prepare, and implement new attacks of increasing seriousness.
Prosecutors and investigators were deservedly proud when, on May 31, 2001, a jury in New York ruled that four defendants were guilty of conspiring with bin Laden to bomb American embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, on August 7, 1998. The bombings killed 224 people, including 12 Americans, injured thousands, and caused property and other damages of several hundred million dollars. Convicting the responsible individuals establishes that they are subject to the rule of law; brings a sense of justice to survivors and relatives; lends credibility to the pledge that terrorists who kill Americans will be pursued until captured, prosecuted, and punished; and can lead to information helpful in capturing and prosecuting others, preventing future attacks, and exposing the aims and methods of the terrorist groups involved.
"U.S. policy must focus on destroying international terrorist groups—not merely prosecuting individual terrorists."
But an antiterrorism policy based principally on criminal prosecution has created the misleading impression that the U.S. government is providing the American people with meaningful protection. It is not. It is in reality uncomfortably like playing the computer game "Where in the World Is Carmen San Diego?" in which player-investigators are assigned cases involving spectacular crimes—for example, stealing the Golden Gate Bridge—committed by members of Carmen’s extensive gang. Investigators then dash off to collect evidence, flying from place to place, on the basis of clues received from witnesses and documents. If successful, an investigator gradually puts together enough evidence about the culprit to establish probable cause for an arrest. The investigator must then secure a warrant and thereafter may arrest the correct person, and only that person, when he or she appears on the screen. Every successful arrest is a win, even though the boss—the daring and elusive Carmen San Diego—remains at large, arranging for other gang members to commit new crimes. Successful investigators are congratulated and promoted. According to the 10-year-old senior investigator who lives in my home, it is possible to arrest Carmen San Diego herself, after all her numerous henchmen have been jailed, but he has yet to achieve that sublime result, after which in any event a reincarnated Carmen San Diego appears and the game goes on.
The criminal process has objectives, procedures, and results very much like those in the Carmen San Diego game. These contrast dramatically with the objectives, procedures, and results that would characterize an effort to deal with bin Laden and his conspirators as enemies of the United States, not merely criminals.
The ultimate aim of criminal prosecution is to capture and deter those responsible for bin Laden’s attacks. Necessarily, though, each prosecution is of specific individuals who are known to have perpetrated specific crimes. Although bin Laden and some of his top associates were indicted along with the four actually tried, they cannot be reached by the criminal process as long as they stay in Afghanistan, which refuses to extradite or prosecute them.
By contrast, an effort to deal with bin Laden and his group as enemies would focus on bin Laden himself and every other member of his Al Qaeda organization, regardless of their susceptibility to prosecution for particular crimes. The objective would not be convictions of particular Al Qaeda members but ending the threat they pose.
Moving Beyond the Courtroom
Relying on criminal prosecution to combat international terrorism has led, after each bin Laden attack, to an intensive criminal investigation led by the FBI. Given its aim of arresting and prosecuting the actual perpetrators of each offense, FBI investigators strive to find and develop usable evidence to identify individual suspects; to secure search and arrest warrants; and to extradite and prosecute those brought to trial. To use evidence at trial, moreover, prosecutors have to satisfy rules unrelated to reliability. And the need for usable evidence often leads prosecutors to offer deals to participants who are sometimes more culpable than those actually prosecuted.
"The CIA and FBI have confirmed that bin Laden’s group is attempting to obtain weapons of mass destruction, and several Islamic states that tolerate or encourage anti-Western terrorism have already developed nuclear capacities that could lead to even more devastating attacks."
An approach that focuses on bin Laden as an enemy of the United States also requires investigations but would attempt primarily to determine who was ultimately responsible, rather than to build criminal cases against particular perpetrators. The test for evidence would be its reliability, not its admissibility; and the strength of its value would be judged not by any specific legal standard but by whether the evidence justifies the measures the United States is considering taking. Deals made with bin Laden’s associates would be to obtain cooperation in destroying his capacity to attack the United States, rather than to develop evidence to prosecute underlings.
How to Battle the New Terror
Antiterrorism efforts must ultimately be judged by whether they prevent attacks. Criminal prosecutions aimed at low-level conspirators are unlikely to have any deterrent effect. They are as likely to be effective against bin Laden and his leadership as the fantasy prosecutions of Carmen San Diego. They take years to complete and may take place after additional attacks have been launched. They cannot be expected to shut down terrorist organizations operating in hostile and uncooperative states such as Afghanistan. Nor is Afghanistan likely to be convinced by successful prosecutions to surrender bin Laden; the Afghan information ministry condemned the embassy bombing convictions as "unfair" and promised not to hand over bin Laden "under any circumstances," calling him "a great holy warrior of Islam and a great benefactor of the Afghan people."
Criminal prosecutions are especially ineffective in deterring fundamentalist terrorist groups able to recruit individuals willing to sacrifice their lives in suicide bombings. These terrorists are not "cowards," as U.S. officials sometimes assert; they are crazed killers, wholly prepared for the ultimate sacrifice. In any case, although some will cooperate rather than face life imprisonment or death, Al Qaeda and similar organizations limit the damage any one individual can inflict by functioning in loosely knit groups.
The U.S. government must adopt what former secretary of state George P. Shultz has called a more proactive approach. To treat bin Laden as an enemy of the United States requires more than the prosecution of underlings or even a freeze on Al Qaeda’s assets and economic sanctions against Afghanistan. It requires a shift in attitude, from one of responding to terrorist attacks as ordinary crimes to one of attempting directly to prevent terrorist groups from carrying out their threats. This shift requires taking security standards much more seriously, urgently developing defensive technologies, and above all using force sufficient to deter or prevent specific threats. We need a president who orders his staff to end the threat and a staff that is capable of implementing his order.
"It is time to deal with bin Laden and his conspirators not merely as criminals but as enemies of the United States."
Recent terrorist attacks have been successful because of a reckless indifference to security standards. Khobar Towers, the U.S. military housing complex near Dhahran, Saudi Arabia, and the U.S. embassy in Nairobi, Kenya, lacked essential perimeter protection. The USS Cole was successfully attacked on October 12, 2000, because inadequate security allowed an unknown vessel to come close enough to blow a hole in its hull and kill 17 sailors. The World Trade Center bombing in 1993 might have been prevented if Arabic-language documents seized earlier from terrorists had been translated. The terrorists who destroyed the World Trade Center and part of the Pentagon were able to seize four of the four planes they targeted.
Lapses such as these would not be tolerated if U.S. officials treated terrorist attacks as the national security threats they are. Moreover, the United States needs not only to prevent lapses but also urgently to develop measures to reduce the risk of human error. The CIA and FBI have confirmed that Al Qaeda is attempting to obtain weapons of mass destruction, and several Islamic states that tolerate or encourage anti-Western terrorism have already developed capacities that could lead to even more devastating attacks.
Force is the essential method of protection when all else fails. Every recent U.S. president has properly concluded that necessary and proportionate force may lawfully be used in foreign territory to prevent attacks by terrorists given sanctuary there. Nor is it correct to claim that an attack aimed at Osama bin Laden would be an attempt to "assassinate" him. The concept of assassination as a limit on the use of force precludes acts that amount to murder; it does not limit the use of force in self-defense.
Resorting to force, even when lawful, does require great care. Mistakes or excessive collateral damage can undermine its potential effectiveness. Although the United States is free to act unilaterally in its self-defense, it must be prepared to defend its actions or to admit and pay for its mistakes. In 1988 President George H. W. Bush apologized for the destruction of an Iranian passenger airliner—which killed all 290 people aboard—by a U.S. Navy warship and negotiated a settlement with Iran.
Ultimately, it is not any legal inhibition that accounts for the U.S. policy of prosecuting rather than destroying international terrorist groups. Rather, it is the claim that such attacks lead to reprisals against the United States, creating a cycle of violence and making terrorists like bin Laden heroes in the eyes of Muslim militants. People cite in this connection the bombing of Pan Am 103 by Libya, allegedly in retaliation for the bombing years earlier of Colonel Muammar Qaddafi’s headquarters. It is true that attacks on militant groups in foreign states may lead to further terrorist attacks. But it is also clear that militants who publicly commit themselves to attack U.S. targets are not going to be deterred by criminal prosecutions and can only be stopped through effective action. The bombing of Tripoli was in fact effective because it stopped Qaddafi from carrying out several attacks that he was planning at the time. The key to success is not merely to attack but to attack until the capacity of the group involved to commit acts of terror is destroyed. In no form of real warfare would a combatant expect an enemy to cease its attacks merely because of a single, largely symbolic use of force, such as President Clinton’s strike against bin Laden in Afghanistan.
Furthermore, the claim that attacks on terrorists risk violent responses is equally applicable to criminal prosecutions. A criminal-law strategy is as likely to anger terrorists as attacks aimed at destroying them, and public trials equally serve to make them heroes in the eyes of militants.
Only in the world of computer games can we expect to avoid the real risks of confronting an enemy. It is time to stop playing games and to give bin Laden and Al Qaeda the attention they deserve. Let us stop talking about "bringing them to justice" and start doing what justice requires.
Read remarks made by George Shultz during an interview on CNN hours after the attacks on the World Trade Center and the Pentagon on September 11, 2001.