This Is War Don't treat it as a law-enforcement problem.

BY SETH LIPSKY Thursday, September 13, 2001 12:01 a.m.

The most important thing President Bush has said so far is that as America goes after the perpetrators of these attacks, it will draw no distinction between those who committed the deeds and those who harbor them. Many of us will see in that remark the hope for a change in American strategy--one that will finally enable America to move away from a law-enforcement approach to terrorism and onto a war footing that will enable us to take this struggle to our enemies. This is not a law enforcement problem but a war. The enemy is not "terrorism," which is but the tactic. This war is being fought against America and the West by Islamic extremists and by the governments that they control or intimidate. By using the law-enforcement agencies and the courts, America has had to focus on the terrorist perpetrators and failed to address the problem of governments.

Thus, the attack on a U.S. airline--Pan American World Airways--precipitated no military action. Rather, there began a long campaign to bring the bombers of Pan Am flight 103 "to justice." At one point, Americans saw the spectacle of the Clinton administration in a U.S. federal court defending Libya against an attempt by families of the victims of the bombing to pierce Libya's sovereign immunity. Eventually a Scottish court, sitting in The Hague, convicted one of two Libyan agents thrown into the dock in the case. Now a Harvard professor, Alan Dershowitz, has joined in preparing his appeal.

Another case is that of the killing of Alisa Flatow, the New Jersey coed who was slain in Israel in an attack funded by the Iranians. In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act. It was designed to strip terrorist regimes of sovereign immunity so that they could be sued by victims of terrorism. Alisa Flatow's family won the first big judgment under the law, an award of some $250 million. When it came time to collect, however, the Clinton administration argued against the Flatow family in court, arguing that the Iranians should be allowed to hang onto their diplomatic properties and frozen assets. The Flatow family is still arguing with the case.

Another example has been the long campaign by the Zionist Organization of America to get the American government to go after Palestinian Arab terrorists who murder Americans. Until the latest attacks, the ZOA estimates that there had been 20 such killing of Americans since the Oslo peace negotiations began. It has long striven to get the State Department to do what it does in the cases of other Americans murdered overseas, which is offer and post rewards for information leading to the capture of the murders. The only instance in which it hasn't taken such steps is in the case of the Palestinian Arab terrorists who have killed Americans. The situation has gotten so bad that the Congress is now considering legislation to empower the Justice Department to deal with these cases.

These kinds of absurdities led some of us to argue against the very concept of a great power--or any power, for that matter--using the courts as a venue for carrying out antiterrorist warfare. It's not that there's no constitutional precedent. Seth Gitell, a former colleague of mine at the Jewish Forward, wrote a piece for The Wall Street Journal about the power the American Founders delegated to Congress to issue letters of marque and reprisal--licenses to private parties to carry out military actions overseas. To put it another way, one could argue that at some theoretical level, there is a framework for putting the burden on private parties.

In practice, though, all forms of litigation and the enforcement of criminal laws have been a recipe for defeat. Not only because they are unwieldy and lead to ridiculous situations but also because they target named individuals. It would be as if America launched the Normandy invasion in an effort to arrest Hitler and Goering. What caught my attention in the president's remarks Tuesday evening was language that suggested he was going to try to avoid falling into this trap. By stating at the outset that he was going to draw no distinction between the perpetrators and those that might be harboring them, he has opened the door to warfare against the nations that tolerate terrorists on their soil.

Here there will be no shortage of targets, from Afghanistan to Iran to Iraq to Syria to the Palestinian Authority. Or even, for that matter, Saudi Arabia, which proved so recalcitrant in cooperating in our investigation of the bombing of an American barracks. There will always be those who will talk of the "root cause" of terrorism, the way an earlier generation of isolationists talked of Versailles and other "root causes" of German anti-Semitism and the rise of Hitler. The important point now is to move away from viewing this as a law-enforcement problem, on which President Bush has made an encouraging start.

Mr. Lipsky is a contributing editor of The Wall Street Journal. His column appears Wednesdays. Copyright © 2001 Dow Jones & Company, Inc. All Rights Reserved. http://www.opinionjournal.com/columnists/slipsky/?id=95001114

PLUS READER RESPONSES FROM THE SAME PAGE

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Victory Is Possible Dave Franch - Chicago Mr. Platzer, how many Japanese and Germans are attacking the U.S. today? We must take the fight to the enemies of the U.S.

The Rules Still Apply J. Reynolds - Houston While this indeed is war, there still are (at some level) rules. Rather than wreaking wholesale destruction upon an entire city and slaying a lot of innocents, it truly would be preferable to capture just the individuals involved, try them for war crimes, sentence them duly, strap them to gurneys, place the needles and rehabilitate them forthwith.

Kill the Bastards Thornton Sanders - Charlottesville, Va. Again, amen! It's a supreme irony that until the aftermath of Sept. 11, 2001, Israel, the only democracy in the Middle East, is led by Gen. Ariel Sharon, who was apparently the only elected leader of a democratic country in the entire world who understood that fundamentalist Arab dictatorships are at war with the West and with Israel, that these dictatorships are fighting the war using terrorists as their long-range weapon of choice, that when a nation is at war it must kill its enemies in order to win, and that in war there is no substitute for victory.

Now it appears that this reality has finally penetrated the thick skulls of the U.S. Congress, the Bush administration (but not the Clinton administration for eight long years), and the American people. It is high time the U.S. acknowledged that an Islamic jihad has been publicly declared and is being waged against us every day. Our acknowledgment should be in the form of a public declaration of war against those who declared it against us. It's also high time that we quit pussyfooting around in a defensive posture and went on the offense with the objective of killing as many of the terrorist bastards as we can get our hands on. The idea that we should capture terrorists alive so that they can be for referred to the Hague for trials under international criminal law must be something which originated with Alan Dershowitz and his ilk in academia or the geniuses in the United Nations.

The Arab World Will Join the Modern World Ted Johnson - Carrollton, Texas Mr. Lipsky quite rightly points out that the "rule of law" has become the rule of lawyers, an absurd playground for dilettantes who cannot come to grips with the reality that there are people out there who hate us and want to harm us because they need someone to hate. Having lived abroad, I have some personal insight into this phenomenon, but in this country as well I have met people for whom hatred gives meaning to life.

In the case of the Arab world, we are faced with a radical conflict between a tribal, prescientific mentality and a modern, secular, scientific culture. The shah of Iran lost big because he attempted to bring his nation into the 20th century; his opponents and their like-minded revanchists will die before they will change. But in the end the Arab world will join the modern world; we need not delay that outcome by proving ourselves unworthy of their respect.

We Must Win Alice Felt - Walla Walla, Wash. This is worse than war, at least as we've known war in the past. The enemy is not wearing a uniform and is not representing a particular state or country. They can be anywhere at any time. How vast and extensive the terrorists' ties to nations that support them is really unknown. We may have some idea through intelligence, but as pointed out in another editorial on this page, our intelligence capabilities are hampered by rules that keep us from using sources most likely to provide the information we need.

Mr. Rumsfield spoke on Wednesday of the continuing problem of laxity in regards to classified information that has resulted from our sense of security that came with the end of the cold war. We know how China showed interest in our "secrets" during the Clinton administration and how information likely made it's way into their hands.

Our sense of security has been a false one, and such a false sense may have put us in a weakened position. We now must fight this war but, more important, we must be able to win it. Not having a clear idea of just who the enemy is and what their capabilities are, what are the odds of winning, and what are the odds we could loose everything in the process? With all the calls to wage such a war, it seems worthwhile to consider the possible outcome, because the opposite of our winning would be the obvious, it would be losing on a massive scale. That is something that cannot happen.

Just Like the Japanese After Hiroshima Steven Platzer - Chicago I hope that when people like Seth Lipsky call for a sharp move away from the "root causes of terrorism" and toward the launching of a total war against it, they fully realize this will require us to slaughter countless thousands of quite innocent people, people whose children and grandchildren will seek revenge against ours for many years to come.

-- Rich Marsh (marshr@airmail.net), September 14, 2001