- The Washington Times - Tuesday, November 19, 2002

In the midst of our war on, against or with terrorism (and the selection of the proper preposition is no small matter), we find ourselves accused, almost daily, of being terrorists, or more recently by Osama bin Laden himself, serial killers. Despite the fact that we were attacked without provocation on September 11, despite the embassy bombings, the attack on the USS Cole, the Iranian hostage crisis and numerous other incidents over the years, the nagging question of moral equivalency persists, echoed by our so-called allies in Europe and much of the Muslim world.

In Afghanistan, villages were blown to pieces by smart bombs while Taliban and Al Qaeda fighters escaped. This is the nature of terror: It makes for very bad press and causes a nation of conscience, like the United States, to doubt itself. Is this country capable of claiming the moral high ground as it did in 1941? In order to prevail in what is likely to be a difficult and sustained struggle, a well-thought-out definition of the enemy we face may well be necessary.

Three related concepts enter into such a definition: warfare, espionage and crime. Each of these activities invokes sanctions; each is governed by laws. But it is clear that the kind of terrorism we now face does not fall neatly into any of these three categories.

While a terrorist who commits his terrorist act in this country can be tried as a criminal under U.S. or state law, the threat he poses is so great that his mere imprisonment or execution is insufficient to protect our security for two reasons. First, the terrorist may continue to be involved in terrorist activities from captivity, e.g., the blind sheik, convicted in connection with the first World Trade Center bombing. Second, imprisoned terrorists often become bargaining chips in future terrorist operations, as in the Munich Olympics tragedy. Furthermore, terrorists are often foreign nationals, in this country illegally with unlawfully obtained or expired documents. Thus, the usual tools of domestic law enforcement fingerprint analysis, prior histories, background checks, domestic informants, etc. will not work in a criminal justice context.

The other two paradigms for addressing the threat espionage and warfare are equally inapplicable in practice for one primary reason: Today's terrorist does not represent a nation-state.

Obviously, the United States cannot conduct war against a nation when the combatants attacking us are not in facts soldiers of any one nation. This reality contributed to the aura of confusion surrounding the Afghanistan campaign, since the Taliban itself never directly attacked American interests, and it is most certainly contributing to the difficulty in obtaining international support for the toppling of Saddam Hussein's regime. But more important, the terrorist is apparently free, at least in his own eyes and amazingly in those of much of the world to attack this country, and our real allies, without fear of retaliation in kind precisely because his "homeland" is not a nation, but anywhere he hangs his hat.

I would, therefore, propose a working definition of the contemporary international terrorist as follows: Any person who uses violence outside the territory of the nation of which he is a citizen to advance some political or other agenda. Note that those acting within their own countries can be viewed, if "in the right," as patriots (Washington, Lenin); those who eschew violence escape the label of terrorist (Gandhi, Martin Luther King, Nelson Mandela); those with no agenda are simply criminals (the Son of Sam, the Zodiac Killer).

There is a further distinction between the terrorist and the combatant in a legitimate war. In every modern international conflict we find a rationale, identifiable combatants and a method for terminating hostilities. World War I, for example, was an horrific affair, but it was concluded by treaty. The goals of the parties were complex and not entirely noble, but they are known.

But what of our current enemy? What does bin Laden want of us except that we suffer and die? Why does he wish this except because we are Americans?

A kind of moral paralysis has stricken the world. The very idea of acting from a sense of moral right is now viewed as naive or even improper. As World War II loomed, Franklin Roosevelt and Winston Churchill realized that fascism threatened the very survival of Western Civilization while war-weary Europe sang the anthem of appeasement. Santayana notwithstanding, history does repeat itself.

We in the United States and Britain will no doubt have to take on Saddam Hussein largely on our own and then sustain the larger campaign against a more diverse and insidious enemy.

Frederick Grab is a former California deputy attorney general and is currently representing John Reiner, convicted of conspiracy and attempted extortion against Erin Brockovich and Ed Masry.

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