Stunned by the magnitude of Tuesday's terrorist attacks, Congress and the White House are reassessing an approach to fighting terrorism that until this week has favored the tools of law enforcement over those of war.
The immediate focus of the discussions is President Bush's request for congressional authority to wage war on nontraditional foes such as Osama bin Laden, the top suspect in the attacks, and Afghanistan's ruling Taliban militia, which gives him refuge. In addition, outside experts have suggested that the administration set up a military tribunal that could try suspected terrorists outside the normal constraints of American constitutional law.
In substance as well as tone -- lawmakers and administration officials have referred often this week to "an act of war" -- the debate over how to respond to the attacks appears to herald a significant shift in the nation's strategy for coping with terrorism. Beginning with the first Bush administration, policymakers have preferred to pursue terrorists through the courts. That was the strategy in the 1988 bombing of a Pan Am jetliner over Scotland and in the assault a decade later on two U.S. embassies in East Africa, both of which led to trials and convictions.
Although military force has always been an option -- President Bill Clinton launched cruise missiles at Afghanistan and Sudan after the embassy bombings -- policymakers frequently have argued that such action only invites retaliation. The goal in treating terrorism as a criminal matter, a senior Clinton administration official said in an interview last year, is to "depoliticize" terrorism and "delegitimize" it in the eyes of the world.
That legalistic approach has long had its critics, who say that putting terrorists on trial does not adequately address the role of hostile foreign governments, such as Libya or Iran, in sponsoring terrorism.
They also say it complicates the work of intelligence agencies that may be inhibited by courtroom rules of evidence and procedure.
Some saw vindication for their views in Tuesday's carnage.
"We have judicialized more aspects of human behavior than any civilization in history, and we may have come to the limit of that," said Stewart Baker, who served as general counsel to the National Security Agency from 1992 to 1994. "Frankly, if Osama bin Laden did this, I'm not really interested in bringing him back for a trial, and I don't think we're obliged to think in those terms."
Daniel Benjamin, a counterterrorism specialist in the Clinton White House, said such arguments posit a "false choice" between a military and legal response to terrorism. "To be able to try someone under the laws of our society is an expression of the power of those laws," he said. "Having said that, military action is absolutely indicated in a situation like this if it can be effective."
Benjamin acknowledged that "after an event like Tuesday, there has to be a fundamental shift" in how the nation defends itself against terrorism. And judging by the rhetoric of the past few days, that shift has begun.
In his address to the nation Tuesday night, Bush vowed that "we will make no distinction between the terrorists who committed these acts and those who harbor them" -- a point that has been echoed repeatedly on Capitol Hill.
Lawmakers were not prepared yesterday to grant Bush's initial request for unrestricted authority to wage war, fearing that such a resolution could return to haunt them if things turned sour, according to congressional staff members. Nevertheless, said a Senate aide, "the lawyers on both sides are sitting down to try to figure out what needs to be done to give the president all the authority he feels he needs," while retaining an oversight role for Congress.
Some former law enforcement officials close to the Bush administration suggest that the government set up a military tribunal to deal with terrorism suspects who are apprehended or turned over to U.S. authorities.
"A tribunal is a civilized response that lies between just killing the perpetrators and giving them the full panoply of rights afforded to U.S. citizens in U.S. courts," said Charles Cooper, a former high-ranking Justice official during the Reagan administration. "Civil courts would not be an appropriate forum for those prosecuting war against our country."
A source confirmed that the White House is considering the possibility that Bush could establish such a tribunal or ask Congress to do so.
Military tribunals have been used in past wars, including the Mexican War and World War II. During World War II, German saboteurs were captured in the United States, tried secretly at the Justice Department building in Washington and executed 30 days later by hanging.
"The Constitution is intended to protect the liberties of American people, not terrorists overseas," said a former senior law enforcement official. "Prosecuting these people in U.S. courts doesn't make any sense if you're essentially in a state of war."
There is some precedent for a swift and harsh response to terrorist attack. In 1986, President Ronald Reagan launched air raids against the Libyan capital of Tripoli, killing 39 people, days after the bombing of a Berlin discotheque in which two American servicemen died. U.S. intelligence had pinned the bombing on Libya.
Libya was also identified as the primary culprit in the Dec. 21, 1988, bombing of Pan Am Flight 103 over Lockerbie, Scotland, which killed 270 people. But that attack triggered a more cautious American response, in part because U.S. intelligence did not reach its conclusion about Libyan involvement until more than a year later.
U.S. officials also feared that a military response would do nothing to enhance national security -- and, in fact, might goad Libya's erratic leader, Moammar Gaddafi, into further attacks on U.S. interests.
So the Bush administration opted for the criminal justice route, indicting the two Libyan suspects and insisting that Libya turn them over for trial. Under pressure of U.N. economic sanctions, Libya finally did so in 1999; one of them was convicted this year by a Scottish court in the Netherlands. William Barr, attorney general in the first Bush administration, had asked the Scots to consider setting up a joint military tribunal, but they declined.
