Since the first deadly strikes against American targets in the 1980s, the United States has struggled to develop a swift, just, and consistent approach to combating terrorism. U.S. policy has ranged from launching missile strikes on terrorist dens abroad, to trying suspects in U.S. courts, to allowing foreign investigators to take the lead in probes overseas.
So when President Bush quickly labeled the Sept. 11 attacks on New York City and Washington as "acts of war," it seemed that his Administration had embraced a new and decisive approach to fighting terrorism.
It now appears, however, that Bush and his national security team are also pursuing a deliberate legal strategy based on advice they are receiving from an elite cadre of government lawyers. According to legal scholars and Administration officials, legal authority is needed for two reasons: to justify U.S. military action against terrorist networks, and to bring to trial terrorist suspects being rounded up in America and abroad.
Experts say that one of the first and thorniest issues that Bush and his attorneys will face is determining what constitutes a legitimate target for a military strike. "The difficulty is that people want to maintain a bright-line rule," says Ruth Wedgwood, a leading expert on international law. "The old assumption had been that military objects are those that wear khaki or camouflage." But the fight against terrorists isn't so clear-cut.
Recent international engagements have blurred the distinction between civilian and military objects. For example, is it permissible to strike an automobile factory normally staffed by civilians that had the mere potential to produce military vehicles? The United States has been criticized in the past for destroying ostensible civilian targets that it claimed were actually being used for military purposes.
The seasoned lawyers that President Bush is depending upon to develop the legal case for action include John B. Bellinger III, senior legal adviser to the National Security Council; Timothy E. Flanigan, deputy White House counsel; William H. Taft IV, the top lawyer at the State Department; and William James Haynes II, general counsel to the Defense Department.
Bush is well served by this group of advisers, says Elizabeth Rindskopf Parker, former general counsel to the CIA and the National Security Agency. "They have all been through this before, and they can think things through," she says.
It's understandable that National Security Adviser Condoleezza Rice tapped Bellinger to be her legal adviser. His credentials include advising the Senate Select Committee on Intelligence, overseeing criminal cases at the Justice Department involving national security, and serving as a special assistant to William H. Webster, who was CIA director.
Bellinger is included in meetings on intelligence matters, including covert operations, that are held in the West Wing Situation Room and attended by Bush; Rice; the Chairman of the Joint Chiefs of Staff; the director of the CIA; the Attorney General; the Secretaries of Defense, State, Treasury, and Transportation; and the U.S. ambassador to the United Nations.
Haynes's role underscores the importance of having legal expertise in military law. Douglas A. Dworkin, the general counsel to the Defense Department in the Clinton Administration, says that Haynes advises on laws and international conventions that govern armed conflict, on the concepts of necessity and proportionality in using force, and on whether armed force is appropriate in a particular situation.
Taft, the great-grandson of President William Howard Taft and a former counsel to President Reagan's Defense Department, chairs a group that includes general counsels from the Defense Department, the CIA, and the national security adviser to the Joint Chiefs of Staff. The group analyzes international law issues and conventions.
Flanigan, the senior legal adviser to the President, is an unusual addition to this coalition of lawyers. He worked in the Justice Department's Office of Legal Counsel in the early 1990s and brings experience in domestic-security law. Traditionally, the White House counsel's office has relied on the Office of Legal Counsel at the Justice Department to advise the President on the domestic laws related to security and defense. Sources say, however, that Flanigan is plugging the hole left by the unfilled legal counsel position at Justice. Flanigan did not return calls asking for comment.
Meanwhile, U.S. allies are talking about the need for evidence and are urging some restraint. And earlier this week, Secretary of State Colin L. Powell said that government lawyers were preparing evidence against suspected terrorist ringleader Osama bin Laden, and would soon present the information to allies. The move came after news reports of disagreements between Powell and Deputy Defense Secretary Paul Wolfowitz, with Powell stressing the need for diplomacy and a strong legal brief and Wolfowitz pushing for an immediate military response.
"The U.S. government has to be prepared to go to the Pakistanis, the Egyptians, and the Saudis and say, 'We have evidence,' and convince them that we are right," says Jeffrey H. Smith, a partner at the Washington law firm of Arnold & Porter and a former general counsel to the CIA.
And what of the suspects that law enforcement officials have already arrested? "We would be obliged to try them," says Jordan Paust, director of the University of Houston's International Law Institute. "We would be obliged also to try any prisoners of war."
Those trials might be held in U.S. courts. But the Bush administration might also establish military courts, consistent with the administration's "acts of war" assessment. Such military trials were held during World War II, when German saboteurs caught in the United States were tried and hanged within a month. Some administration officials reportedly see such tribunals as a means to shield sensitive sources and classified information. It's an idea that rankles civil libertarians, and the United States has vehemently opposed such trials abroad, most recently condemning the trial of American Lori Berenson, who was convicted by a Peruvian military court of aiding the Tupac Amaru guerrillas in the early 1990s.
FBI Director Robert Mueller III, Attorney General John D. Ashcroft, and the head of the Justice criminal division, Michael Chertoff, are already working on the criminal investigation against bin Laden.
Still, in public comments at least, the administration has rejected Taliban efforts to frame the terrorist attacks as law enforcement matters. The Taliban has offered to try bin Laden on its own or to extradite him for trial before an Islamic court in a third country if the United States provides evidence of his guilt. If the United States accepted the offer, such trials would not be without precedent.
After the 1995 bombing of a U.S.-run military installation in Riyadh, Saudi Arabia, the United States allowed local authorities to investigate and try the alleged terrorists, who were executed.
In that case, as well as the later bombings of the Khobar Towers in Saudi Arabia and the USS Cole in Yemen, the United States never alleged that Saudi Arabia or Yemen had aided the terrorists, as President Bush has accused the Taliban of doing in the Sept. 11 attacks. In the bombing of Pan Am Flight 103, which killed 270 people over Lockerbie, Scotland, in 1988, the United States suspected Libyan government involvement but assented to a trial in a third country. Under international pressure, Libya ultimately extradited two men for trial in the Netherlands, where they were tried under Scottish law. One was convicted and sentenced to a life term, the other was found not guilty and freed.
Although it seems unlikely that the Bush administration would accept a similar offer now, it might reconsider if the Taliban begins to cooperate with U.S. authorities or if suspects are captured alive.
If trials were to occur, U.S. prosecutors would likely turn to precedents from the Lockerbie case, in which the Scottish court relied on a 1971 international treaty, the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. Legal scholars say that a 1970 Hague treaty establishing international rules for prosecuting airline hijackings could also aid U.S. prosecutors.
M. Cherif Bassiouni, former chairman of the U.N. commission that investigated war crimes in Yugoslavia, says the important thing "is to achieve our goals, not the means we use to get there." At some time, Bassiouni added, "the United States has to prove its case."
NEXT STORY: OMB guidelines on information quality