Getting ready to fight a reign of terrorism

On Dec. 7, 1941, a new phrase entered the American lexicon.

“We’re in it.”

Now that the ghastly obscenity of terrorism has struck twice at home, it’s time to admit the obvious again. We’re in it, and it’s time to start thinking seriously about defense.

The United States can combat terrorism effectively without becoming either a garrison state or enduring mass violations of civil liberties. But effective counterterrorism may require fundamental organizational and legal changes.

First, how to organize.

In the hours after the Oklahoma City blast, the president and the media detailed, almost proudly, how many different agencies would be involved — easily more than 20, in one capacity or another. Practically speaking, that means a lot of good people getting in each other’s way; inevitable bureaucratic turf battles; and a variety of ad hoc or semi-institutionalized command, control and coordination agreements that work largely due to the quality of the people in the field. The alphabet soup approach — FBI, CIA, FEMA, DIA, INR, ATF — may have to go. A separate, permanent counterterrorism agency may now be required: not some nebulous “terrorism czar” or one more bureaucratic fiefdom, but a central operation that works counterterrorism full-time. Within that might be modeled after (of all things) the Cable News Network.

CNN succeeds because it maintains an efficient headquarters and some outlying bureaus, plus an enormous set of formal and informal arrangements with other media and individuals. Those people know when to call; CNN knows whom to call. Similarly, there might be a central counterterrorist agency handling ongoing intelligence analysis and exercising, as appropriate, operational and supervisory control over counterterrorist units. Those from the many agencies already involved, each working in its area of legal authorization and expertise.

In fighting terrorism, information — especially human intelligence (HUMINT) — is vital. Since HUMINT comes from many professional and occasional sources, the agency must be the clearinghouse for evaluation and dissemination of intelligence. The computer data base, worked by skilled career professionals, may well be the vital weapon in protecting a large, open society.

But who are those “professional and occasional sources”? The professionals and obvious: the intelligence community, law enforcement, paid informers, other countries (friendly or not) with a stake in the matter. Occasional sources — “stringers” in journalistic parlance — may include business people, tourists and journalists. Some of them would, no doubt, raise ethical questions about cooperating with their government against mags murderers. Perhaps the best answer might be that countering terrorism presents a unique exception to normal codes of professional conduct — for journalists, especially. On Judgment Day, the deity is less likely to inquire about Pulitzer Prizes than whether, when they had the chance to save some lives, they took it.

Beyond that, the United States, and indeed the Western world, needs to start developing a body of law that treats terrorism as it is. Terrorism operates in a twilight zone between criminal justice, as the West understands it, and war — again, as the West understands it. Terrorists may not wear uniforms. But they are enemies to be thwarted and defeated, not criminals to be brought to justice. When Attorney General Janet Reno pledged to seek the death penalty, however, was irrelevant. In countering terrorism, the appropriate tactics are pre-emption and retaliation. Trials come only after failure. The legal system is no deterrent.

On the other hand, nobody wants U.S. hit squads roaming at will or people locked up and deported merely because of their choice of parents. Law must evolve to address the new situation. There are two fonts for the evolution. One is the old concept of “universal jurisdiction.” Originally intended to deal with piracy on the high seas, the principle of international law holds that there are some crimes so heinous that anybody has the right, and perhaps the obligation, to take immediate action. The other source is the U.S. Constitution, which recognizes conditions of strife other than the clash of national armies, and remedies beyond the open use of conventional forces. Terrorism in some ways may fit the definition of insurrection or domestic disorder and, although archaic, the law still authorizes “letters of marque and reprisal,” i.e. the use of private and paramilitary forces. Using those traditions it is conceivable that counterterrorism could become a separate field of jurisprudence, with its own procedures.

No doubt, the ACLU would scream. And it is true that operating in the counterterror twilight zone means operating, sometimes, in the moral twilight zone. A free people and a free media must exercise a ferocious yet responsible vigilance. But to those who flaunt their inability to conceive of any issue save in terms of individual liberties, perhaps Supreme Court Justice Robert Jackson provides the answer in 1919 when he wrote, “whatever else it might be: ‘The Constitution is not a suicide pact.'”