By partly condoning this week's Israeli attack on Palestine Liberation Organization outposts in Tunisia, the Reagan administration has proved more attentive to politics than to the fine points of law. Critics say that by using US-made F-15 aircraft as part of the retaliatory attack and by stretching accepted definitions of ``self-defense,'' Israel clearly violated legislation governing the use of United States weapons sold abroad.
But, while Israel may have crossed legal lines, a variety of political considerations -- the administration's own antiterrorist policy and close US-Israel relations -- have, in effect, forced the administration to look the other way.
``There's too much at stake right now -- the peace process, arms sales to Jordan, antiterrorist policy -- for the administration to tie itself up in legal niceties,'' says one Washington-based Middle East expert.
This week, Israeli jets launched a surprise attack in Tunisia, in retaliation for last week's killing of three Israeli citizens in Cyprus. The killers were allegedly members of a PLO terrorist unit. It was the first Israeli raid outside Lebanon since Israeli jets destroyed an Iraqi nuclear reactor in 1981. In a statement last Tuesday, Israeli Defense Minister Yitzhak Shamir said the attack was intended to demonstrate that no act of PLO terrorism was beyond the ``long arm'' of the Israeli mil itary.
Reflecting disagreements within the Reagan administration on how to appropriately respond to the raid, White House and State Department spokesmen have now backed away from Tuesday's nearly unqualified endorsement by the administration of the Israeli action. Spokesmen said Wednesday that the US deplored the raid's contribution to the ``rising pattern of violence'' in the Middle East.
Nevertheless, administration officials continue to describe the Israeli response as a legitimate reaction to recent PLO provocations.
Many critics have taken strong exception to the administration's characterization of the Israeli raid as an act of self-defense. They say that in international law the concept was never meant to apply to retaliatory acts against a neutral country, much less to the killing of tens of civilians to compensate for the death of three Israelis. Under the circumstances, the Presi-dent should condemn the raid and stop arms sales to Israel, say some critics.
The 1976 Arms Export Control Act prohibits the use of arms purchased from the US for purposes other than ``internal security'' or ``legitimate self-defense.''
So far the State Department has said only that it will ``look into the facts'' regarding possible violations. But observers here say at least two factors make it highly unlikely that this administration will be any more aggressive than past administrations have been in holding the Israelis to strict account.
One is the Middle East peace process. At present, the administration is gently prodding Israel toward peace talks with Jordanian and Palestinian negotiators. At the same time, US officials are trying to clear the way in Congress for a major sale of US arms to Jordan.
The worry here is that by making too much of the Tunisian incident, the administration risks alienating both Israel and Israel's supporters in Congress who are key to succeeding with the Jordanian arms deal. This would upset both sides of the administration's effort to find some political solution to the worsening Middle East crisis, administration sources say.
Thus, whatever the strict requirements of international law, there appears to be too much at stake politically to carry the issue too far.
Sources here note the irony that, despite a critical reaction to the Israeli raid, Jordan's King Hussein -- for his part -- has publicly reaffirmed his commitment to the peace process.
The second factor contributing to the administration's reluctance to unequivocally condemn Israel's raid is the similarity between US and Israeli policies regarding terrorism. In a major speech delivered last October, Secretary of State George Shultz said the US should not only retaliate against acts of terrorism but should undertake preemptive action against terrorists, even if it means risking innocent lives.
So far, execution of the new US policy has been frustrated by the inability to identify specific terrorists, as in the recent case involving the hijacking of a TWA airliner in Beruit. But by justifying the Israeli raid, the US has now set a precedent by proxy, signaling that, faced with comparable circumstances, the US would react in a similar way.
``Here's a clear case where international law has to catch up to new kinds of problems,'' says Barry Rubin, a Council on Foreign Relations fellow. ``If the US says it's against international law to retaliate against terrorist acts, the effect would be to foreclose the possibility for retaliation under any circumstances.'' He adds that faced with the growing incidence of terrorist acts, few countries are likely to close off any options for dealing with terrorism.
``Whatever the intent of international law may or may not be, nations are going to act for fear of never being able to act,'' adds Robert Kupperman of the Georgetown Center for Strategic and International Studies.