Massive US efforts to hunt down terrorists and bring them to trial are falling short in one conspicuous regard: Masterminds of terror crimes aren't standing in shackles before the bar of justice.
Thus Libyan leader Muammar Qaddafi, the man US officials believe may have ordered Pan Am Flight 103 destroyed, was not brought to account in the just-concluded prosecution of two Libyans charged with the 1988 bombing. Followers of Saudi exile Osama bin Laden are now on trial in New York for blowing up US embassies in Africa - but Mr. bin Laden himself is spending days in the hills of Afghanistan, not Manhattan federal court.
To some experts, locking up small fry does not much help the terrorism fight. Bin Laden can always find another willing bomber.
But the prosecution of underlings can be the key to unlocking broader, worldwide terrorist conspiracies, say others. Combined with cruise missiles, diplomacy, and other antiterror strategies, it sends notice that the US and its allies will use all means at their disposal to deter and punish terror acts.
"It is useful for all sorts of reasons to go after the actual perpetrators of terrorism as well as the masterminds," says Steven Ratner, a war-crimes expert and law professor at the University of Texas at Austin.
Whether it is useful or not, it is certainly not easy. It took years, plus the squeeze of economic sanctions, to get Libya to produce two suspects for the Pan Am 103 trial.
It took more years, plus millions of dollars, to hammer together the strange legal construction of the actual proceedings: a trial by Scottish jurisprudence held in the Netherlands, with much of the evidence supplied by US intelligence.
Furthermore, the Pan Am 103 verdict exposed some of the limits of the criminal-case approach to antiterrorism. One defendant, Libyan intelligence officer Abdel Basset Ali Megrahi, was convicted and sentenced to life in prison. The case against another, Lamen Khalifa Fhimah, was judged not proven, and he was set free.
Left unaddressed by the court was the obvious deduction that neither of the defendants was likely to have decided on his own to undertake such a fateful act as destroying a Western airliner and murdering hundreds of innocent civilians.
"I don't think anyone who follows terrorism issues feels much doubt that the bombing was authorized at a higher level than the trial suggests," says Ian Lesser, a Rand Corp. terrorism expert.
Embassy bombings trial
By contrast, prosecutors in the big terrorist trial that opened this week in New York are taking a much more wide-ranging approach. In opening statements, they said they intend to describe the whole conspiracy behind the bombing of US embassies in Kenya and Tanzania in 1998.
The 150-page trial indictment lists everyone from bin Laden himself (also known as "the Prince," "the Emir," "Hajj," and "the Director," according to court documents) to his top lieutenants, down to the four alleged bombing participants who are actually in custody and on trial.
The government's first witness at the trial, a previously secret informer named Jamal Ahmed Al-Fadl, described himself as one of the first people to join bin Laden's al Qaeda terrorist group when it was formed in the 1990s, and described bin Laden holding court in a spacious three-story house in Somalia, talking Islam and revenge.
"We have to do something to take them out," he quoted bin Laden as saying about US forces in the Gulf region. "We have to fight them."
But even if the New York district attorney's office succeeds in uncovering the inner workings of al Qaeda, its top members remain beyond the reach of US law. Of 22 people named as participants in the embassy bombings, only 13 are in custody anywhere in the world.
Since Reagan-era legal changes expanded the FBI's ability to investigate terrorist acts overseas, the bureau has looked into more than 350 extraterritorial cases, according to government records. Some 10 terrorists have been convicted for their crimes, including such notables as Ramzi Ahmed Yousef, who helped carry out the 1993 World Trade Center bombing in New York.
But the persistence of terrorist networks - and the continued freedom of many of their masterminds - has led such critics as Center for Strategic and International Studies scholar Edward Luttwak to call the law-and-order approach "utter futility".
Not so, say defenders. Among other things, the legalistic approach has helped contribute to a decline in state-sponsored terrorism. Iran, among others, has seen large monetary judgments against it issued by courts in response to private claims of terrorist abuse.
Furthermore, the courts are just one drill in a toolbox which also includes the use of force. Neither should be judged in isolation - their threats complement each other, say some.
"Legal remedies have become a valid tactic in counterterrorism," says Mr. Lesser of Rand. "The instruments of fighting terrorism change and become more or less useful as the nature of terrorism changes."
(c) Copyright 2001. The Christian Science Publishing Society