WASHINGTON — Americans like trials. It's the civil, fair, just way to settle disputes. But we like them too much. A general critique of Americans is that we bring everything to court. Our more serious problem, however, is that our addiction to trials infects and distorts our foreign policy.
Thus when the USS Cole was attacked by terrorists, we made the usual post-terrorism pledge, some variation of: We will not rest until we track down the perpetrators and bring them to justice. And the first thing we do is send the FBI, as if it were dealing with some wise guys in the Bronx.
What is the point of bringing to trial the lowest creatures on the terrorist food chain, the ones naive and expendable enough to be involved in pulling the trigger, when we know that they are being sent by masters invariably out of the reach of law enforcement? Some, like Moammar Gadhafi in Libya, are beyond reach because they run governments; some, like Osama bin Laden in Afghanistan, because they are protected by governments.
The paradigm is wrong. When Americans are deliberately victimized by terror abroad, this is not a law-enforcement matter. This is war. And you respond as in war: On evidence far less stringent than "beyond a reasonable doubt," you go after the terror chiefs or, if necessary, the governments protecting the terror chiefs, with military force. Bombing a headquarters is far better deterrence than indicting an underling.
The futility of the law enforcement model for dealing with terrorism was made painfully clear by the case of Pan Am 103. The Lockerbie trial was a travesty from the very beginning. U.N. Secretary-General Kofi Annan promised Libya in advance that "prosecutors would not attempt to embarrass or implicate the Libyan government."
It was a sham from the beginning, and it was a sham at the end. Libyan intelligence agents don't go out on their own blowing up American airplanes. Yet the egregious result was utterly predictable: A proceeding held to apparently high Scottish standards found one peon guilty, let Gadhafi off the hook, and justified the lifting of sanctions on Libya.
And now the pursuit of justice abroad is bringing more mischief. Last Tuesday, Yugoslavia's ambassador to the United States assured a Capitol Hill hearing that Slobodan Milosevic would be arrested by the end of the month.
Odd venue, odd deadline. Why? Because it turns out that $100 million of U.S. aid is contingent upon Yugoslavia cooperating by March 31 with the U.N. war crimes tribunal in the Hague. As R. Jeffrey Smith reported in The Washington Post, "The Belgrade government evidently hopes that the spectacle of Milosevic's formal arrest will allay foreign concerns that it is not acting quickly enough to hold him responsible for his actions."
The operative word here is spectacle. The possibility of a show trial is great. Milosevic is certainly a thug, but investigators are finding that proving his crimes is not easy. He left very little of a paper trail. In fact, he'll probably be indicted not for murder or war crimes but corruption: The only hard evidence against him right now involves a crooked land deal. That is the Yugoslav equivalent of nailing Al Capone for tax evasion.
I'm not against arresting the guy, whatever the charge. But the headlong rush to arrest him to meet a cash-rich, artificial American deadline is bizarre, and could even be dangerous. True, jailing him could rid the country of his influence. On the other hand, it could create a backlash and revive his now fading political party.
What to do? Such calculations are best made not by us but by Yugoslavia's new, democratically elected leaders. And President Kostunica is not at all keen to have Milosevic arrested. Yugoslavia had already had too much "revolutionary justice," he told a leading Belgrade newspaper March 3. Moreover, a trial could ignite a cycle of political revenge.
"People who are in power today could tomorrow become the opposition. "
Justice is easy to demand at a distance of 5,000 miles. It can come at a very high price in a country like Yugoslavia, however. Many countries emerging from tyranny — Chile, South Africa, El Salvador — have wisely eschewed justice in the name of social peace. Unless you win absolute victory, as the Allies did in World War II, you are not in a position to impose absolute justice. Compromise, even tolerating the intolerable (Pinochet, for example), may be required.
Justice is lovely, at home. But abroad is quite another matter. Sham trials against terrorist flunkies mock the very idea of justice. And hasty and pressured trials of tyrants can jeopardize not only justice but the even more precious value of peace.
Washington Post Writers Group