Jury selection has begun for the trial of four alleged terrorists accused of participation in the 1998 bombings of the American embassies in Kenya and Tanzania. As in all criminal trials, the task of the court will be to weigh the evidence against the accused and, if they are found guilty, fix their punishment. But the trial also serves an evolving U.S. counter-terrorist strategy.
Prosecutors contend that the four are confederates of Osama bin Laden, the man who is believed to have masterminded the embassy attacks and ordered the bombing of the U.S. warship Cole in Yemen last October. In addition to the four currently on trial in New York, another suspected terrorist in the case awaits a separate trial, one has already pleaded guilty and three await extradition from Britain. Thirteen others have been indicted but remain at large. Meanwhile, six others await trial in Yemen for their alleged participation in the bombing of the Cole.
In the past, policymakers have debated whether terrorism should be treated as crime or as war. The rhetoric of U.S. officials clearly has put terrorism in the realm of war, and the United States on occasion has used military force to deal with it. But the difficulties of waging war on terrorists have pushed policy in the direction of a law enforcement approach.
Here, we have achieved a measure of success. Although only a handful of terrorists have been captured and returned, trials demonstrate that terrorists can be brought to justice.
Trials also keep terrorism in the realm of crime, stripping terrorists of political pretensions, depriving them of legitimacy. Yemen's president is no fan of U.S. policy in the Middle East, but in trying Yemeni nationals his government has decided that neither sympathies with Islam nor differences with Washington justify terrorism.
Trials offer opportunities to build the public case against terrorism and specific terrorist networks. The trial in New York will move much material from intelligence folders into the public domain--how much will be a matter of contention.
The New York trial will enable U.S. authorities to make the case against Bin Laden's network and justify, albeit after the fact, the U.S. decision to bomb his training camps in Afghanistan. The danger here will be prosecutorial zeal that blames Bin Laden for events in which his involvement is tangential or merely speculative.
Trials in U.S. courts are necessary to support U.S. requests that other nations accept the risks and bring terrorists to trial. It is hard to imagine Yemen trying terrorists if the United States itself were unwilling to do so.
Trials create a community of cooperation among the nations willing to prosecute terrorism. For a country like Yemen, legal action against terrorists can be politically painful, and imprisoning terrorists brings the risk of retaliation. This only underlines the point that cooperation in matters of intelligence and security aimed at prevention is preferable, which is what we seek.
Trials also can be used to support diplomatic efforts against governments that support or provide asylum to terrorists. The revelations that emerge from the trial in New York will increase the heat on Afghanistan's Taliban, which already faces political and economic sanctions if it does not turn over Bin Laden.
Dealing with terrorism as a criminal matter is not without frustrations. Gathering evidence and apprehension are difficult. Foreign governments do not always cooperate. We get the terrorist operatives, perhaps some lieutenants, not the leaders. Case-by-case prosecutions may not provide an adequate response to an ongoing terrorist campaign. And trials offer no immediate satisfaction--the attacks on the U.S. embassies occurred 2 1/2 years ago.
Military action offers an immediate response option but few lucrative targets. It also can isolate the United States diplomatically, fuel anti-American sentiments, exacerbate already volatile situations and derail diplomatic initiatives. International cooperation in imposing sanctions on the Taliban in Afghanistan seems preferable to useless bombing of mountain hide-outs.
That does not mean giving up a military option. The diplomatic benefits can exceed the military results. It can stiffen the resolve of wavering allies, create incentives for cooperation and warn adversaries that supporting terrorism is not risk-free.
Law enforcement, military action and diplomacy are not separate corridors of action but, rather, instruments to be orchestrated.
The ultimate objective of counter-terrorist strategy is not the incarceration of every self-proclaimed martyr--there are simply too many. Neither can the objective be to end terrorism or deliver a knockout blow to some distant evil empire. Instead, the objective is to isolate terrorists, encourage international cooperation and disrupt terrorist operations--a more sophisticated response to achieve more realistic goals.
Brian Michael Jenkins, a senior advisor to the president of RAND Corp., served as an advisor to the National Commission on Terrorism.
This commentary originally appeared in Los Angeles Times on January 7, 2001. Commentary gives RAND researchers a platform to convey insights based on their professional expertise and often on their peer-reviewed research and analysis.