-Caveat Lector- From http://inq.philly.com/content/inquirer/2001/09/16/books/CARL16.htm }}}>Begin Sunday, September 16, 2001 An argument for fighting terror with restraint, law Terrorism and America By Philip B. Heymann M.I.T. Press. 179 pp. $35 hardcover, $13.95 paper No event is so utterly immediate, so nakedly emotional, as an act of terrorism. Suddenly bullets shoot past you at an airport, or the disco becomes a fireball, or - on the bloody day that redefined infamy - terrorists crash hijacked planes into office towers, killing thousands. The instant assault - on one's nerves, on one's sense of justice - remains whether you're on the front line or watching from afar. In the latter case, it may mean reading about an old man in a wheelchair thrown over the side of a cruise ship by Palestinians to certain death. Or getting notified by an airline that your daughter's flight has exploded in midair. Terrorism doesn't invite sober, analytic responses from those who experience it directly or near-directly. Rather, it drives many people to face what seems absolute evil - a titanic wrong done to innocents - and the insti nctive impulse for revenge that most civilized types temper in ordinary life. Two years ago, Philip Heymann, former deputy attorney general of the United States and a professor of law at Harvard, took on the daunting task of articulating how the United States should respond to such impulses in Terr orism and America. I reviewed it in 1999, and this sadly called-for second look includes parts of that review. In his study, Heymann offers a pointed message. Whatever an individual might feel in response to terrorism, he advises, a country must proceed with "calm common sense." The United States, he advises, must act "intelligently and dispassionately." "For democratic nations," Heymann explains, "the primary concerns in dealing with terrorism are to maintain and protect life, the liberties necessary to a vibrant democracy, and the unity of the society. . . . What is nee ded is a strategy, not unbridled anger." Heymann thus explicitly opposes those such as former Israeli Prime Minister Benjamin Netanyahu, author of Fighting Terrorism (1995), who see attacking terrorism as "the destruction of a deeply evil activity and of those w ho practice it - and who see the primary means to that destruction as simply unleashing the security forces of a powerful state." Terrorism and America continues to offer the clearest, leanest, most even-toned account yet published of U.S. policy considerations about terrorism. It's remarkably lawyerlike, terribly composed in its discussion of terro rism. It lacks the complex historical texture of Bruce Hoffman's Inside Terrorism or the probing philosophical reflections of R.G. Frey and Christopher Morris' Violence, Terrorism and Justice (1991). Rich in Beltway balan cing, its legalistic approach nonetheless fails to persuade that U.S. prosecution of terrorists "by the book" is the best policy. At the outset, Heymann lists a wide assortment of well-known domestic and international terrorist incidents that he repeatedly uses to illustrate points. The lengthy list provokes somber reflection in itself. The events include the bombings of the federal building in Oklahoma City and the 1993 attack on the World Trade Center; the assassination of Israeli Prime Minister Yitzhak Rabin and subsequent suicide bombing of Israeli b uses by Hamas militants; the Iraqi plot to assassinate former President George Bush in Kuwait, which triggered a 1993 cruise missile attack on Baghdad; the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland; the 1 985 seizure of the Achille Lauro cruise ship off Egypt and the killing of Leon Klinghoffer, pushed into the sea in his wheelchair; the bombings of the U.S. Marine barracks in Beirut and the Air Force complex in Riyadh, Sa udi Arabia; and the shooting of American tourists in the Vienna and Rome airports. Any revised edition presumably will include the U.S. Embassy bombings in Africa, the attack on the U.S.S. Cole in Yemen, and last week's B loody Tuesday. Heymann stresses in his opening chapter that defining terrorism legally is a necessary start. A finding of terrorism determines that the federal government will take the investigatory lead in a matter. He notes that "our federal statutes (18 U.S.C. 3077) define an 'act of terrorism' as any activity that involves criminal violence that appears to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by assassination or kidnapping." As Heymann expertly takes us through complexities of international terrorism, hostage negotiation, multistate cooperation, state-sponsored terrorism, preventive approaches, the role of the criminal justice system and the place of domestic intelligence-gathering, he's nothing if not a realist. He acknowledges, for instance, that a country's "no concessions" policy is rarely absolute, that international "legal" disputes are ultimately diplomatic, and that terrorism is sometimes politically successful. He cites t he Mideast and Irish peace talks as examples of negotiations spurred by terror, and the U.S. withdrawal from Lebanon after the 1983 bombing of the Marine barracks in Beirut as a terrorist victory. Heymann also superbly delineates how international law, particularly in regard to extradition and sovereignty, complicates cooperation between countries. He crisply shows that with a detailed account of the standoff that ensued between the United States and Italy after Oliver North got U.S. fighter pilots to force an Egyptian plane carrying the Achille Lauro terrorists to land in Sicily. (Italy's objections to the violation of its soverei gnty eventually led to the terrorists' going free.) Terrorism and America is best when it reads that way: Like a textbook explaining the inchoate quality of international law, long-arm jurisdiction over terrorists, old-fashioned aspects of domestic intelligence-gathering s uch as offering rewards, and Justice Department procedures (with the authority Heymann's former position gives him). It is weakest when it stretches that textbook "rationality" to suggest that tough U.S. prosecutorial action against terrorists, and "economic, diplomatic and travel sanctions" against state-sponsored terrorism, should for m the bulk of U.S. action as opposed, say, to aiming cruise missiles at Osama Bin Laden's Afghan cave until one finds him at home, or declaring war on the Taliban and destroying them. Heymann plainly prefers the United States' "by-the-book" stance to the British tendency to bend civil rights in pursuit of information. Yet he also seems to extrapolate from the desire to maintain constitutional rights at home to extending procedural rights to terrorists abroad, as when he criticizes Israeli and Spanish intelligence agents for assassinating terrorists who have killed Spanish or Israeli citizens. The most direct explanation of his judicial emphasis is this: "In terms of national well-being, the gravest national dangers from a terrorist act . . . are that the interplay of terrorism, public reaction, and governmenta l response may sharply separate one significant group from the rest of society, or severely undermine the nation's democratic traditions." A less policy-focused observer might counter that the gravest harm of a terrorist act is that it kills many people who deserved to live and devastates their loved ones. Speculative worries about the public fabric ought to come a bit down the line, perhaps after satisfying the survivors' felt need for justice by eliminating the perpetrators. Heymann's aloofness here toward real lives lost, of course, came long before Tuesday's mammoth deat h toll, and the elevation of terrorism to "acts of war." But it makes his priorities more chilly than convincing. For while Heymann writes early on that his book is about "common sense, about putting out fires with water rather than gasoline," the test of time suggests that overly civilized responses to terrorism only encourage it. Heymann criticizes Netanyahu for arguing that "nothing justifies terrorism . . . it is evil per se" and must be subjected to "unequivocal and unrelenting moral condemnation." Terrorists, in Netanyahu's view, have no right to fair procedural treatment. By rejecting fairness themselves, they render themselves fit to be identified, targeted and killed before they take more innocent lives. To Heymann, "excessive moralism is likely to get in the way of clear thought about what the United States should do" when responding to terrorism. Yet an ethicist would remind him that morality can never be excessive since it by definition captures precisely the right actions one should take, actions that law should encourage or at least permit. Similarly, historically minded scholars of terrorism might warn that our greatest danger is to turn legalistic along with Heymann and lose our moral outrage, our righteous fury. Then, for sure, terrorism will become just one more policy option among others. On this issue, debate will continue as long as terrorism persists. One doubts that Heymann, for all his worthy democratic ideals, would want to put the matter to a vote among those personally violated by terrorism. © Philadelphia Newspapers Inc. 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