PERSPECTIVE ON TERRORISM : We Know the Culprits; So What? : Meticulous legal work may dead-end in frustration. Retaliation sends a message, but not necessarily the right one.

The indictment of two Libyan intelligence officials for the sabotage of Pan Am Flight 103 represents a remarkable feat of investigation. It also illustrates a classic policy dilemma as the President now decides what to do next. Should we consider terrorism a crime or a form of warfare?

These are two different concepts with different operational implications. If terrorism is considered a criminal matter, we are concerned with gathering evidence, determining the culpability of the individuals responsible, and apprehending and bringing them to justice. Under this approach, an ideal outcome of the investigation into the sabotage of Flight 103 would be the identification of those responsible for placing the bomb aboard the airliner, their apprehension and trial, without political pretensions, for the premeditated murder of 270 persons.

Portraying and treating terrorism as crime has considerable acceptance internationally, and recent years have seen a number of successful convictions. In the trial of Nezar Hindawi, the man accused of arranging for his unwitting girlfriend to carry a bomb aboard an El Al airliner, British prosecutors were not only able to prove his guilt but also to demonstrate the Syrian government’s participation in the plot, thus making a powerful case for imposing diplomatic and economic sanctions on Syria.

Dealing with terrorism as a criminal matter, however, presents a number of problems. Courtroom-quality evidence is extremely hard to gather in terrorist incidents; the success of British and American investigators in the Flight 103 case is remarkable. And although U.S. law now extends jurisdiction to cover terrorist attacks against U.S. citizens abroad, it is not realistic to think that we can routinely identify and bring terrorists to trial. Moreover, the criminal approach does not provide a satisfactory response to a campaign of terrorism waged by a distant group or sponsored by another government. It is hard to believe, in the case of Flight 103, that the two Libyan suspects decided to carry out the operation on their own.

If instead we view terrorism as war, we are less concerned with individual culpability and more concerned with ultimate responsibility. Evidence need not be of courtroom quality; intelligence reporting will do. The focus is not on the accused individual but on the identification of the enemy, which can be either a terrorist group or its state sponsor.

The United States took this approach when it bombed Libya in 1986. The immediate provocation was Libya’s sponsorship of the terrorist bombing of a Berlin nightclub favored by American servicemen. Information gathered by U.S. intelligence provided the proof of Libya’s involvement although subsequent evidence suggested Syrian sponsorship.

If we had followed the terrorism-as-war approach in the case of Flight 103, we would have retaliated against Syria and against Iran, whose government reportedly promised prompt payment of the amount agreed upon for the operation. The indictment of the two Libyans now raises questions about the involvement of the two governments in the destruction of Flight 103.

It also points to one of the weaknesses of the military approach. A military response must be delivered soon after the terrorist incident that provokes it. Retaliation years after the event has little political appeal or punitive value. But immediate action means moving without complete information.

In the Berlin case, some believe we acted wrongly against Libya for an attack instigated by Syria. In the case of Flight 103, we almost attacked Syria and Iran for an attack carried out by Libyan officials. If one is continuously at war with terrorists and their state sponsors and sees them as a single foe, it makes little difference. That kind of simple, tough-minded logic would be difficult for the United States, operationally and politically.

Some argue that to simply sit here and take terrorist punches reveals impotence and invites further attack. In Washington, the bombing of Libya was seen as a success in that it discouraged Moammar Kadafi from continuing a campaign of terrorism against the United States. But if the recent indictments are correct, even after the bombing Libya was plotting the destruction of an American airliner.

So what are the President’s options? If he sticks with the terrorism-is-crime approach, the United States can request that Libya extradite the two for trial. Libya is unlikely to accede. We could try to apprehend the two if they ever leave Libya--a remote possibility. We could try military force to capture them in Libya but that is getting close to “terrorism is war.”

Instead, the President can seek international support in imposing further diplomatic and economic sanctions on Libya, as the West did against Syria in 1986. Or we can return to unilateral military action as we did in 1986, although that would seem inconsistent with a terrorism-is-crime approach.

What course the President ultimately takes will depend not on the policy option--crime or war--but rather on hard-nosed politics. What will the public demand? What will it support? What measure of international support can the United States count on? What effect will any contemplated action have on other American foreign-policy objectives--the peace talks, the return of the hostages?

The investigators have named the culprits. What to do about them remains a dilemma.