From the WSJ Opinion Archives
DISPATCH
Legal Battles
The Pan Am 103 fiasco shows why we need military tribunals.
The first point some of us made after the attack on the World Trade Center was the importance of treating it as an act of war. What we had in mind was the dangers of going into the fight relying on the tools of criminal justice and tort law. The reaction was born of years of watching in dismay the use of both criminal procedures and civil law against such terrorist nations as Iran, Cuba and, most spectacularly, Libya, whose agents brought down Pan American Flight 103 over Scotland in December 1988, killing 270. More than a decade later, the families of those victims are still waiting for justice.
A new book called "The Price of Terror" lays out the story of the Pan Am 103 case. It is written by Jerry Adler of Newsweek and Allan Gerson, a lawyer for some of the families of those killed in the attack (which, before Sept. 11, took the largest single terrorist toll on American civilians). If President Bush and Attorney General John Ashcroft want to make the case for putting Osama bin Laden and his confederates under the jurisdiction of military tribunals, they could send their critics a copy of this book.
Not that this is the intent of the authors, who submitted their manuscript before the Sept. 11 attacks. But they point out in a preface that it is hard not to be struck by the connections between the bombing of Pan Am 103 and the attacks on the Pentagon and the World Trade Center. They feel the story of the Pan Am case has much to teach.
It's not just, I take it, that it was mistake not to answer the downing of an American carrier carrying 259 passengers (11 Scots were also killed on the ground) with a military response of any kind. It's that the failure to respond militarily led the surviving families to pursue a long legal struggle that led to a humiliating quagmire.
Things started, as Messrs. Adler and Gerson tell the story, with the frustrating way in which consular officials and the State Department--and, for that matter, Pan Am--treated the families in the hour of tragedy. The legal struggle soon erupted in lawsuits against the airline for its alleged culpability in failing to secure the aircraft from terrorist attacks. Little wonder, given the incentives of our tort system, in which lawyers work on contingency fees that give them a percentage of any awards they win. The logic of this system turned America's most famous airline into a defendant in a case in which it was a victim.
Among those who recognized the absurdity of this was a Pan Am captain named Bruce Smith, whose wife, Ingrid, perished on Flight 103. He became the first to initiate a legal action against one of the terrorist states implicated in the attack, Libya, an action that changed the dynamic.
Mr. Smith's lawyer, Mr. Gerson, and his co-author, give an illuminating reprise of maneuvering the subtleties of the underlying theories of international law to expose Libya to civil liability.
Messrs. Adler and Gerson also give a glimpse of the swamp of the legal world. For at one point, Mr. Gerson resigned from the law firm with which he was affiliated after another lawyer with the firm, the celebrated former federal judge Abraham Sofaer, agreed to represent Libya. Eventually the firm returned the first installment of what could have been several million dollars in fees from Libya. Judge Sofaer left the firm and moved to California and a position in the Hoover Institution.
It is a riveting diversion in the case. It also debunks the notion that the officers of America's civilian courts have some higher sense of virtue than the Judge Advocate General officers who presumably will practice before secret military tribunals.
In the Pan Am case, the Clinton administration eventually capitulated to Libya's demand to move the criminal trial of two of its agents out of Scotland. Scottish judges sitting in the Netherlands tried the men instead, acquitting one. The one who was convicted was sentenced to about one month in prison for each person killed.
In theory, the conviction made it easier for a civil case to proceed against Libya, though first the brave families and determined lawyers had to find a way to overcome Libya's sovereign immunity. That eventually required Congress to pass a law, which it did with the Anti-Terrorism and Effective Death Penalty Act. Even if a civil court hands down a judgment, however the story isn't likely to be over. This was shown in two other cases, one won by the family of a New Jersey coed, Alisa Flatow, killed in an Iranian-sponsored attack in Israel, another by Brothers to the Rescue, whose pilots were trying to protect those escaping Castro's regime and were shot down by Cuba. When victorious plaintiffs tried to enforce judgments they'd won, they were opposed by none other than the Clinton administration itself. When Congress forced the issue, the administration used American taxpayer dollars to pay a part of the judgments against the two countries, so that the State Department could continue temporizing.
None of this book's sad narrative denigrates the heroism of the families of Pan Am 103, who pressed on for a measure of justice with such determination in the years since their husbands, wives, children and parents were killed.
The story as told by Messrs. Adler and Gerson is as moving as it is illuminating. But more than anything else, it is a reminder that at the end of the day there is no dodging the responsibility of a nation to answer an act of war with war. It has its risks, but so does not going to war. And war holds out the prospect of a victory that the civilized world is savoring today.
Mr. Lipsky is a contributing editor of The Wall Street Journal. His column appears Wednesdays.
