We Need the Rule of Law, Not the Rule of War

HOW WE LOVE our country! For days now, we Americans, while mourning and shuddering, have felt the accumulating weight of our patriotic devotion. We are joined in the shocking recognition of what a rare and precious treasure is the United States of America. Our nation's sudden vulnerability makes us shrug off, just as suddenly, the habit of taking for granted its nobility. We see it in the throat-choking empty place of the New York skyline and in the gaping wound of the building beside Arlington Cemetery. We see it in the grimy faces of the resolute rescue workers and in the implication that doomed airline passengers fought back against hi-jackers. We see it in the splendid diversity of our features, our accents, our beliefs, our responses, even. Never has the national motto seemed more true: Out of many, one.

But so far our main expression of this intense patriotism has been oddly in tension with its inner meaning, for the thing we treasure above all about America at this moment is the way it measures its hope by principles of democracy, tolerance, law, respect for the other, and even social compassion. Our supreme patriotic gesture in this crisis has been a nearly universal call for war, and indeed, the growing sentiment for war, fueled by the rhetoric of our highest leaders, may soon be embodied in a formal congressional declaration of war. Before we go further, we should think carefully about why we are heading down this path and where it is likely to lead. Do the rhetoric of war and the actions it sets in motion really serve the urgent purpose of stopping terrorism? And is the launching of war really the only way to demonstrate our love for America?

First, let me state the obvious. The nearly worldwide consensus that the terrorist attacks on New York and Washington must be met with force is entirely correct. The network of suicidal mass murderers, however large and wherever hidden, must be eliminated. But force can be exercised decisively and overwhelmingly in another context than that of ''war.'' One of the great advances in civilization occurred when human beings found a way to channel unavoidable violence away from ''war'' and toward a new, counterbalancing context embodied in the idea of ''law.'' The distinction may seem too fine to be relevant in the aftermath of this catastrophe, but it is after catastrophe that the distinction matters most. The difference between ''war'' and ''law'' is not the use of force. The United States of America, with its world allies, should be embarked not on a war but on an unprecedented, swift, sure, and massive campaign of law enforcement. As the term ''law enforcement'' implies, the proper use of force would be of the essence in this campaign.

Why does this distinction matter? Four reasons:

War, by definition, is an activity undertaken against a political or social entity, while the terrorist network responsible for this catastrophe, from all reports, is a coalition of individuals, perhaps a large one. Law enforcement, by definition, is an activity undertaken against just such individuals or networks. By clothing our response to the terrorist acts in the rhetoric of war, we make it far more likely that members of groups associated by extrinsic factors with the perpetrators (Arabs, Muslims, Afghans, Pakistanis, etc.) will suffer terrible consequences, from being bombed in Kabul to being discriminated against in Boston. Furthermore, the rhetoric of war, as it falls on the ears of such people (a billion Muslims), makes it all the more likely that they will see America only as their enemy.

War, by definition, is relatively imprecise. Steps can be taken to limit ''collateral damage,'' but the method of war, in fact, is to bring pressure to bear against a hostile power structure by inflicting suffering on the society of which it is part. History shows that once wars begin, violence becomes general. As President Bush threatened, no distinctions are made. In law enforcement, distinctions remain of the essence. Law enforcement submits to disciplines that are jettisoned in war. Do we really have the right to jettison such disciplines now?

War, similarly, is less concerned with procedure than with result. More plainly, in war the ends justify the means. In law enforcement, the end remains embodied in the means, which is why procedures are so scrupulously observed in criminal justice activity. To respond to a terrorist's violation of the social order with further violations of that order means the terrorist has won.

War inevitably generates its own momentum, which has a way of inhumanely overwhelming the humane purposes for which the war is begun in the first place. In the death-ground of combat violence, self-criticism can seem like fatal self-doubt, so the savage momentum of war is rarely recognized until too late. The rule of unintended consequences universally applies in war. Law enforcement, on the other hand, with its system of checks and balances between police and courts, is inevitably self-critical. The moral link between act and consequence is far more likely to be protected.

What does winning a war against terrorism mean? How has hatred of America become a source of meaning for vast numbers whose poverty already amounts to a state of war? Must a massive campaign of unleashed violence become America's new source of meaning, too? The World Trade Center was a symbol of the social, economic, and political hope Americans treasure, a hope embodied above all in law. To win the struggle against terrorism means inspiring that same hope in the hearts of all who do not have it. How we respond to this catastrophe will define our patriotism, shape the century, and memorialize our beloved dead.