THIS NEVER SHOULD HAVE HAPPENED

Tuesday, September 11, 3:30 p.m.

By Seth Gitell

This day will live in infamy. Like December 7, 1941, September 11, 2001, will go down in history as one of America’s most dreadful hours. Early reports say that as many as 10,000 people have been killed or injured in New York, where two planes, hijacked out of Boston, crashed into the twin towers of the World Trade Center.

Beyond the sheer horror of the day’s events, September 11 has something else in common with Pearl Harbor: both attacks on our country were expected and preventable. In short, this didn’t have to happen.

The Clinton administrations — and now the Bush administration — all but ignored the many warning signs and failed to plan adequately for a terrorist attack. America’s anti-terrorism policy, or lack thereof, led to this day. Bill Clinton presided over much of the purported “war on terrorism” that began after extremists first bombed the World Trade Center, in 1993. From that tragedy, as÷well as the 1995 Oklahoma City bombing, sprang the Anti-Terrorism and Effective Death Penalty Act of 1996. The weighty 89-page document can be read at http://usinfo.state.gov/usa/infousa/laws/majorlaw/s735_enr.htm. The efficacy of that voluminous law can now be judged by today’s results: as it turns out, the law isn’t worth the paper it’s printed on.

Exhibit A: the case of Stephen Flatow v. the Islamic Republic of Iran. Clinton’s anti-terrorism law allowed the families of terrorism victims to sue state sponsors of terror in civil court. Flatow’s daughter, Alisa, was a 20-year-old Brandeis student, studying abroad in Israel, when she died in an Islamic Jihad bomb attack. Flatow filed suit against Iran, under the terms of the new law, and presented evidence demonstrating that country’s culpability in his daughter’s death. In 1998, a federal court in Washington, DC, awarded Flatow $247.5 million in damages and ordered Iran to pay up. It never did, and when Flatow sought to recover Iranian property in the United States to make good on the judgment — common practice in civil cases — the American Justice Department intervened on Iran’s behalf. Justice Department lawyers warned in open court of the “foreign-policy consequences” of such a move.

Apparently, the State Department believed that allowing Flatow to collect on the judgment would have led to the injury of Americans. But now we may be seeing the consequences of not allowing Flatow to collect. By falling down on America’s anti-terrorism commitment, the Clinton administration sent the message that terrorists would not be punished. The Bush administration has continued Clinton’s policy in this regard. In recent months, the administration has considered becoming even more open to Iran. And Secretary of State Colin Powell made comments to that effect during his confirmation hearing.

Just as Clinton failed to deliver on his commitments to Flatow, so too did he let down those whose loved ones were aboard Pan Am 103, the international airliner blown up over Scotland in 1988. Speaking at the 1998 anniversary of the disaster, Clinton bit his lip and promised to bring those responsible to justice. After the event, Susan Cohen, whose 20-year-old daughter Theodora died in the crash, told me, “All he has is crocodile tears to share about this. What do I care about his emotions?” Ultimately, a compromise was forged that sent two people to the Hague for trial — and let Libya, and any other nation that may have assisted in the crime, off the hook.

Both the Flatow case and the Pan Am 103 disaster show how problematic it is to deal with political disputes in the courts. Treating acts of terror as normal acts of malfeasance is, to put it mildly, not a deterrent. If terrorists aren’t afraid of blowing themselves up in bombing attacks, they’re not going to worry about the receipt of legal briefs and prosecution (as fearsome as many of our Wall Street lawyers can be).

President George Bush has never before sent a clear message with regard to terrorism. During the presidential campaign, he vowed to end profiling — a tool terrorism experts say they need. But he’s generally failed to deal with Saddam Hussein’s knocking unmanned American surveillance planes out of the sky (as happened last month and this week). Bush will now have to confront the facts of almost a decade of failed American anti-terrorism policy. He will have to repair what Clinton wrought and face the consequences of bad decisions, not all of them his own. He will have to face this task without having served in the military — as his father did — and without the breadth of his father’s experience. Speaking today, he said that “we will show the world we will pass this test.” For all of our sakes, let’s hope he’s up to the task.