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George W. Bush is a man who likes absolutes. He campaigned for president as the anti-Clinton, someone who knows what the meaning of “is” is. Osama is evil, wanted “dead or alive.” Taxes are bad. America is unique. God is great. So it was a bit of a shocker to hear the president’s defense against charges of corporate wrongdoing from the days when he wore his Texas oilman’s 10-gallon hat. “In the corporate world, sometimes things aren’t exactly black and white when it comes to accounting procedures,” he said, responding to questions about Harken Energy’s ledger sheets. That line didn’t go over so well. Even columnist Michael Kelly — not a man who usually makes his living by kicking conservatives — wrote in The Washington Post that Bush’s comment “turned out to be one of the least successful lines of defense since Al Gore hit upon the unfortunate idea of ‘no controlling legal authority.’” Others have been less generous. But instead of pillorying the president for his moment of moral ambiguity, maybe we can encourage him to see it as an opportunity for growth. Whether or not Bush broke the law or profited from shady dealings, and whether or not his words are a defense for what he did, he’s still right in principle — accounting rules aren’t always black and white. The trick is to get him to see that most other things in life aren’t, either. And there’s perhaps no area where he needs to start appreciating the shades of gray more important than the “war on terrorism.” In the post-Sept. 11 world of Bush — and his trusted attorney general, John Ashcroft — there are criminals, and there are terrorists. The former are despicable, to be sure. But they are common enough. With modest adjustments to the system — more death sentences, to start — we know how to deal with them. Terrorists are something different. They’re a new menace. They worship false idols. They threaten us all. As befits this clean dichotomy, there are clear consequences for being in one category and not the other. Criminals are defendants. Criminals go to court. Criminals can appeal. Terrorists are enemy combatants. Terrorists disappear into military brigs. Terrorists deserve no rights. It’s a nice distinction — call it the Texas terrorism two-step. Too bad it doesn’t work. ORDINARY CRIMINALS? To see why, just poke around the news from the last several weeks. Start nearby. The other week in Washington, D.C., a college student opened the door to his father’s car, sat in the driver’s seat, and tripped a bomb that came close to killing him. He has so far survived, and no one else was hurt. Terrorism? When a car bomb goes boom in a parking garage in the same city that is the nation’s capital, that sits across the river from the still-rebuilding Pentagon, that was targeted by another Sept. 11 airplane, and that suffered still-unsolved anthrax attacks, it sure feels like terror. But then there’s the catch: Law enforcement officials quickly ruled out terrorism, and are now looking for the victim’s missing half brother. Or what about Allen Iverson, the Philadelphia 76ers basketball star? Early in July, Iverson and his uncle were charged with going to an apartment to look for Iverson’s wife, forcing their way in, and threatening the people there after Iverson showed off the handgun in his waistband. He then allegedly called his wife (who was apparently with another man) and said to her, “Where are you at? I’m about to hurt somebody. … I’m going to make a [expletive] example out of him.” So that’s a domestic disturbance, right? Nope. Iverson has been charged, along with other crimes, with making “terroristic threats.” Pennsylvania defines that crime, in part, as “a threat to commit any crime of violence with intent to terrorize another.” It’s often a misdemeanor. And how about the attack on July 4 at the Los Angeles airport? Hesham Mohamed Hadayet walked over to the Israeli El Al Airlines desk and started shooting and stabbing. By the time a security guard shot and killed him, Hadayet had murdered two people and stabbed another. Hadayet was an immigrant from Egypt. He was religious. When police went to his home after the attack, they apparently found a bumper sticker stating “Read the Koran.” You’d think, after Sept. 11, that all sounds familiar. It certainly did to the Israelis, who instantly branded the attack as terrorism. But not the Americans. An FBI spokesman conceded that terrorism “certainly can’t be ruled out.” But that was as far as American officials would go. The Los Angeles Times reported that “government officials — from the White House and the FBI to the mayor of Los Angeles — all took the role of cautious jurists and insisted that they lacked the evidence to label [the attack] as terrorism.” Why? Because it seems that Hadayet was unconnected to any terrorism effort by a larger group, and that he was probably acting — in anti-Semitic and deadly fashion — out of frustration over his failing company and loss of his American dream. MIX IN A LITTLE TERROR These three incidents, of course, are not the only or most troubling areas where the crime/terrorism line starts to gray. There’s Richard “Shoe Bomber” Reid, still on trial for attempting to blow up an airplane. There’s John Walker Lindh, the “American Taliban,” who recently accepted a plea bargain with the Justice Department over his service to the Taliban. A plea bargain, mind you, that doesn’t include any charges that he was a terrorist. And there’s Zacarias Moussaoui, the alleged “20th hijacker” on trial in Virginia, who briefly tried to plead guilty in hopes of saving himself from the death penalty. Part of the reason for keeping terrorists out of the courtroom is the fear that our system of due process will not work when the defendant is bent on death (perhaps including his own) and destruction. Lindh’s plea bargain and Moussaoui’s attempt to admit guilt seem to indicate the opposite — that terrorists respond to the justice system just like ordinary evildoers. But while all those named here so far have been treated as criminals, not everyone has had that benefit. There’s Jose “Dirty Bomber” Padilla. There’s Yasser “Cajun Taliban” Hamdi. And there’s the gang at Guantanamo Bay. Padilla, Hamdi, the Guantanamo detainees, and who knows who else have been branded as terrorists, shunted off to military brigs, kept from lawyers, left to rot. Why? Padilla was put away after allegedly working on plans — plans he never carried out — for a bomb that would spew radioactive fallout, thus causing death and destruction. Now look at Moussaoui: He also was working on plans to cause death and destruction — maybe by hijacking a jet, maybe by poisoning Americans with a crop-dusting plane — that he never carried out. Moussaoui gets a trial; Padilla gets thrown into a military dungeon. Or compare Hamdi with Lindh. Both were captured by Americans on the battlefield in Afghanistan. Both were born in America, and thus have U.S. citizenship. Both are in jail. But a judge approved Lindh’s criminal sentence; Hamdi can’t even meet with his lawyer. LINES IN THE SAND If we really want to play the crime/terrorism game seriously, there are real distinctions that might be drawn. Maybe it’s the person’s motivation — say, to change government policy. Or maybe it’s the more actual mayhem produced, regardless of motivation. Or maybe we look at the means of the assault: Was it something that could cause massive destruction, whether or not it succeeded? Or the distinction could be based on a mix of these and a hundred other factors, like whether the person is a U.S. citizen. Where was the person captured? Who did the capturing? The point isn’t that the lines are apparent. The point is that they’re not. Rather than confront that ambiguity head-on, the Bush administration seems to be speaking in absolutes, but acting in the gray area. It’s doing this not only with its treatment of terror suspects, but also with its overall approach to fighting terrorism. Take President Bush’s “National Strategy for Homeland Security,” released on July 16. This is his master plan to coordinate the federal government — the military, the FBI, the Department of Justice, the Department of Homeland Security, and everything else — with the states, private industry, and the people to fight terrorism. The report’s section on law presents two faces on how to proceed. First, it states that “[w]e should guard scrupulously against incursions on our freedoms, recognizing that liberty cannot exist in the absence of government restraint.” It also speaks in several places about the “crimes” that the government will need to prevent and prosecute. Score one for the rule of criminal law. At the same time, the report has a section suggesting that we must “[r]eview authority for military assistance in domestic security.” Given that the current law on the issue, known as the Posse Comitatus Act, generally prohibits the military from acting within the civilian realm, a review can only mean considering plans to increase the military’s power to step in. To do what? Will the military have the power to arrest? To imprison? Will there be oversight by lawyers? By judges? Will their work be accompanied by the full panoply of constitutional rights? Or is the goal of bringing in the soldiers to capture “the enemy”? Who will decide which situations merit a call to the FBI director vs. a call to the Pentagon? My own inclination is to resolve the debate by prosecuting everyone pursuant to civilian authority, criminal statute, and due process. We have a Congress capable of passing new statutes, we have laws against terrorism on the books, we have national security courts, we have prosecutors with security clearances, we have FBI agents, we have police. We can use them. But maybe I’m wrong. After all, the answers to these questions aren’t easy. And they certainly aren’t black and white. Evan P. Schultz is associate opinion editor at Legal Times.

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