News that Citigroup is being eyed as a possible target in civil litigation by persons who have lost family in terrorist bombings caught our attention yesterday. We read of it in a dispatch by Robert Lenzner and Nathan Vardi in the October 18 number of Forbes magazine. They report that a Washington lawyer, Allan Gerson, “is eyeing” a suit against Citigroup and “has lined up as possible plaintiffs 450 people who have lost relatives or themselves been injured in terror attacks in Israel.”

These columns have tended to sympathize with big corporations facing the hazards, so common in America today, of getting sued for things that are other people’s fault. WorldCom goes under because of its own fraud, and New York State’s comptroller sues Citigroup and more than a dozen other New York banks – not because Worldcom’s failure was primarily their fault, but because the banks have deep pockets. And we’re no fans of fighting the war on terror with lawsuits rather than military action.

But we have learned to respect the sagacious Mr. Gerson, who has served in American government as a Nazi-hunter and as an aide to Ambassador Jeane Kirkpatrick. We first encountered him in Washington in 1995, when he was representing the husband of a woman killed in the Pan Am 103 bombing over Lockerbie, Scotland, in 1988. He was not with the band that sued Pan Am. His contribution was finding a way to pierce the sovereign immunity of Libya by working with Congress to make it easier for such suits to proceed.

Mr. Gerson won’t talk about the case he is reportedly contemplating against Citigroup, which also declined to comment, citing the threat of pending litigation. And it’s easy to imagine a defense argument for the New York banking company. After all, it was only months ago that the offices of Citigroup itself were being mentioned as among potential terrorist targets in News York. The company has a long-standing presence in Israel. When, in 2002, allegations surfaced in court that Saudi American Bank, in which Citi held a 20% stake, participated in fund-raising for the families of terrorist “martyrs,” Citi immediately moved to investigate and, when it couldn’t get answers, sold its stake.

But it’s also possible to imagine a line of attack by plaintiffs’ lawyers that would be something to reckon with. If Citi knew, or had reason to know, that the Saudis were entangled in terrorist activities, did the bank’s executives at some point face a choice between walking away from profitable business or looking the other way at the unsavory side of Saudi institutions and individuals? It is not difficult to imagine the litigation reportedly under consideration opening up a fruitful line of inquiry.

And illuminating the seriousness of war, in which, after all, America is now engaged. Our own thoughts go all the way back to Ex Parte Bollman, the great treason case in which the first chief justice of the United States, John Marshall, acquitted two of Aaron Burr’s confederates – characters named Bollman and Swartwout – of treason. For treason to have been committed, Marshall wrote, war had to have been levied. It wasn’t, so they were innocent. But then he wrote words that ring down through the centuries:

“It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country,” Marshall wrote. “On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”

No one is talking about Citigroup having committed treason, and Bollman was a case involving a federal prosecution, not a civil action. But we can’t imagine that those who treated with the Saudis will be able to take much comfort from Marshall’s language about “all those who perform any part, however minute, however remote from the scene of action.”

No doubt the coddling of Saudi Arabia by the Clinton administration and both Bush administrations would lead families of victims of terror to feel frustrated. If a lawsuit against Citi had any point, it would be to discourage American companies from doing business in realms such as Saudi Arabia, where support for terrorism is widespread. And it might have a political effect, as well. If the suit proceeds and Citi is found liable in this case, the company might under similar logic turn around and sue the American government for having failed to impose on Saudi Arabia the sanctions that it had imposed on other terror-sponsoring regimes like Iran and Iraq.

Our own sense of this situation is that the thousands of patriotic and terror abhorring shareholders and employees of Citigroup would be better off were American policy toward the Saudis set more sensibly in Washington, rather than by time-consuming and costly civil litigation. But it is not surprising that, in the absence of such sense from Washington, the privatization of counterterrorism policy proceeds apace.