The Bush Justice Department may be correct that the federal lawsuit launched against the tobacco industry by the Clinton Justice Department is too weak to win, making a settlement the only realistic resolution. If so – and that remains to be proven – the Bush team must now demonstrate it knows the difference between settlement and surrender.

The federal action, initiated in 1999, followed the state lawsuits settled the previous year, in which the tobacco industry agreed to pay $246 billion over 25 years as compensation for state costs in treating smoking-related illnesses. The federal claims are similar, rising mostly from costs to Medicare and veterans’ health care programs, as is the allegation that the industry engaged in deceptive advertising about the addictive nature of tobacco.

The Bush administration has a valid point about the strength of the case – it has been weakened by a U.S. district court ruling that tossed out parts related to the government’s ability to recover costs. Two counts remain active, however, related to racketeering through deception.

It is understandable that the Justice Department would be wary of trying to win a case against major corporations with tools designed to dismantle organized crime syndicates, but that does not explain why the nation’s top lawyers would handle this so artlessly. Whining in public about the weakness of one’s case simply is not the way to get the other side to take settlement negotiations seriously.

This misstep is only part of a larger picture that suggests Big Tobacco is bigger than previously supposed. The scant funding the president included in his budget for this litigation suggests that there never was any intention of pursuing the case; the generous campaign contributions by the industry suggest a reason why.

Mr. Bush has been quite clear in his belief that our society is overall far too prone to litigation, but in this matter has yet to propose an alternative. The leading alternative is, of course, greater control of the tobacco industry by the Food and Drug Administration.

Health and Human Services Secretary Tommy Thompson said early in his tenure that he supported serious FDA regulation of the drug nicotine; now he qualifies that by saying he was speaking only for himself, not as the head of the nation’s most important health agency. It is time for the president to speak for himself and to say something other than that he thinks Americans sue too much.