Terrorism Prosecutions—Reduction

As doubts mount about the United States’ effectiveness in combating terrorism, it has been found that terrorism investigations and prosecutions have waned in the United States. One-third of Americans, according to an AP-Ipsos poll, think “the terrorists may be winning,” and approximately half the American population “question whether the costs of the anti-terrorism campaign are too great, and even more say that thought has crossed their minds.”^[1] Furthermore, only forty-six percent of poll respondents are confident Osama bin Laden will be caught, which is a 21-point reduction from the 67 percent who were confident in December 2003.^[2] Furthermore, approximately fifty-seven percent of respondents feel that the country isn’t ready to face another major disaster, and only seventeen percent said that the idea never occurred to them.^[3]

Amidst these feelings, the “federal government has fallen back to prosecuting international terrorists at about the same rate it did before Sept. 11,” according to a study conducted by Syracuse University’s Transactional Records Access Clearinghouse [hereinafter TRAC].^[4] TRAC analyzed data from the Department of Justice’s Executive Office of US Attorneys, and it also found:

• In the eight months preceding May 2006, federal prosecutes declined to bring cases against more than nine out of every ten terrorism cases sent to them by the FBI, ICE, and other federal agencies;
• Nearly four in ten of the rejected cases “were scrapped because prosecutors found weak or insufficient evidence, no evidence of criminal intent, or no evident federal crime; and
• Since 9/11 only 14 people have been sentenced to 20 years or more in prison in terrorism cases, and of the 1,329 convicted defendants, only 625 received any prison sentence.^[5]

Justice Department spokesman Bryan Sierra, of course, disputes the validity of the report, saying that it is “irresponsible to attempt to measure success in the war on terror without the necessary details about the government’s strategy and tactics.”^[6] For example, Mr. Sierra says that prison sentences are not the “proper measure” of success, and what is more important is the ability to “detect, disrupt, and deter terrorist activities.”^[7]

A large component of the fact that terrorism prosecutions are down to 19 in the most recent period of study, from a high of 355 in 2002, is because—according to James Dempsey, policy director of the Center for Democracy and Technology—terrorism “is actually very rare – far more people are killed in ordinary street crime.”^[8] The General Counsel at George Washington University’s National Security Archive, Meredith Fuchs, suggests that the light sentences could mean that the United States is “catching people at the margins, not at the center of the plots,” which is something that we discussed in May, when we noted that targeting the fringes may actually be more of a concerted policy, rather than a quirk of fate.

TRAC also found that the Eastern District of Virginia, Alexandria division, “was by a huge margin the government’s favorite venue,” with more than a quarter of all prosecutions.^[9] This may raise Sixth Amendment questions because crimes are supposed to be prosecuted in the district wherein the crime was committed, and it also raises questions about whether the juries are more sympathetic to the government because of the proximity to the Pentagon. Furthermore, nearly 45 percent of cases brought in the Eastern District of Virginia resulted in convictions, while the national average was 20 percent.^[10] By comparison, in the next two most common venues, New York and Washington, DC, less than five percent of individuals were convicted in New York, and zero individuals were convicted in DC.^[11]

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[1] Will Lester, Doubts About War on Terror Growing, AP (via Fort Worth Star-Telegram), Sep. 3, 2006.
[2] Id.
[3] September 11 Anniversary Study, AP-Ipsos, Aug. 31, 2006.
[4] Michael J. Sniffen, Study: Terror Prosecutions Back to Pre-Sept. 11 Levels, AP (via Houston Chronicle), Sep. 3, 2006.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] TRAC, TRAC Reports: Criminal Terrorism Enforcement in the United States, Syracuse University, Sep. 2006.
[10] Id.
[11] Id.