A comprehensive and sometimes surprising portrait of the handling of criminal cases in the United States against individuals identified as international terrorists during the five years after 9/11/01 has emerged from an analysis of hundreds of thousands Justice Department records by the Transactional Records Access Clearinghouse (TRAC).
TRAC, a data research organization connected to Syracuse University, has been studying a wide range of federal agencies and programs for more than 15 years.
Among the key findings about the year-by-year enforcement trends in the period were the following:
In the twelve months immediately after 9/11, the prosecution of individuals the government classified as international terrorists surged sharply higher than in the previous year. But timely data show that five years later, in the latest available period, the total number of these prosecutions has returned to roughly what they were just before the attacks. Given the widely accepted belief that the threat of terrorism in all parts of the world is much larger today than it was six or seven years ago, the extent of the recent decline in prosecutions is unexpected. See Figure 1 and supporting table.
Federal prosecutors by law and custom are authorized to decline cases that are brought to them for prosecution by the investigative agencies. And over the years the prosecutors have used this power to weed out matters that for one reason or another they felt should be dropped. For international terrorism the declination rate has been high, especially in recent years. In fact, timely data show that in the first eight months of FY 2006 the assistant U.S. Attorneys rejected slightly more than nine out of ten of the referrals. Given the assumption that the investigation of international terrorism must be the single most important target area for the FBI and other agencies, the turn-down rate is hard to understand. See Figure 2 and supporting table.
The typical sentences recently imposed on individuals considered to be international terrorists are not impressive. For all those convicted as a result of cases initiated in the two years after 9//11, for example, the median sentence -- half got more and half got less-- was 28 days. For those referrals that came in more recently -- through May 31, 2006 -- the median sentence was 20 days. For cases started in the two year period before the 9/11 attack, the typical sentence was much longer, 41 months. See Figure 3.
From what is now known, it appears that well-placed undercover agents and extensive electronic surveillance can largely be credited with the recent apprehension in England of scores of suspects who authorities say were planning to blow up as many as ten airliners on their way to the United States.
These same investigative tools also appear to have been important in uncovering evidence indicating that a Pakistani charity may have been diverting funds originally contributed for earthquake relief to finance the planned terrorism attacks on the jumbo jets. In the United States, as well as England, details about investigations like these leading up to the filing of formal charges are usually not revealed, only occasionally becoming known during trial or as the result of later inquiries.
Essential though the use of secret agents and secret surveillance seems to have been in these related cases, the process now moves from what necessarily is one of the most hidden activities of any government to a much more public stage: the criminal prosecution, trial and sentencing of these suspects.
In the United States, partly because of this country's far more expansive freedom of information laws, quite complete information is available about the actual prosecution of virtually all cases, including those related to terrorism.
This report, based on detailed data obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys (EOUSA), mostly focuses on the use of the nation's criminal laws in the five years after 9/11/01 against over a thousand individuals who the government had categorized as international terrorists. See sidebar "About the Data".
Fully acknowledging that for a variety of evidentiary reasons terrorism cases are among the most difficult challenges faced by the government, the Justice Department data about the small and declining number of prosecutions and convictions and the resulting sentences for international terrorism raise a host of questions. Among them are the following.
The question of the basic competence of the Bush Administration in managing the overall response of the United States to terrorism has in recent months become a subject of debate for candidates of both parties. And the effectiveness and fairness of criminal enforcement in this area necessarily is a significant part of the whole effort. Several months ago, on June 22, the Bush Administration itself weighed into the discussion directly when the Justice Department issued what it called a "Counterterrorism White Paper." See About the Data for a discussion of the content of the white paper.
The Big Picture
The impact of the events of 9/11/01 on the United States is hard to exaggerate.
Within months, for example, the largest single re-organization of the federal government in more than forty years was underway as the Bush Administration and Congress began shaping the Department of Homeland Security. In the same period, the government and the airline industry agreed to a new program where federal agents would begin screening all passengers for weapons and certain kinds of explosives before they boarded their planes. And under then-secret orders from President Bush, the administration initiated or expanded new surveillance programs by the National Security Agency and the Treasury Department. Meanwhile, Congress began a long struggle to adopt a new body of law intended to profoundly alter the flow of legal and illegal migrants into the U.S. That struggle continues today.
And around the world -- in London and Madrid and Indonesia and Moscow -- terrorists set off powerful explosive devices. In addition to directly affecting all of the living and dying in these cities, the bombings have continued to dominate the evening news broadcasts and the morning papers and the minds of hundreds of millions of people on every continent.
Given the vast world-wide reach of the media, these developments and others have properly become an intricate part of an intense political debate in the United States and in many other countries about how best to deal with these terrifying attacks.
For the federal enforcement agencies, a very extensive effort was launched. As has been previously noted, this report focuses almost entirely on people the Justice Department thought to be international terrorists. But the government has developed a bookkeeping system to track a much broader range of activities concerning several other kinds of "terrorism" as well as what it calls "anti-terrorism." The official Justice Department definition of who is considered an anti-terrorist is elusive. Covered by this term, according to the government manual, are those who have been targeted on the grounds that charging them with any crime might "prevent or disrupt potential or actual terrorists threats." See Justice Department Program Categories. The counts of those tracked by the Justice Department do not include military detainees -- currently numbering more than 400 individuals -- who have been held in the U.S. facility in Guantanamo.
Since 9/11/01 the government has classified a very large number of individuals as either a "terrorists" or "anti-terrorists." The bulk of them, some 6,472 individuals, were referred during the two years following the 9/11 attack. Now five years since the attack, final outcomes have been determined on three out of four of these cases. See Figure 4 and supporting table.