Comprehensive Justice Department data documenting the enforcement actions of the FBI from 9/11/01 to the end of June 2006 raise troubling questions about the bureau's investigation of criminal matters involving individuals the government has identified as international terrorists.
Although the FBI has many responsibilities in the terrorism area in addition to criminal enforcement — a major one would be the collection and analysis of intelligence — the investigation, prosecution and conviction of international terrorism suspects remains a core obligation.
The timely findings about the FBI's efforts in this area — based on authoritative data obtained by the Transactional Records Access Clearinghouse (TRAC) from the Executive Office for U.S. Attorneys (EOUSA) — include the following:
Federal prosecutors are authorized by department rules and custom to reject agency recommendations for prosecution when, for one reason or another, they decide that filing charges in a case is not appropriate. In a very general way, a smaller number of prosecutorial "declinations" would suggest a higher quality of investigative work. Surprisingly, however, when it comes to the FBI and international terrorism matters, the percent of those the prosecutors turned down in the last few years has been generally increasing and reached a peak of 87% in FY 2006. See Figure 1 and supporting table.
As a result of the decision of the prosecutors to reject so many international terrorism referrals, especially in the last few years, the annual number of these kinds of prosecutions is down. In the 2001/2002 period, the prosecutions increased from 53 to 118. But since then the trend has been mostly down, with only 19 in the first nine months of FY 2006. (It is estimated that the total of such prosecutions for all of 2006 will be about 25.) See Figure 2 and supporting table.
Prison sentences often are a good measure of the quality of criminal investigations, even though factors such as the actual penalties mandated by the law also can influence the resulting sentences. Because international terrorists presumably represent one of the most serious kinds of FBI criminal cases, the median or typical sentence for individuals the Justice Department has placed in this category is puzzling. In FY 2001, the median sentence — half got more, half got less — was 6 months. In 2004, the median hit the high point of the last few years, 41 months. But now, in FY 2006, the median has dipped to somewhat less than it was in 2001, five months. See Figure 3 and supporting table.
The FBI declined an opportunity to see the report in advance and to comment on its findings. The findings about the bureau's performance are based on case-by-case data collected by the EOUSA, which for thirty years has been the department's central source for such information. Although the bureau gave no reason for its reticence, the general political sensitivity of the subject and the fact that aspects of this kind of enforcement probably involve classified enforcement strategies may well have been factors in its decision to remain silent.
The official silence of both the prosecutors and the investigators means that many of the fundamental questions raised directly by the EOUSA data about the FBI enforcement actions cannot be answered. And other information available about the staff and enforcement priorities of the bureau raise additional questions.
One logical explanation for the small and declining number of international terrorism prosecutions might be insufficient staff. But in the period from 2001 through June 2006, the total number of full-time FBI employees has grown from 26,236 to 29,755. See Figure 4 and supporting table.
But the growth rate for intelligence officers, the group of FBI employees responsible for sorting out the wheat from the chaff in all the information collected by Bureau, has been much higher, more than doubling from 994 in 2001 to 2,104 in June 2006. See Figure 6 and supporting table.
Another possible explanation for the relatively few terrorism cases is that the gradually growing number of special agents are still being overly distracted by the bureau's traditional responsibilities.
While plumbing the depths of that possibility — competing enforcement goals — is not easy, the EOUSA data indicate that the FBI's involvement in several of its favorite long-term investigative subjects is substantially down.
For many years, for example, the FBI has served as the nation's primary investigative force when it came to white collar crime. But for cases classified this way by the Justice Department, prosecutions credited to the FBI went down substantially, from 5,031 in FY 2001 to an estimated 2,693 for FY 2006 (based on available figures for the first 3 quarters of FY 2006). See Figure 7 and supporting table.
And for organized crime, another long-term investigative favorite of the bureau, prosecutions generally declined, from 498 in FY 2001 to an estimated 163 for FY 2006. See Figure 9 and supporting table.
While filings credited to the FBI did in fact increase for some kinds of cases, the areas showing growth were generally much smaller than those showing a decline.
The bottom line: based on data for the first three quarters of FY 2006, the Justice Department is expected to credit the FBI with about one third fewer prosecutions of all kinds than it did in 2001 — 12,713 compared with 18,994 (see Figure 10 and supporting table). So with more special agents, many more intelligence analysts, and many fewer prosecutions the question must be asked: what is the FBI doing?
Examining the number and recent annual trends of FBI prosecutions — for international terrorism and other kinds of matters — is one way to examine the agency's performance. Another approach, more qualitative than quantitative, is to use the EOUSA information to determine the actual sentences that were imposed on the handful of individuals convicted in the first nine months of FY 2006 — the period ending on June 30 — whom the Justice Department had categorized as international terrorists.
The records show, for example, that in this period there were only 12 such convictions in the whole country. In one conviction, resulting from a plea agreement in Virginia East (Alexandria), the sentence was life. In a second, after a jury trial in Georgia North (Atlanta), the sentence was 336 months. But for the remaining ten, the sentences were a year or less. (In fact, according to the data, five of the convicted international terrorists were sentenced to no time at all. )
Because areas with a greater number of people naturally tend to have more crime than those with fewer, and investigative agencies try to deploy their investigators where the problems are, the distribution of all kinds of FBI convictions around the country tend to concentrate in federal judicial districts with the larger populations.
Curiously, however, not all big cities are equal when examined by this particular measure.
In terms of the absolute number of people, for example, California Central (Los Angeles) is the largest in the nation. When compared to other major cities on the number of all kinds of 2005 FBI convictions in relation to its population, however, California Central ranks very low, 2,525 per 100 million people. See Table 1.
On the other hand, the FBI's per capita conviction rate for Illinois North (Chicago) was considerably higher, 3,912 per 100 million.
Neither Los Angeles nor Chicago, however, came close to Ohio North (Cleveland) and New York South (Manhattan), large cities that both ranked in the top ten when it came to 2005 FBI convictions. Cleveland, for example, had with 8,041 per 100 million, three times more than were recorded in the Los Angeles area. And the rate for Manhattan was just a bit higher, 8,474.
The Long Term View
This report has so far largely focused on FBI enforcement and staffing trends from FY 2001 through most of FY 2006. Sometimes, however, a longer view can provide useful insights about the workings of a large bureaucracy. In different ways, the data document the shifting priorities of the bureau, the Justice Department, and the party controlling the White House and Congress. For this reason TRAC has developed a series of graphs, supported by relevant data, illustrating a variety of changes in the bureau from FY 1986 to FY 2006.
In regard to enforcement trends, the long-term data provide year-by-year counts, based on information from the Justice department, about the FBI's recommendations for prosecutions — known as referrals — for all kinds of criminal matters and for the resulting FBI prosecutions. Referrals are one measure of what the bureau's investigators are attempting to achieve. Prosecutions, on the other hand, are a measure of the judgement of the prosecutors about the FBI's investigative work. See Figure 12 and supporting table.
In addition to the overall counts, long-term FBI prosecution trends are presented about the prosecution of the following broad categories of criminal behavior: white collar crime, drugs, bank robbery, organized crime, civil rights and pornography. See Figure 13 and supporting table.