As Terrorism Prosecutions Decline, Extent of Threat Remains Unclear

The dramatic post 9/11 surge in prosecutions that the government categorized as terrorism has undergone a four-fold decline, according to TRAC's analysis of data from the Department of Justice. The data show that terrorism and internal security filings in court have dropped from an average of about 100 a month at their peak shortly after the attacks to a current level of just under 25 a month.

The most recent available information shows that in January 2010 there were only 11 such prosecutions while in February there were 13. The data on the instances of terrorism prosecutions for the nation as a whole are compiled by the Department's Executive Office for United States Attorneys (EOUSA) on the basis of data regularly submitted to it by each of the 94 U.S. Attorney offices.

The long, slow slump in these prosecutions during the last eight years contrasts starkly with what happened in the period immediately after the September 11, 2001 attacks when there was an extraordinary ten-fold growth spurt in these matters. In that short time prosecutions jumped from only 115 in FY 2001 (around 10 per month) to 1,208 (100 per month) the next year (see TRAC's earlier reports of December 2003 and September 2006 which examine these trends in terrorism enforcement after 9/11).

Figure 1. Number of Prosecutions for Terrorism and Internal Security

Figure 1 shows monthly trends during the Clinton, Bush, and Obama administrations. The bars represent the number of prosecutions for every month, while the superimposed line shows trends with the month-to-month fluctuations smoothed by a six-month moving average.

Explaining the Sharp Shifts

Increases and decreases in arrests or prosecutions in a particular criminal area often are not related to changes in the actual threat. Instead the shifts in official actions such as arrests or prosecutions are determined by the number of available investigators or the adoption of new enforcement policies.

Such policy changes have occurred in a dramatic way in the terrorism area. Here are the numbers. Before 9/11 the data show that U.S. Attorney offices were choosing not to prosecute 3 out of every 4 of the referrals for terrorism and internal security offenses that the federal, state and local investigative agencies were sending them. Immediately after 9/11, the prosecutors adopted a new policy and abruptly began filing charges in a majority of all the referrals that they had received. Since then, however, prosecutors have again become more selective, now declining to prosecute 4 out of every 5 of all the referrals the investigators have recommended.

Figure 2. Percentage of Terrorism and Internal Security Referrals Declined

Because there is no way to accurately measure the number of potential terrorist attacks that may be developing at any one time in the nation or the world, it is impossible to link the year-by-year changes in such prosecutions — first sharply up and then gradually lower — to the existence of any actual threats.

Public awareness of terrorism, however, has been considerably heightened in recent months by the failed December 28 attempt to blow up a Northwest Airline plane shortly before it was landing in Detroit and the more recent May 1 failure to set off explosives in a Nissan Pathfinder illegally parked in New York's Times Square.

The problem has been complicated by the fact that federal prosecutors are constantly changing the way they define which cases fall into the terrorism and internal security program areas. For example, in 2002 new categories were added for such crimes as terrorism financing and terrorism hoaxes, and in 2009 for terrorism-related export enforcement and critical infrastructure protection. Another difficulty was added when the terrorism class was broadened to include ordinary crimes picked up as part of terrorism enforcement investigations that did not even have an indirect connection to actual terrorism (see TRAC's previous report and alternative terrorism definitions). Note that the current report also includes what federal prosecutors define as "internal security" matters.

Keeping all those caveats in mind, however, it is still possible for the public, Congress and the agencies themselves to follow selected aspects of the way federal investigators, federal prosecutors and the courts deal with perceived terrorism threats — using the decades-old Justice Department management system created to track how the federal government enforces the law.

Here is how the system works. Under the department's long-standing procedures, every U.S. Attorney is required to record each instance when one of the investigative agencies refers a matter to federal prosecutors. For each matter, the U.S. Attorneys then keep track of any follow-up developments that occur. Because of special security concerns, however, information about the initial receipt of terrorism referrals are withheld from TRAC until they have in one way or another been acted upon. Was the matter, for example, declined for prosecution? Or did the referral from the agency ultimately lead to the filing of criminal charges in court, the finding of guilt or innocence, a specific sentence?

Given this limitation, here are some of the findings about terrorism enforcement that emerge from TRAC's analysis of the somewhat restricted case-by-case information obtained under the Freedom of Information Act:

  • The investigative agency referrals disposed of — about half (56%) were from the FBI — reached a high of 2,235 in FY 2003, held around 2,000 per year through FY 2006, and then began to drop. The projected number for FY 2010 — despite a major increase in the federal investigative agents working this area — is 1,231, about half the peak reached after 9/11 (see Table 1).

  • As noted above, the steep annual decline in federal prosecutions categorized as involving terrorism was much sharper than the drop in terrorism referrals. Here prosecutions peaked during FY 2002 and then have fairly steadily declined to one-fourth of the peak level (see Table 2).

  • The reason the number of prosecutions fell much faster than matters referred to the offices of the U.S. Attorneys is that right after 9/11 two out of three referrals were prosecuted (66%) but now only slightly more than one out of every five are being prosecuted (21 percent during FY 2009 and 23 percent so far in FY 2010 — see Table 2).
Disposed of
2000 289
2001 308
2002 1,133
2003 2,235
2004 2,020
2005 2,036
2006 2,095
2007 1,863
2008 1,574
2009 1,487
2010 (est.) 1,231

Table 1. Dispositions of Matters Referred from Federal, State, and Local Investigative Agencies (Terrorism and Internal Security Program Categories)
2000 75 229 25%
2001 115 250 32%
2002 1,208 624 66%
2003 899 1,372 40%
2004 762 1,275 37%
2005 771 1,268 38%
2006 624 1,457 30%
2007 505 1,284 28%
2008 424 1,100 28%
2009 287 1,095 21%
2010 (est.) 293 960 23%

Table 2. Actions Taken by Federal Prosecutors on Referrals Received (Terrorism and Internal Security Program Categories)