Criminal Enforcement Against Terrorists and
Spies in the Year After the 9/11 Attacks

A TRAC Special Report
February 13, 2003

                                                              what do these counts mean?

Prosecutions Up, Sentences Down

In the twelve months following the 9/11/01 attacks, the prosecution of individuals charged with crimes the government classified as involving terrorism or internal security violations increased by a factor of ten, according to Justice Department records obtained by the Transactional Records Access Clearinghouse (TRAC).

But during the same period the records also show a significant decline in the prison sentences imposed on those convicted of these crimes.

Here are the numbers:

  In fiscal year 2002, federal prosecutors charged 1,208 individuals with a variety of crimes that they concluded were related to terrorism or internal security. This compared to only 115 such prosecutions in the previous year. (See graph.)

  In fiscal year 2002, the median prison term for these crimes was 2 months. The median term in the previous year -- half got more and half got less -- was 21 months. (See table.)

The soaring number of prosecutions and the declining length of sentences document a significant shift in the government's definition of what kinds of behavior will be dealt with under the terrorism and internal security umbrellas and which agencies will be called upon to handle these matters.

While these post-9/11 policy changes are notable because of the obviously grave nature of the underlying challenges, the matters the government classified as involving terrorism or security violations still represent only a tiny fraction of its overall enforcement activities. This means that, so far at least, predictions that the war on terrorism would drastically change the government's approach to crime have not generally come to pass.

Prosecutors Less Picky

The question remains: with no indications that the number of terrorists and spies operating in the United States increased ten times in the last year, why was there a ten-fold increase in such prosecutions?

The examination of the department data indicates that one big factor -- and this is hardly surprising -- was a basic change in how the government thinks about this area of enforcement.

Prosecutorial discretion. By law and custom, assistant U.S. attorneys have always been authorized to pick and choose which of the matters sent to them by the investigative agencies they will prosecute and which they will decline. Prosecutors routinely turn down tens of thousands of referrals each year on a variety of grounds such as the lack of sufficient evidence, agency requests, lack of resources or because the matter has been sent to another prosecutor for consideration. In the year after 9/11/01 there was a dramatic increase in the proportion of terrorism and internal security suspects that the prosecutors decided to bring to court. In FY 2002, two out of three (66%) such referrals resulted in formal charges. In the previous year, prosecutors decided that only one out of three (32%) of the matters should go to court. (See graph.)

Prosecution speed. A second indication of changing prosecutorial policies was the decline in the time that assistant U.S. attorneys took to deal with these matters -- from the date each one was referred by the investigators to the date it was in one way or another disposed of. In fiscal year 2002, the median time was a little more than two months, 71 days. In 2001, the median time for prosecution was just under a year, 361 days. (See table.)

Who Is Doing the Work?

A major change in the year after 9/11 was the rapid growth in the number of agencies -- to more than 20 -- that did the investigative work leading to prosecutions categorized as involving terrorism and internal security. The significant involvement of such a large number of agencies in this area -- many of them previously unheard from -- starkly contrasts with the pattern of the past.

In fiscal 2001, for example, the FBI was the lead investigative agency for 73 percent of cases prosecuted and 71 percent of the criminal convictions for terrorism/internal security matters. Last year, the FBI was the lead agency for only 31 percent of the prosecutions, and 29 percent of the convictions. For the first time, the Immigration and Naturalization Service (INS) could claim the distinction of being the lead agency with more cases than the FBI in terms of raw conviction numbers -- 116 for the INS, 114 for the FBI. The FBI, however, did still account for a greater number of prosecutions (377) than did the INS (314). See pie chart graphs comparing agencies for prosecutions and convictions.

Other new players now playing significant criminal investigatory roles were the Social Security Administration (SSA) with 272 prosecutions, the Department of Transportation (51), the Defense Department (40) and the Postal Service (37). See table.

Some of this shift reflects the Justice Department's expanded definition of terrorism. This expansion was formalized mid-way through FY 2002 when the department added several new categories to its list of what would be tracked as a "terrorism" matter. (See table.) The new tracking labels, however, were in significant part an official formalization of the kinds of cases that prosecutors were already treating under the terrorism umbrella. (See earlier discussion in TRAC's June 2002 report.)

Not surprisingly, given the sometimes ambiguous nature of the underlying events, the new rules have not been consistently applied by different prosecutors' offices around the country. Thus, INS cases that appear very similar are sometimes classified as international terrorism, sometimes as domestic terrorism, sometimes as anti-terrorism (immigration) and sometimes not under an terrorism category, but simply as an immigration case. Part of the problem is that some of the new terrorism categories adopted by the DOJ lack clearly defined objective criteria for making the required classifications.

[Note (2/21/03): A report issued February 19, 2003 by the General Accounting Office confirmed TRAC's findings on these classification problems, which TRAC first reported in its December 2001 report on terrorism, and discussed further in TRAC's June 2002 report.]

Perhaps the clearest illustration of this shift are the cases from the SSA which were credited with 294 referrals for prosecutions and 272 prosecutions in FY 2002. The SSA has had no such cases in previous years. According to news accounts, these matters often involved airport workers in the United States who had fake Social Security numbers, lied on security forms or had hidden a past arrest. One indication of the actual weight of the SSA's work is that the median sentence resulting from its convictions was one month. By comparison, the median sentence resulting from FBI investigations was 12 months. During the last year, the INS also cracked down on illegal aliens, some of whom were working in airports with false papers. Curiously, the median prison terms for INS terrorism convictions was 2 months. This compared to 18 months for INS convictions not involving terrorism.

Although a false ID case in some circumstances may be of great significance, these kinds of matters have never before been classified as terrorism.

The Bigger Picture

In the wake of 9/11, it was widely predicted that the war on terrorism would require drastic changes in how the federal government enforced the law. Looked at broadly, these predictions have not immediately panned out.

While terrorism prosecutions have jumped, they still made up only 1.3 percent of federal criminal prosecutions during fiscal year 2002. (See graph and table.) But prosecutions are only a part of the Justice Department's counter terrorism mandate. As discussed in the Justice Department's most recent budget statement, a very important first step in this area is to identify, assess and address potential terrorism threats. Recent news accounts indicate this assessment effort includes such duties as counting all the mosques and Muslims in different communities and trying to locate all of the Iraqi men now living in the United States. Building on such knowledge, the budget statement said the FBI and other agencies then work "to prevent, disrupt and defeat terrorist acts before they occur." One aspect of such preventive work, of course, involves "the arrest and prosecution of those who have conducted, aided and abetted those engaged in terrorist acts." Yet another is to "provide crisis management following acts of terrorism against U.S. Interests."

Information about the number of agents and other personnel needed to deal with all these new non-enforcement responsibilities is not available. But the broad sweep of the various terrorism mandates would suggest that even with increased funding the Justice Department would be hard pressed to meet its more traditional obligations.

  But Justice Department data show that federal prosecutions of all kinds have continued to increase from 90,832 in 2001 to 94,132 last year. (See graph and table.) Two-thirds of this growth occurred in non-terrorism areas.

The data do reveal that in the immediate months after 9/11 criminal referrals and prosecutions were down but that the volume rebounded fairly quickly. (See, for example, TRAC's June 2002 analysis showing this drop and then rebound for the FBI.)

Earlier TRAC Terrorism Reports
| December 2001 | June 2002 |

For more detailed information, TRACFED subscribers may use:
| TRAC terrorism database |