A Special TRAC Report:
Criminal Enforcement Against Terrorists
A word about the data
Many Investigations But Few Referred for Prosecution
The FBI now reports conducting more than 10,000 terrorism investigations a year. (See table.) By contrast, just released Justice Department data show that in the fiscal year ending September 30, 2001 that all the criminal investigative agencies of the government asked federal prosecutors to bring criminal charges against 463 individuals who the assistant U.S. Attorneys had identified as being involved in either international or domestic terrorism.
The gap between the reported investigations and referrals for prosecution would appear to document a major challenge facing law enforcement in its attempts to prevent terrorism and punish terrorists.
Referrals for Prosecution Up Sharply Even Before September 11
The Justice Departmentís internal administrative data -- unlike the information reported by the FBI -- distinguish between international and domestic terrorism. Investigative requests for prosecution increased substantially in FY 2001 -- particularly for international terrorism -- but still represented only a tiny fraction of all federal criminal matters:
In FY 1997 there were 48 referrals for prosecution involving international terrorism. For the next three years, the numbers remained relatively steady-- 33 in 1998, 60 in 1999, and 40 in 2000. They jumped to 204 in 2001 -- 124 out of the 204 occurred before September 11. (See graph and table.)
There were somewhat more referrals against those suspected of domestic terrorism during the same period: 147 in 1997, 166 in 1998, 187 in 1999, 194 in 2000 and 259 in 2001. A total of 214 out of the 259 occurred before September 11. (See table and graph.)
But Federal Prosectors Usually Decline To Bring Charges
The data also show that federal prosecutors declined to bring charges against more than two out of three of the criminal suspects who they themselves had classified as being involved in domestic or international terrorism.
Most of the suspects were referred to the prosecutors by the FBI.
Such matters made up only a very small part of the 681,000 criminal referrals of all kinds that the prosecutors said they had received from the investigative agencies during the five- year period. (See graph.)
But the events of September 11 -- and before that the bombings in Oklahoma City, Nairobi and Aden -- have made the processing of them a subject of major public concern.
The prosecutors cited many reasons for rejecting the recommendations of the investigators during the five-year period ending on September 30, among them Justice Department policy, the death of the defendant, and jurisdictional or venue problems. But the prosecutors said they had declined more than one third of the matters presented to them because the referrals lacked evidence of criminal intent, were of minimal federal interest, were backed up by weak or insufficient admissible evidence, or did not involve a federal offense. (See international and domestic tables for reasons.)
Curiously, sharp changes appear to have occurred in regard to the bringing of formal criminal charges against terrorist suspects during the last five years. Whether these changes are the result of new investigative practices, different prosecutorial procedures, modifications of the law or simply the mix of types of cases handled is not clear. Whatever the reason, while the proportion of domestic terrorism referrals that were declined was going up, the declination rate for international terrorism referrals was going down. (See graph.)
One perspective on the substantial number of terrorism referrals being turned down by federal prosecutors can be gained by considering the "declination rateĒ for other groupings. Under law and custom federal prosecutions have always
declined to prosecute a portion of the matters brought to them by the
agencies. The Justice Department data show, for example, that during the last five years one out of three referrals were declined by prosecutors. (See table.) Accordingly, the odds of declination for terrorism cases was twice as high since more than two out of three of these referrals were turned down by federal prosecutors during the same period. It must be assumed that collecting solid evidence about a terrorist is harder than for drug, immigration and white collar criminals.
Actual Federal Indictments Are Relatively Few
The number of actual indictments are dwarfed by the numbers of investigations and referrals for prosecution. This is because so few investigations result in actual referrals and because so few referrals then end up being accepted for prosecution by U.S. Attorneys. While small in number, trends for prosecutions of international terrorists were also sharply up last year: 8 indictments in 1997, 7 in 1998, 29 in 1999, 14 in 2000 and 57 in 2001. (See table.) Indictments for domestic terrorism in sharp contrast did not increase despite the rise in referrals. Domestic terrorism prosecutions were: 47 in 1997, 37 in 1998, 41 in 1999, 48 in 2000, 38 in 2001. (See table.)
Actual convictions are smaller than the number of prosecutions since about one third of indictments do not result in a conviction. This occurs for a variety of reasons, including the dismissal of the case or a not guilty verdict.
Which Communities Most Active?
Government referrals for international terrorism have been made to U.S. Attorneys all over the country. But six federal judicial districts stood out. From 1997 to 2001, the U.S. Attorney in the District of Columbia reported 67 referrals. Right next door, the U.S. Attorney in Eastern Virginia counted 29. Given the location of the government these counts are hardly surprising. New York South (Manhattan) reported 40. The last three standout districts were California Central (Los Angeles), Michigan East (Detroit) and Florida South (Miami). In Virginia East and Michigan East virtually all of the referrals came in 2001. (See table.)
The line-up of districts showing the most referrals for domestic terrorism for the same period looked strikingly different. California North (San Francisco) leads the list with 80 referrals, followed by Georgia North (Atlanta) with 51. Three other districts also had more than 40 referrals each: Tennessee Middle (Nashville), Texas North (Fort Worth) and Florida Middle (Tampa) (See table. For federal district boundaries, see map.)
International Terrorists Receive Light Sentences
News reports about high-profile cases leave the impression that extremely long sentences usually are imposed on all convicted terrorists. Justice Department data focusing only on international terrorists, however, suggest otherwise. Eleven of the 19 convicted terrorist where sentencing information was available, for example, received no prison time or one year or less. The median sentence -- half got more, half got less -- was ten months. The average time was much higher -- 65 months -- because a few people received very long sentences.
Domestic terrorists do receive heavier sentences. Only one in ten convicted domestic terrorists receive no prison time. The median sentence -- half got more, half got less -- was 37 months. But this is still less than the median sentence for drug offenses (45 months) or general weapons crimes (48 months ). Average prison sentences run higher -- 79 months (domestic terrorism), 69 months (drug crimes), 84 months (weapons crimes) -- because a small proportion of these offenders receive very long sentences. (See table.)
Dozens of Agencies Lead Terrorism Investigations
Federal prosecutors identified a surprisingly
wide range of investigative groups as the "lead agency"
in a terrorism investigation during the past five years -- from the U.S. Postal Service to the Commerce Department, from the Export-Import Bank of the United States to the Forest Service. But the Justice Department credits the FBI as being the lead agency in most:
The FBI was the lead agency in
almost 9 out of 10 of the 385 matters classified as involving international terrorism from 1997 to 2001.
In regard to domestic terrorism, the FBI was cited as the lead in seven out of ten of the 953 matters in the same period. (See table.)
The Secret Service and the Bureau of Alcohol, Tobacco and Firearms were the lead agencies in most of the balance of domestic terrorism cases.
What Constitute Terrorism Offenses?
The agencies of the federal government appear to define terrorism in several different ways. This lack of consistency may raise difficult legal questions when the government -- as is now planned -- starts investigating and processing terrorist suspects under different legal procedures than it applies to other suspects. The Justice Departmentís Executive Office for United States Attorneys (EOUSA) defines domestic terrorism as involving matters where individuals or groups seek to further political goals wholly or in part through activities that involve force or the threat of force. The EOUSA defines international terrorism in an even more circular way: a federal offense relating to international terrorism which impact on United States interests. [Source: Department of Justice internal database users' manual.] In 1999, the EOUSA said 59 domestic or international terrorists were convicted in federal court. The FBI, in its annual budget submission to Congress, claimed 103 terrorist convictions. It is assumed that the different counts for terrorism convictions may be explained by differences in what is being counted. The FBI, however, has not responded to a November 5 inquiry from TRAC requesting information on this question.
Federal prosecutors listed more than 40 specific statutes as the "lead chargeĒ in domestic terrorism prosecutions. The largest grouping -- about one third of the total -- involved explosives and weapons. Another group centering on threats against the president and members of a federal officialís family came to 14 percent of the total. The lead charge against three individuals concerned threats, interference and firearms on board aircraft. Two people were charged with violating certain prohibitions with respect to biological weapons. (See table.) A smaller number of lead charges were reported in connection with international terrorism cases. Here, 20 percent were charged with kidnapping or hostage taking, 12 percent with murdering U.S. nationals, 12 percent with being foreign agents, 8 percent with providing material support of terrorists and 4 percent with fraud and misuses of visas, etc. (See table.)
The changing number of referrals, indictments and convictions provides the public a narrow but imperfect way to measure the intensity of the governmentís overall effort to contain domestic and international terrorism. But there are several other indicators.
One such indicator is the annual number of special warrantsG the government obtains to conduct electronic and physical searches under the Foreign Intelligence Surveillance Act (FISA). According to a brief report that the Attorney General is required by law to submit to Congress each year, the number of FISA warrants granted in calendar year 2000 was 1,012. This total -- the latest available -- compared with 886 warrants in 1999, 796 in 1998, 748 in 1997 and 839 in 1996. The work under FISA is thought to mostly be carried out by the FBI. (See graph.)
Another measure involves FBI funding earmarked for fighting terrorism. According to a July report by the Congressional Research Service, the bureauís actual funding devoted to this purpose was $450.5 million in fiscal year 1998, $432.9 million in 1999, and $443 million in 2000. Funds approved by Congress for fiscal year 2001 were $527 million. The Research Service said in its July report that $565.5 million had been requested for fiscal year 2002. (See table.)
An annual count of the FBIís terrorist investigations -- submitted in recent years to Congress -- provides another activity gauge. There were 7,125 such investigations reported in FY 1997, 9,046 in FY 1998, 10,151 in FY 1999, and 10,538 in FY 2000. (See table.)