Special Advisory

This report is embargoed until Monday, June 17 (6:30 P.M., Sunday)

Criminal Enforcement Against Terrorists
A TRAC Special Report Supplement
June 17, 2002

                                                              what do these counts mean?

This is an update to the December 3, 2001 TRAC Report examining criminal enforcement against terrorism. TRAC's earlier report summarized criminal enforcement under the Department of Justice's international and domestic terrorism programs during the last five fiscal years (October 1996 thru September 2001). This report updates these findings by examining what has happened during the six months following last September (October 2001 - March 2002).

This report is based upon an analysis of the referral-by-referral Department of Justice records recently released to TRAC after court litigation under the Freedom Information Act. Linked tables and graphs highlight major findings. These include separate table series that allow you to look at all agencies or examine the FBI alone.

For those wishing even more detailed information, these data have just been mounted on TRAC's subscription site and can be accessed using TRACFED's on-line query tools.

Referrals for Prosecution Up Sharply Since September 11

  Referrals for criminal prosecution of suspects for international terrorism recorded by U.S. Attorneys jumped to 85 in September 2001. While varying somewhat by month since then, they have remained at historic high levels -- October (77), November (57), December (57), January (83), February (76), and March (71). (See graph.)

  Referrals for domestic terrorism also rose in September and initially peaked in October where 90 potential defendants were referred to federal prosecutors. Referrals then fell off but again jumped in March 2002 to a new peak of 118. But all other months have remained higher than in the pre-September 11 period -- November (79), December (41), January (39), February (46). (See graph.)

But Federal Prosectors Still Decline to Prosecute Half

  In the post September 2001 period, of those referrals acted upon, federal prosecutors turned down roughly half -- declining 55% of international terrorism cases, and 46% of domestic terrorism cases. This is an improvement over FY 2001 where two in three were declined. However, FY 2001 figures were dominated by a particularly poor federal record on domestic terrorism cases where 81% had been declined. For international terrorism, the declination rate actually increased during the last six months [37% (2001) versus 55% (2002)]. (See graph.)

Compared to other types of cases, terrorism cases continue to be declined at rates higher than for other matters. For the five year period of FY1997-2001 one out of three of all referrals were declined by federal prosecutors. In the last six months the declination rate on all referrals was similar (32%). Why prosecution rates are lower for terrorism cases is not entirely clear. It may be assumed that even with the concerted focus on terrorism by federal agencies, collecting solid evidence about a terrorist may be more difficult than for many drug, immigration and white collar criminals.

  The prosecutors cited many reasons for rejecting the recommendations of the investigators. Lack of evidence of criminal intent and no federal offense evident are the two most commonly cited, accounting for one-third (domestic) to nearly one-half (international) of all declinations. Among other commonly used reasons are the request of the agency, Justice Department policy, minimal federal interest, or weak or insufficient admissible evidence. In just under one in ten, the reason given is that the suspect may be prosecuted by other authorities. (See international and domestic tables for reasons.)

Prosecutions and Convictions for Terrorism Lag Far Behind Referrals

Most of the matters that have been referred to federal prosecutors for prosecution since September have not been acted upon. Thus, the month-by-month number of federal prosecutions and convictions lag far behind the dramatic rise in referrals.

  Prosecutions which have been rising slowly jumped to 93 in March of this year. (See graph.) However, of these March prosecutions, 66 involved separate defendants in a single district who were prosecuted all on the same day. See note.

  Convictions naturally lag even farther behind, and those reflecting post-September 11 referrals are only just beginning to show up in any numbers in February and March. (See graph.) Many of convictions shown reflect matters that were referred long before September 11. See tables for international and domestic.

Terrorists Still Receive Relatively Light Sentences

News reports about high-profile cases leave the impression that extremely long sentences usually are imposed on all convicted terrorists. This is not the case.

 Sentences on referrals that were received since September 11are quite low. The median prison sentence -- half got more, half received less -- was 5 months for international terrorists and 3 months for domestic terrorists. Sentences ranged from no prison time to a maximum of 30 months. Post-September 11 referrals that have already made their way all through the courts may not be typical, since they represent cases which can be disposed of quickly. Many of these convictions were for immigration, ID and visa violations. (See table.)

  If you include pre-Sept 11 as well as post -Sept 11 referrals, the median sentence imposed for terrorism convictions during FY 2002 was 15 months for international terrorism and 18 months for domestic terrorism. Sentences ranged from no prison time to 5 years for domestic terrorists, and from no prison time at all to a life sentence for international terrorists. (See table.)

Referrals for Federal Terrorism Prosecution since September 11:
Tracking the Details

This section focuses in more detail on the referrals for prosecution that have been submitted to U.S. Attorneys since September 11. (For explanation of stages see flowchart.) A total of 945 referrals for prosecution have been recorded from September 11 through the first six months of fiscal year 2002 under the Department of Justice international and domestic terrorism programs. Referrals were fairly evenly divided between international terrorism (495 referrals) and domestic terrorism (450 referrals). Counts are based on a suspect-by-suspect, defendant-by-defendant basis.

Which Communities Are Most Active?

A surprising finding is that virtually every community in the country -- 87 federal districts in all -- have received one or more referrals for federal criminal prosecution under Department of Justice terrorism programs since September 11. Twenty-eight districts, representing every region in the country, had at least ten terrorism suspects referred for prosecution. For specific figures by federal district see table. For federal district boundaries, see map.

  The highest number of referrals under international terrorism were centered around the nation's capital -- Virginia East (47), Maryland (36), and D. C. (33). An additional 14 districts each had at least 10 referrals. Of these the top five included: California East (Sacramento) with 28, Iowa North (Cedar Rapids) with 22, Michigan East (Detroit) with 20, Pennsylvania East (Philadelphia) and California North (San Francisco) each with 16. While apart from D.C., New York South (Manhattan) had been the most active district during 1997-2001 (see earlier years), it was much less active than many other districts with only 11 referrals for international terrorism matters during the post-September 11 period.

  The district with the highest number of domestic terrorism referrals was also a surprise: North Carolina West (Asheville) with 68. See note. An additional eleven districts had 10 referrals or more. Of these the top five included: Virginia East (Alexandria) with 29, Tennessee Middle (Nashville) with 22, California North (San Francisco) with 17, New York East (Brooklyn) with 14, Texas West (San Antonia) with 13. California North was top district for the 1997-2001 period (see earlier years).

Over Two Dozen Government Bodies Lead Terrorism Investigations

Federal prosecutors identified a surprisingly wide range of investigative groups as the "lead agency" in a terrorism investigation -- from the U.S. Postal Service to the Commerce Department, from the Defense Intelligence Agency to the Transportation Department. For figures on each agency see table.

  The FBI was credited as being the lead agency in seven out of ten of these referrals. This represents somewhat of a decline in prominence from past years both for international and for domestic terrorism programs. In each program, FBI's dominence slipped by about 8 percentage points from the fiscal 1997 - 2001 period. For earlier years see: international, slipping from 87% to 79% of all referrals, and domestic from 70% to 62%.

  The Immigration and Naturalization Service is the agency which has the second highest level of activity with 10 percent of all referrals -- a much more prominent role than it has played in past years on the terrorism front. More of INS's 91 referrals (plus 3 from joint task forces) are for domestic (68) rather than international (23) terrorism, and a significant amount of its activity was concentrated in a single federal district -- North Carolina West (Asheville). See note.

  For international terrorism, after the FBI, the second most active agency was the Customs Service which made 26 referrals, followed closely by INS with 23 and the Internal Revenue Service with 20.

  For domestic terrorism, after the FBI and the INS, the next most active agency has been the Secret Service with 41 referrals, followed by the U.S. Postal Service with 18 (plus one from a joint task force), and the Bureau of Alcohol, Tobacco and Firearms with 9.

How Many Referrals Have Been Acted Upon?

  Overall, one third, or 328, out of the total of 945 referrals for prosecution for terrorism made since September 11 have been acted upon by federal prosecutors. On these 328, 183 prosecutions have been filed (see table) while for 145 prosecution has been declined by the Department of Justice or U.S. Attorney (see table). On the remaining two-thirds (617), federal prosecutors have not yet decided whether or not to prosecute.

  Twenty-percent -- 185 of these 945 referrals -- have been disposed of. Only 20 of these 185 have thus far resulted in a conviction. (See table on sentences.) An additional 19 have been processed through the courts but were dismissed; one was closed because it was removed to another court. As noted above, the remaining 145 were closed without any federal prosecution because the Justice Department or U.S. Attorney declined to prosecute.

What Crimes Are Found Under Terrorism Cases?

While all of these 945 suspects referred for criminal prosecution under DOJ terrorism programs, what they are specifically charged with varies widely. Information on lead charge is currently only available on the 328 post-September 11 referrals which have been acted upon by federal prosecutors either by filing a prosecution or by declining to prosecute.

The Justice Department’s 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 a circular manner as: a federal offense relating to international terrorism which impact on United States interests. [Source: Department of Justice internal database users' manual.]

Despite these DOJ terrorism program definitions, many criminal charges actually brought under the international and domestic terrorism programs in the last six months do not involve violent acts or even the threat of violence. The most frequent, in fact, appear to reflect technical violations including false statements on visa, id records, or other documents:

  A total of 33 different lead charges were reported in connection with international terrorism cases. Here, the largest number -- about a third -- involved terrorism of an unspecified nature, or providing material support to terrorism. Prosecutors declined the vast majority of these. The next largest group recorded a lead charge of fraud and misuse of id documents, visas and passports, etc. Most of these were taken to court rather than declined by federal prosecutors. Other frequently cited statutes included a number related to the destruction of aircraft or facilities, or threats related to aircraft (usually declined). Six related to some violation of immigration statutes. One involved the possesion or use of chemical weapons (prosecution was declined). Another, which was prosecuted, was charged with a violation of international emergency economic powers.

  During the last six months, federal prosecutors listed 26 specific statutes as the "lead charge” in domestic terrorism cases that were acted upon by federal prosecutors. The largest grouping -- about one third of the total -- involved false statements, often with respect to id, visa, and other documents. Most of these were prosecuted rather than declined. The next largest group related to threatening communications, against the President as well as others. On the majority of these prosecution was declined. Other statutes which were reported as the lead charge with some frequency included statutes involving terrorism of an unspecified nature, those involving explosives and weapons, and a number related to the destruction of aircraft or facilities, or threats related to aircraft. Five involved prohibitions with respect to biological weapons, or the possession or use of chemical weapons (on three out of these five, prosecution was declined). One person was charged with domestic terrorism under the statute guaranting freedom of access to clinic entrances. Another was charged with making obscene or threatening phone calls. Still another was charged under a federal old age and disability statute.

The composition of charges filed in the last six months is substantially different from those filed in the prior five years. For international terrorism, kidnapping, murder and hostage taking were the most frequent category of charges in prior years, while for the current period these did not occur. In contrast, the past six months showed a much higher concentration of charges for fraud and misuse of id documents, visas, passports, etc. than were seen earlier. The change in the domestic terrorism category reflects an increase in false statement types of charges in the current period compared with a relative decline in the use of weapons and explosives statutes. For specific charges during the prior five years see international and domestic.