Post-9/11 Terror Prosecution Update

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In my short 9/11 aniversary article on fizzled "terror cell" arrests, I linked to the Syracuse University-based federal government information and watchdog group Transactional Records Access Clearinghouse's (TRAC) report on post-9/11 terror enforcement and busts from two years after 9/11; I missed their more current roundup and analysis.

The news isn't any better for those who insist America faces a real, serious, ongoing domestic terror threat and that empowered law enforcement post-9/11 is doing a great deal to curb it. Some results from TRAC's study: in the first eight months of FY 2006, federal prosecutors declined to pursue nine out of 10 referrals for international terror cases from federal investigative agencies (most likely indicating how lame and unlikely to succeed they thought such prosecutions would be, unless federal prosecutors are all Osama-loving America haters); and

five years after 9/11, looking at the 6,472 individuals….who were initially referred under the terrorist or anti-terrorist programs, only about one in five have been convicted…..

Despite the low success rate in obtaining convictions, the large absolute number of referrals coming from the agencies (nearly 6,500 of them) has resulted in a sizable number of convictions (1,329). For this group it is instructive to consider the penalties that were imposed:
* Only 14 (one percent) received a substantial sentence—20 years or more.

* Only 67 (5 percent) received sentences of five or more years.

* Of the 1,329 who were sentenced, 704 received no prison time and an additional 327 received sentences ranging from one day to less than a year.

A chart of results since 9/11 on federal criminal enforcement activity on all terrorism and anti-terrorism programs.

A similar chart on only "international terrorism" enforcement and arrests–showing 1,391 referrals for prosecution and 213 convictions, only 14 of which resulted in jail sentences of over five years. Remember 9/11–but don't forget some things we might learn from the five years since then, either.

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  1. Trying to evaluate terrorism as civil criminal problem won’t provide any meaningful information. Neither terrorist themselves, their goals and methods nor the means of apprehending them correspond to ordinary civil crime. Fighting terrorism differs from suppressing crime in several important ways.

    (1) Reaction versus preemption: Most criminal investigations begin after a crime has occurred. It is the actual crime (dead body, missing property, etc) that forms the strongest evidence in the investigation and prosecution. Investigations of terrorism, however, seek to preempt the commission of the crime itself. To compare prosecution and conviction rates of terrorist to civil criminals, we would have to compare prosecutions of civil criminal conspiracies in which the actual planned crime never occurred. Historically, such prosecution rarely succeed.

    (2) Rarity: Civil criminals are very common, terrorist are very rare. Bayes’ rule guarantees that any investigation system sensitive enough to find real terrorist will produce a significantly higher number of false positives. A successful and just anti-terrorist investigation system will scoop up many more harmless wannabes than it will actual terrorist.

    (3) Transparent investigations vs opaque investigations: In the criminal justice system, the defense and the public have the right to examine all the means and methods used in the investigation. In terrorist cases, much of the information may arise from classified sources. A decision not to prosecute may simply reflect a decision not to expose means and methods.

    The closest thing to prosecuting terrorist we have anywhere else in the justice system is the prosecution of spies. Historically, public prosecutions of spies is totally unrelated to the actual effectiveness of counter-espionage operations. Very few people were publicly prosecuted for spying in WWII, for example, yet the entire Axis spy network was rolled up or subverted long before the war ended. Conversely, public spy trials in the 70’s and 80’s did not reflect efficient counter-espionage against the Soviet Union and others.

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