Where's the Terror?

Post-9/11 prosecutions end with a whimper


Many elements of post-9/11 law enforcement are supposed to be justified by a real, serious, ongoing threat of further domestic terror assaults. Without that threat, the ways 9/11 supposedly had to change law enforcement become meaningless—or sinister. So it pays, five years down the line, to recall some of the highlights of federal arrests and prosecutions of what were generally announced as domestic terror cells—organized groups in the U.S. who posed a serious, organized threat of committing terrorist acts, often in cahoots with overseas foes.

*The first big post-9/11 terror cell arrest, a mere week after the strike, was in Detroit. And it even ended up in two convictions for terror-related conspiracy. However, the case was rife with prosecutorial misconduct, was lame to begin with (despite assurances we were dealing with a "sleeper operational combat cell") and ended with the convictions overturned and the prosecutors indicted for lying to the jury in the case. The judge who overturned the two terror conspiracy convictions (out of four accused—a third got convicted on document fraud charges) said, "The prosecution materially misled the court, the jury and the defense as to the nature, character and complexion of critical evidence that provided important foundations for the prosecution's case," including identifying doodles as sketches of targeted planes and military bases. To boot, the main prosecution witness was a professional con man, and two witnesses who might have cast doubt on the government's case were deported before trial.

*One actual success, at least in terms of arrests and convictions that have not yet been overturned, was the takedown of the Lackawanna 6, a bunch of Buffalo-based Muslims. What they are guilty of is having attended an al Qaeda training camp, prior to 9/11. What they don't appear to be guilty of, by any evidence the government was able to present, was planning any terrorist act in the United States, despite long and intense FBI surveillance (brought to an end by direct order of President Bush, who wanted a collar, dammit.) Still, using the wonderful logic of post-9/11 terror-stopping laws and arrests, FBI agent Ed Needham, told the New York Times, "We were looking to prevent something. And we did. Obviously nothing happened. So we all did our job."

*Then there was the Lodi terror cell—a father and son team, with the son convicted in April (the jury deadlocked on dad, who then prior to retrial pled guilty to a non-terror related offense and had the terror charges dropped in June) based merely on a pair of mutually contradictory confessions in which the FBI agents supplied all the details, with no corroborating evidence for his alleged attendance at Pakistan terror camps or plans to commit terrorist mayhem in the U.S. An experienced FBI agent who was kept from testifying on their behalf called the interrogations at the heart of this case "the sorriest interrogation, the sorriest confession, I've ever seen."

*The March 2004 conviction of three Muslims in Virginia (part of an initial group of 11, many of whom pled out to lesser charges) for playing paintball in the woods—hyped by prosecutors as paramilitary training for jihad when combined with their connection with a Kashmiri separatist group that was not, at the time of their possible attendance at one of their training camps, even on the U.S. list of official terror groups (though it is now). Again, no convincing evidence of any specific plans to commit mayhem in America, as even the FBI admitted—saying the arrests were more "preemption"—a rather scary ground to criminalize playing paintball and supporting a foreign political cause.

*More recently, we've seen the June arrest of the hapless "Seas of David" group in Miami, who were induced by FBI plants to talk big about schemes to blow things up that they had no means to carry out.

*And who can forget the post-London "terror cell phone" of would-be cell phone resale entrepreneurs of the Arab extraction? Reports of this bust in the shadow of the "liquid bombs on a plane" scare indicated it was terror-related—and included breathless reports of airline passenger lists and info in their possession. (It turns out one of their mothers worked for a Jordanian airline and left them in the car.) The case has since fizzled into a collection of misdemeanor charges of giving names to cops differing from those on the suspects' identification papers. Alleged terror plots have been forgotten.

The big picture is no more impressive than these sorry anecdotes. Two years after 9/11, a Syracuse University-based federal government information and watchdog group called Transactional Records Access Clearinghouse (TRAC) did a thorough analysis of post-9/11 terror law enforcement, finding that

despite the three-and-a-half-fold increase in terrorism convictions [from the two years after 9/11 compared to two years before], the number who were sentenced to five years or more in prison has not grown at all from pre-9/11 levels. In fact, the number actually declined, dropping from 24 individuals whose cases began before the attacks to 16 after. What has jumped are the numbers of individuals convicted but sentenced to little or no prison time.

TRAC also found that many terror-related cases passed on to prosecutors by the feds were never acted on; "more than a third of them (34.9 percent) were rejected because the prosecutors decided they lacked evidence of criminal intent, or that there was minimal federal interest or that 'no federal offense was evident.' Another substantial number of referrals (14.9 percent) were declined because they were backed up by 'weak or insufficient admissible evidence.'" And remember, when the Justice Department crows about terror arrests and plays on our 9/11 memories, that two post-9/11 "terror" cases which resulted in significant prison sentences, according to TRAC,

included a Georgia man who was sentenced to 6 1/2 years for detonating a pipe bomb in the then-empty car of his girl friend and a Texas convict who attempted to arrange the assassination of a federal judge in Colorado from his prison cell in Texas.

A June 2005 Washington Post analysis of Department of Justice terror cases found only 39 legitimate convictions that had a clear terror or national security nexus; the median punishment (some indication of how serious courts ultimately considered their crimes) was 11 months.

None of this is proof that the country is not crawling with organized terror-planners, who may strike even while you are reading this sentence. However, when we look behind the headlines that attend an initial "terror cell bust," we don't seem to find any solid evidence that the country is harboring large numbers of terrorist conspirators—or if it is, that U.S. law enforcement is doing any good at capturing them, with or without post-9/11 law enforcement tools and emphasis.