Q. The Nation recently declared the Justice Department is batting “0 for 5000” in convicting those arrested for terrorist activities. But the U.S. Department of Justice’s web site states that 364 individuals have been criminally charged in terrorism investigations in the U.S., and 193 have been convicted or pleaded guilty, a success rate of over 50 percent. Who is right? Is there a way of monitoring how well we are doing in the fight against terrorism?
This is a complicated question to answer, for at least two reasons. After 9/11, the definition of “terrorism” has been greatly expanded to include crimes that were previously considered simply criminal activities. After 9/11, the federal government has focused on prevention and disruption and it is very difficult to measure its success in avoiding future terrorist attacks.
Another complication is that there are many kinds of anti-terrorist initiatives. Each has its own measuring stick. To me there are at least four distinct situations in which we can evaluate results.
The first is in finding those responsible for planning the 9/11 attacks. To date no one has been convicted for those attacks.
The second regards the outcome from detaining 5,000 foreign nationals in the immediate aftermath of 9/11. This is what Georgetown Law School Professor David Cole is referring to in an article in The Nation. Of the 5,000 detained, three were charged with terrorism-related crimes. Of those, two were acquitted by a jury. A higher court recently overturned the conviction of the third.
The third regards the outcome from the detention in Guantanamo Bay Naval base of almost 800 people seized during the Afghanistan war. Here the situation is murkier because so few have been tried. In June 2004, the U.S. Supreme Court ruled that these detainees retain the right to counsel and to a trial.
The Guantanamo situation is unique in that the Bush Administration has labeled the detainees “enemy combatants.” As Time magazine notes, “No such category exists in international law…” Under existing international law someone taken into custody either is entitled to rights as a Prisoner of War under the Geneva Convention or to the rights of common criminals under domestic law. Until the Supreme Court decisions, Guantanamo detainees had essentially no rights. They were being held indefinitely, without trial, and without access to a lawyer.
Of the 800 or so individuals detained at one point or another at Guantanamo since 9/11, about 150 have been released to their homelands with no charges filed against them. Of these, as of July 2004, 12 were in being held in detention in their home countries.
The Supreme Court held that prisoners must receive an opportunity to challenge their detentions before a judge or other “neutral decision maker.” The Bush Administration quickly established Combatant Status Review Tribunals to determine whether the 585 detainees have been properly deemed unlawful enemy combatants. The definition of an unlawful combatant used by the tribunals is, “Any individual who was part of supporting Taliban or Al Qaeda forces or was associated with forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent acts or directly supported hostilities in aid of enemy armed forces.”
These tribunals heard about 30 cases as of the end of August. Three officers conduct the hearing. The detainee is given a “personal representative” who is neither a lawyer nor an advocate. The representative, a military officer, is required to pass along any incriminating evidence the detainee may tell him. The detainee may also be denied information about how, where, and from whom the information about accusations supporting the enemy combatant charge originated.
The Bush Administration has also established military tribunals to try Guantanamo prisoners for war crimes. The first full war crimes trial under this system is not scheduled to begin until December, but as of late September, according to the New York Times, “officials acknowledge that the process is in turmoil and say there will be substantial changes made in coming weeks to restore credibility”. Litigation challenging the tribunals from both inside and outside the military have been filed. The deputy chief judge of the Air Force filed a motion at the end of September urging the government to drop the process altogether and begin all over again using the military’s court-martial procedures.
The rules for these new tribunals “constitute a new body of law distinct from military, and civilian law.” In a court-martial, judge and jury are separate. In the proposed military tribunal system, they are the same. The presiding officer is the only lawyer. In the new system, witnesses can testify anonymously for the prosecution. In a court martial, an appeal to an independent judiciary is possible. Tribunal decisions may be appealed only within the military.
One of the Supreme Court cases specifically focused on the situation of Yaser E. Hamdi, an American citizen captured in Afghanistan who had been held incommunicado for more than two years in Guantanamo. The Supreme Court found that Hamdi had to be given a chance to challenge his detention. Rather than give him a hearing, the Administration negotiated his release on the condition that he renounce his American citizenship and return to his native country of Saudi Arabia.
The last category of anti-terrorism efforts is the ongoing work of the Justice Department (DOJ), which after 9/11 made anti-terrorism its number one priority. The analysis is complicated by the fact that after 9/11 DOJ created a new category called “anti-terrorism” and lumped terrorism prosecutions together with anti-terrorism prosecutions. The new category is very broad and not yet well defined, covering immigration, identity theft, drug and other cases brought by prosecutors “intended to prevent or disrupt potential or actual terrorist threats where the offense conduct is not obviously a federal crime of terrorism.”
Roger Morris, unit chief of the Joint Terrorism Task Force explains the new category this way. “We used to wait until the crime is committed. Now we’re trying to prevent it before it occurs.” The Justice Department notes that by charging potential or suspected terrorists with minor non-terrorism crimes they can get them out off the street or out of the country.
Evaluating how well DOJ has done to stop future terrorist attacks is impossible. Even evaluating the efficacy of its terrorist-related arrests is difficult. In January 2003 the Government Accountability Office (GAO) reported that the Justice Department’s classification system was flawed. The GAO concluded that DOJ “does not… have adequate management oversight and internal controls to ensure accurate and reliable terrorism-related conviction data”. Thus, “DOJ’s and the Congress’s ability to accurately assess terrorism-related performance outcomes of the U.S. criminal justice system will be limited.”
The GAO noted that at least 132 of the 288 cases (about 46 percent) it reviewed were misclassified as terrorism-related convictions in fiscal year 2002.
The best source for statistics on terrorist-related arrests is the TRAC project of Syracuse University. Until recently, TRAC had access to DOJ statistics. DOJ stopped supplying the data in way that allowed evaluations in 2004. Syracuse has sued. The case is pending.
TRAC found that in the two years since 9/11, prosecutions and convictions for terrorist-related activities had soared but the time served by those convicted was very brief. Federal investigators had recommended the prosecution of more than 6,400 individuals for terrorism and anti-terrorism activities. Of the 6,400-plus terrorist and anti-terrorist matters referred to prosecutors, about 3,500 were classified as involving actual acts of terrorism.
With regard to terrorism itself, in the two years after 9/11 there was a 3.5 fold increase in convictions but the number of individuals sentenced to 5 years or more actually decreased from 24 in the two years before 9/11 to 16 in the two years after. Of those convicted, one was sentenced to life while five received prison sentences of 20 years or more. Of the 184 convictions under the international terrorism category in those two years, 171 received either no prison time or sentences of less than a year. For those categorized as international terrorists the median sentence was 14 days. In other words, half of those convicted received sentences of 14 days or less.
The TRAC study found that U.S. attorneys declined 6 of every 10 terrorism referrals, and 3 of every 10 anti-terrorism referrals. Almost half were declined because there was little or no evidence of criminal intent.
One question that comes up repeatedly is whether terrorist-related convictions actually result in terrorists being imprisoned. Newspaper investigations as early as December 2001 have shown that many of the cases listed as terrorism-related seem to stretch the definition.
For example, federal authorities in New Jersey briefly boosted terrorism prosecutions to 67 in their state by including 65 men who attempted to cheat on an English-language exam.
The Des Moines Register discovered that of the 35 terrorist related cases in that state, “most defendants had questionable links to violent extremism.” Most were charged with fraud or theft and spent a few months in jail.
A mid-September review of cases by the San Francisco Chronicle states that out of more than 310 people charged, the Justice Department has won 179 convictions. Many of these have been for relatively minor offenses such as document fraud or immigration violations.
Some of those given long prison terms for terrorism would not have been included in that category prior to 9/11. In April 2003, 5 Ku Klux Klan members were declared terrorists for burning a cross in the front yard of three black men. The ringleader was sentenced to 14 years in prison. A Georgia man was sentenced for 6.5 years for detonating a pipe bomb in the then-empty car of his girl friend. A Texas convict who attempted to arrange the assassination of a federal judge in Colorado from his prison cell in Texas was charged with terrorism rather than conspiracy to commit murder.
 Financial Times. October 7, 2004. A German court dismissed the charges against two men who allegedly planned the attack when the U.S. refused to allow the men’s lawyers to question some of the detainees at Guantanamo. The U.S. trial of Zacarias Moussaoui, alleged to have been the 20th hijacker, has been delayed. In September, a three-member panel of the 4th Circuit Court of Appeals in Virginia ruled that Moussaoui had the right to gather information from “enemy combatant witnesses” in Guantanamo. To date the U.S. has refused to grant access to those detainees.
 David Cole, “Taking Liberties,” The Nation, October 4, 2004.
 At least 50 Muslim men have been detained as “material witnesses”, under a provision of federal legislation that allows detention of reluctant witnesses to prevent them from failing to appear at trial. Since 9/11, the Justice Department has used the law to detain people when it lacks sufficient evidence for an arrest. Records justifying the detentions are closed to the public, and many of the witnesses’ lawyers are under gag orders. Brandon Mayfield was detained as a material witness, as was Abdallah Higazy. Higazy is the Egyptian-born student who was arrested after a pilot radio was found in a New York hotel room he occupied on September 11, but charges against him were dropped when it was found the radio belonged to someone else. Anjana Malhotra, “Material Witness Law is Being Abused,” The Oregonian, May 27, 2004. In June 2003 a federal appeals court upheld the Justice Department’s secret detentions of more than 700 non-citizens who had committed immigration violations, even though none were ever charged with terrorism. PBS Newshour, Secret Arrests, June 20, 2003
 New York Times. August 25, 2004.
 New York Times. September 26, 2004.
 New York Times, August 22, 2004.
 Sometimes the situation becomes even more complicated because of the shift of those arrested from one venue to another. Ali Saleh Kahlah al-Marri was first detained as a material witness in December 2001. Then he was charged with lying to the FBI and credit card fraud. In June 2003 the Justice Department announced that it was dropping criminal charges against him. Instead, the U.S. military would hold him indefinitely without charges. ABC News, June 23, 2003. Al-Marri has yet to be granted access to counsel U.S. District Court for the District of South Carolina, Al-Marri et al v. Hanft, Civil No. 2:04CV2257.
 After a two-week delay, Hamdi was sent to Saudi Arabia on October 11. The delay was due to the Saudi government’s questions about restrictions imposed on Hamdi inside of Saudi Arabia, despite the fact that he was never charged with anything. Washington Post, October 12, 2004.
 U.S. Department of Justice, Statement of Mark Corallo, Director of Public Affairs, Regarding TRAC Study, December 7, 2003.
 U.S. Government Accountability Office, Justice Department: Better Management Oversight and Internal Controls Needed to Ensure Accuracy of Terrorism-Related Conviction Statistics, GAO-03-266, January 2003.
 Des Moines Register. July 18, 2004. “Because the Bush Administration is now withholding information that the government had previously released to the Transactional Records Access Clearinghouse (TRAC) it no longer is possible to determine the exact number of individuals who the investigative agencies recommended be prosecuted and who the prosecutorial categories as falling into one of two classifications, terrorism or anti terrorism.” Criminal Terrorism Enforcement Since the 9/11/01 Attacks. A TRAC Special Report. December 8, 2003.
 Richard Reid was sentenced to life in prison in January 2003 after trying to blow up plane by igniting plastic explosives in his shoe. He was subdued by fellow passengers on the plane.
 Knight Ridder reporters cite such examples as a passenger who got drunk on an international flight, a Mexican man who submitted a phony passport application, and a former court employee who shoved a judge. Mark Fazlollah and Peter Nicholas, “Justice Department inflates terror statistics,” Knight Ridder Newspapers, December 16, 2001.
 Michael Riley, “Feds hype conviction rate in terror fight, critics say,” Denver Post, December 8, 2003.
 San Francisco Chronicle, September 17, 2004.
 TRAC, Op Cit.