Study: Terror prosecutions at pre-Sept. 11 levels

Explanations pro, con
Past critics of administration tactics found both favorable and unfavorable possible explanations.

The sharp decline in prosecutions may show that prosecutors have moved away from “all kinds of secondary infractions” they pursued early on, said Steven Aftergood, director of the Federation of American Scientists’ government secrecy project. Those early cases drew criticism that Arab-Americans were rounded up based on mere racial profiling.

The small number of long prison sentences shouldn’t be a surprise because “terrorism is actually very rare — far more people are killed in ordinary street crime,” said James Dempsey, policy director of the Center for Democracy and Technology.

Nevertheless terrorism poses a risk of catastrophic loss of life, “so agencies must pursue a lot of leads that do not pan out,” Dempsey added. “We can’t blame the FBI for pursuing those leads, but we can blame them and the Justice Department for arresting people and making a big media splash when things don’t pan out.”

Interpreting light sentences
Meredith Fuchs, general counsel at the National Security Archive at George Washington University, said the light sentences could mean “we are catching people at the margins, not at the center of the plots.”

“The surge right after 9/11 makes sense,” Fuchs added, “but the drop-off so quickly means either a lot of that post-9/11 activity was not necessary or that they haven’t identified key people or that key people in custody aren’t being prosecuted.”

At the penalty trial of al-Qaida conspirator Zacarias Moussaoui, the government acknowledged that it has captured most of the 9/11 ringleaders including mastermind Khalid Shaikh Mohammed and operations coordinator Ramzi Binalshibh. Although prosecutors suggested they might be charged somewhere someday, the government has never disproved persistent allegations they were tortured during interrogations overseas and thus cannot be tried in U.S. courts.

If prosecutions “have been compromised by unlawful interrogation or surveillance, that would be worse than ironic,” Aftergood said. “It would mean the government has performed in a self-defeating manner.”

Justice reported in June that 441 defendants were charged and 261 convicted or pleaded guilty in terrorism or terrorism-related cases from investigations conducted primarily after Sept. 11. Citing those figures, Sierra said the department’s strategy “has helped protect this country from terrorists since the attacks of September 11th.”

Unlike the data from the Executive Office of U.S. Attorneys, the June figures did not contain definitions of which cases were looked at. Former New York Times reporter David Burnham, TRAC’s co-director, said Justice officials refused to give TRAC the definitions used in compiling the June figures on grounds that might undermine anti-terrorism enforcement.

“An empirical study like TRAC’s cuts through the rhetoric, lets us see just how many terrorists are being brought to justice,” Aftergood said. “The data suggest that some of the official rhetoric is misleading.”

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