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Terrorism Prosecutions Drop
Analysis Shows a Spike After 9/11, Then a Steady Decline

By Dan Eggen
Washington Post Staff Writer
Monday, September 4, 2006

Justice Department prosecutions of international terrorism cases, which surged in volume after the Sept. 11, 2001, attacks, have nearly returned to the levels seen prior to the hijackings, according to an independent analysis of government data released yesterday.

The study of data by the Transactional Records Access Clearinghouse (TRAC), an affiliate of Syracuse University in New York, also showed that as many as nine out of 10 terrorism investigations do not result in prosecutions, that most charges are not related to terrorism and that only about a third of those prosecuted end up in prison.

The findings, based on data compiled by the Justice Department's Executive Office for United States Attorneys, echo previous analyses by The Washington Post and others showing that most defendants in terrorism cases are charged with crimes unrelated to terrorism and that many serve little or no prison time.

But the TRAC data provide new insight into the extent to which prosecutions surged immediately after the Sept. 11 attacks, only to return to the far lower levels of previous years.

In 2002, federal prosecutors filed charges against 355 defendants in international terrorism cases, the study said. By last year, that number had dropped to 46, fewer than in 2001. Just 19 such cases have been prosecuted so far this year, the study said.

The TRAC report called the decline in prosecutions "unexpected" and said it seemed to contradict regular warnings from the government that the threat of global terrorism is higher than before.

"Considering the numerous warning statements from President Bush and other federal officials about the continuing nature of the terrorism threat . . . the gradual decline in these cases since the FY 2002 high point and the high rate at which prosecutors are declining to prosecute terrorism cases raises questions," the report said.

But Justice Department spokesman Bryan Sierra said in a statement last week that the report contains "many flaws" and "misleading analysis." He said that sentencing statistics are not a good measure of the department's counterterrorism efforts, and that it is not surprising that many referrals from the FBI or other investigative agencies do not result in prosecutions.

"This report does not take into account the significance of the Justice Department's successful strategy of prevention through prosecution, which has helped protect this country from terrorists since the attacks of Sept. 11th," Sierra said. "The department will continue to employ this strategy and work tirelessly to prevent another attack on U.S. soil."

In effect, the dispute over the TRAC findings is the latest in a series of disagreements over the effectiveness of the Justice Department's anti-terrorism efforts, which can be measured in a number of ways. The TRAC study, for example, is based on month-by-month data compiled by the U.S. attorney's office and includes more than 6,400 referrals in "international terrorism" and "antiterrorism" cases since Sept. 11.

Attorney General Alberto R. Gonzales and other senior Justice officials, however, have frequently relied on a much smaller list of terrorism-related cases compiled by the Criminal Division, which as of June included 441 defendants and 261 convictions.

An earlier Post analysis of that list found that most of the defendants were charged with crimes unrelated to terrorism and that nearly half had no demonstrated connection to terrorists. Many were even explicitly cleared of terrorism links by the FBI or prosecutors, yet their cases were still tallied as terrorism-related convictions by the Justice Department.

The TRAC study found that prosecutors have declined to bring charges in about two-thirds of the nearly 1,400 international terrorism cases referred by the FBI and other agencies over the last five years, often because of weak evidence or a lack of evidence. In 2006, the rate has climbed to nine out of 10 referrals.

The study identified 213 convictions, including 123 defendants who were sentenced to prison. Many of the cases included non-terrorism charges, such as credit card fraud, immigration violations or money laundering.

Deputy Attorney General Paul J. McNulty, who released a "white paper" in June defending the department's counterterrorism record, has said prosecutors often must use minor charges to deal with suspects who may pose a potential threat.

Sierra reiterated that point in his statement: "Calling upon a wide range of offenses allows us to engage the enemy earlier than if we waited for them to act first, accomplishing the vital goal of disruption and prevention."

Bruce Hoffman, a terrorism expert and Georgetown University professor, said the drop in prosecution numbers makes sense and should not be viewed as a sign that the threat posed by terrorists within the United States is overblown. Instead, he said, it is probably a sign that federal prosecutors are "getting better at separating the wheat from the chaff."

"You want a balance between not looking under every bed but also guarding against real threats," he said. "Especially after 9/11, there was an inclination to just vacuum up everything. There may be a greater sense of discrimination now between what is and what isn't important."

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