A Special TRAC Report:
Criminal Enforcement Against Terrorists
<Read
It On The Syracuse University Website With Access To Tables &
Graphs>
Many Investigations But Few Referred for
Prosecution
The FBI now reports conducting more than 10,000 terrorism
investigations a year. (See table.)
By contrast, just released Justice Department data show that in the
fiscal year ending September 30, 2001 that all the criminal
investigative agencies of the government asked federal prosecutors to
bring criminal charges against 463 individuals who the assistant U.S.
Attorneys had identified as being involved in either international or
domestic terrorism.
The gap between the reported investigations and referrals for
prosecution would appear to document a major challenge facing law
enforcement in its attempts to prevent terrorism and punish
terrorists.
Referrals for Prosecution Up Sharply Even
Before September 11
The Justice Department’s internal administrative data -- unlike
the information reported by the FBI -- distinguish between
international and domestic terrorism. For both groups investigative
requests for prosecution increased substantially in FY 2001 but still
represented only a tiny fraction of all federal criminal matters:
In FY 1997 there were 48 referrals for prosecution involving international
terrorism. For the next three years, the numbers remained
relatively steady-- 33 in 1998, 60 in 1999, and 40 in 2000 They
jumped to 204 in 2001. All but 9 of these occurred before September
11.
There were somewhat more referrals against those suspected of domestic
terrorism during the same period: 147 in 1997, 166 in 1998, 187
in 1999, 194 in 2000 and 259 in 2001. All but 1 of these occurred
before September 11.
But Federal Prosectors Usually Decline To
Bring Charges
The data also show that federal prosecutors declined to bring charges
against more than two out of three of the criminal suspects who they
themselves had classified as being involved in domestic or
international terrorism. Most of the suspects were referred to the
prosecutors by the FBI.
Such matters made up only a very small part of the 681,000 criminal
referrals of all kinds that the prosecutors said they had received
from the investigative agencies during the five- year period. But the
events of September 11 -- and before that the bombings in Oklahoma
City, Nairobi and Aden -- have made the processing of them a subject
of major public concern.
The prosecutors cited many reasons for rejecting the recommendations
of the investigators during the five-year period ending on September
30, among them Justice Department policy, the death of the defendant,
and jurisdictional or venue problems. But the prosecutors said they
had declined more than one third of the matters presented to them
because the referrals lacked evidence of criminal intent, were of
minimal federal interest, were backed up by weak or insufficient
admissible evidence, or did not involve a federal offense.
Curiously, sharp changes appear to have occurred in regard to the
bringing of formal criminal charges against terrorist suspects during
the last five years. Whether these changes are the result of new
investigative practices, different prosecutorial procedures,
modifications of the law or simply the mix of types of cases handled
is not clear. Whatever the reason, while the proportion of domestic
terrorism referrals that were declined was going up, the declination
rate for international terrorism referrals was going down.
One perspective on the substantial number of terrorism referrals
being turned down by federal prosecutors can be gained by considering
the "declination rate” for other groupings. Under law and
custom federal prosecutions have always declined to prosecute a
portion of the matters brought to them by the agencies. The Justice
Department data show, for example, that during the last five years one
out of three referrals were declined by prosecutors.
Accordingly, the odds of declination for terrorism cases was twice as
high since more than two out of three of these referrals were turned
down by federal prosecutors during the same period. It must be assumed
that collecting solid evidence about a terrorist is harder than for
drug, immigration and white collar criminals.
Actual Federal Indictments Are Relatively
Few
The number of actual indictments are dwarfed by the numbers of
investigations and referrals for prosecution. This is because so few
investigations result in actual referrals and because so few referrals
then end up being accepted for prosecution by U.S. Attorneys. While
small in number, trends for prosecutions of international
terrorists were also sharply up last year: 8 indictments in 1997,
7 in 1998, 29 in 1999, 14 in 2000 and 57 in 2001. Indictments
for domestic terrorism in sharp contrast did not increase
despite the rise in referrals. Domestic terrorism prosecutions were:
47 in 1997, 37 in 1998, 41 in 1999, 48 in 2000, 38 in 2001.
Actual convictions are smaller than the number of prosecutions
since about one third of indictments do not result in a conviction.
This occurs for a variety of reasons, including the dismissal of the
case or a not guilty verdict.
Which Communities Most Active?
Government referrals for international terrorism have been made
to U.S. Attorneys all over the country. But six federal judicial
districts stood out. From 1997 to 2001, the U.S. Attorney in the
District of Columbia reported 67 referrals. Right next door, the U.S.
Attorney in Eastern Virginia counted 29. Given the location of the
government these counts are hardly surprising. New York South
(Manhattan) reported 40. The last three standout districts were
California Central (Los Angeles), Michigan East (Detroit) and Florida
South (Miami). In Virginia East and Michigan East virtually all of the
referrals came in 2001.
The line-up of districts showing the most referrals for domestic
terrorism for the same period looked strikingly different.
California North (San Francisco) leads the list with 80 referrals,
followed by Georgia North (Atlanta) with 51. Three other districts
also had more than 40 referrals each: Tennessee Middle (Nashville),
Texas North (Fort Worth) and Florida Middle (Tampa)
International Terrorists Receive Light
Sentences
News reports about high-profile cases leave the impression that
extremely long sentences usually are imposed on all convicted
terrorists. Justice Department data focusing only on international
terrorists, however, suggest otherwise. Eleven of the 19 convicted
terrorist where sentencing information was available, for example,
received no prison time or one year or less. The median sentence --
half got more, half got less -- was ten months. The average time was
much higher -- 65 months -- because a few people received very long
sentences.
Domestic terrorists do receive heavier sentences. Only one in ten
convicted domestic terrorists receive no prison time. The median
sentence -- half got more, half got less -- was 37 months. But this is
still less than the median sentence for drug offenses (45 months) or
general weapons crimes (48 months ). Average prison sentences run
higher -- 79 months (domestic terrorism), 69 months (drug crimes), 84
months (weapons crimes) -- because a small proportion of these
offenders receive very long sentences.
Dozens of Agencies Lead Terrorism
Investigations
Federal prosecutors identified a surprisingly wide range of
investigative groups as the "lead agency" in a terrorism
investigation during the past five years -- from the U.S. Postal
Service to the Commerce Department, from the Export-Import Bank of the
United States to the Forest Service. But the Justice Department
credits the FBI as being the lead agency in most:
The FBI was the lead agency in almost 9 out of 10 of the 385 matters
classified as involving international terrorism from 1997 to
2001.
In regard to domestic terrorism, the FBI was cited as the
lead in seven out of ten of the 953 matters in the same
period.
The Secret Service and the Bureau of Alcohol, Tobacco and Firearms
were the lead agencies in most of the balance of domestic terrorism
cases.
What Constitute Terrorism Offenses?
The agencies of the federal government appear to define terrorism in
several different ways. This lack of consistency may raise difficult
legal questions when the government -- as is now planned -- starts
investigating and processing terrorist suspects under different legal
procedures than it applies to other suspects. The Justice
Department’s Executive Office for United States Attorneys (EOUSA)
defines domestic terrorism as involving matters where individuals or
groups seek to further political goals wholly or in part through
activities that involve force or the threat of force. The EOUSA
defines international terrorism in an even more circular way: a
federal offense relating to international terrorism which impact on
United States interests. [Source: Department of Justice internal
database users' manual.] In 1999, the EOUSA said 59 domestic or
international terrorists were convicted in federal court. The FBI, in
its annual budget submission to Congress, claimed 103 terrorist
convictions. It is assumed that the different counts for terrorism
convictions may be explained by differences in what is being counted.
The FBI, however, has not responded to a November 5 inquiry from TRAC
requesting information on this question.
Federal prosecutors listed more than 40 specific statutes as the
"lead charge” in domestic terrorism prosecutions. The
largest grouping -- about one third of the total -- involved
explosives and weapons. Another group centering on threats against the
president and members of a federal official’s family came to 14
percent of the total. The lead charge against three individuals
concerned threats, interference and firearms on board aircraft. Two
people were charged with violating certain prohibitions with respect
to biological weapons.
A smaller number of lead charges were reported in connection with international
terrorism cases. Here, 20 percent were charged with kidnapping or
hostage taking, 12 percent with murdering U.S. nationals, 12 percent
with being foreign agents, 8 percent with providing material support
of terrorists and 4 percent with fraud and misuses of visas,
etc.
Other Indicators
The changing number of referrals, indictments and convictions provides
the public a narrow but imperfect way to measure the intensity of the
government’s overall effort to contain domestic and international
terrorism. But there are several other indicators.
One such indicator is the annual number of special warrants the
government obtains to conduct electronic and physical searches under
the Foreign Intelligence Surveillance Act (FISA). According to a brief
report that the Attorney General is required by law to submit to
Congress each year, the number of FISA warrants granted in calendar
year 2000 was 1,012. This total -- the latest available -- compared
with 886 warrants in 1999, 796 in 1998, 748 in 1997 and 839 in 1996.
The work under FISA is thought to mostly be carried out by the
FBI.
Another measure involves FBI funding earmarked for fighting
terrorism. According to a July report by the Congressional Research
Service, the bureau’s actual funding devoted to this purpose was
$450.5 million in fiscal year 1998, $432.9 million in 1999, and $443
million in 2000. Funds approved by Congress for fiscal year 2001 were
$527 million. The Research Service said in its July report that $565.5
million had been requested for fiscal year 2002.
An annual count of the FBI’s terrorist investigations --
submitted in recent years to Congress -- provides another activity
gauge. There were 7,125 such investigations reported in FY 1997, 9,046
in FY 1998, 10,151 in FY 1999, and 10,538 in FY 2000.
