After a surge, US terror prosecutions drop to pre-9/11 levels

With great fanfare, the federal government last March announced indictments against 19 people for "racketeering to support a terrorist organization." The allegation: They trafficked in contraband cigarettes and other items and sent some of the profits to Hizbullah in Lebanon, which the US calls a terrorist organization.

In the announcement, a US attorney said the terror fight is his office's No. 1 priority. But lawyers for some of those charged claim their clients had nothing to do with terror. At best, they say, their clients may have been involved in "nickel-and-dime" criminal activity.

The contrasting views of this case illustrate the difficulties encountered by the federal government in prosecuting terrorism. A new analysis of federal data since 9/11 also underscores the difficulties: It finds that the number of criminal prosecutions for international terrorism in the US has dropped sharply.

After spiking up in the aftermath of the attacks, the number of prosecutions started to decline in 2004 and now stands at pre-9/11 levels, according to a report by the Transactional Records Access Clearinghouse (TRAC) at Syracuse (N.Y.) University. In addition, the length of sentences served by those convicted of international terror-related crimes has dropped from a median of 41 months prior to 9/11, to 28 days in the two years following the attacks.

Analysts say one reason for the drop is the intensity of the law-enforcement activity in the immediate aftermath of the attacks, which then leveled off. Critics also point to the way the government conducts its homeland-security policy: They raise questions about the effectiveness of its current surveillance and intelligence operations, and also ask whether the threat of terrorism has been exaggerated.

The Department of Justice counters that the report "presents a misleading analysis," and it strongly objects to the suggestion that the threat of terrorism may be exaggerated. It says the TRAC report ignores the DOJ's "successful strategy of prevention through prosecution." "It is irresponsible to attempt to measure success in the war on terror without the necessary details about the government's strategies and tactics," said Bryan Sierra in a prepared statement.

The Justice Department says that by going after small offenses – such as fraud – it's able to disrupt terrorist activity. It declined to provide a spokesperson to address directly some of the issues raised in the TRAC report.

An independent review by the Monitor of dozens of cases categorized by the government as terrorism or terrorism-related supported the findings in the TRAC report. The Monitor review – which covered cases characterized by the Justice Department as successful terror prosecutions, as well as those included in the TRAC data – found many cases had tenuous connections to terrorism and resulted in little, if any, jail time.

For instance, the case of a Kentucky businessman who pleaded guilty to lying about selling forklift parts to an Iranian truck manufacturer was categorized as a successful prosecution related to "international terrorism." The businessman was sentenced to 50 hours of community service and a year of probation.

Other cases, like the Michigan cigarette smugglers, show a pattern of government overreaching, say lawyers for some of the defendants. For instance, they note that in the indictment, many of those named are not charged with an overt act of giving money to a terrorist organization – just associating with people who did.

"These guys have never contributed a dollar to Hizbullah and wouldn't in a thousand years," says James Burdick, who represents Majid Hammoud and his brother.

The terrorism cases that did result in longer jail terms (14 resulted in 20 years or more) were usually the result of a government sting operation, like the case of Shahawar Matin Siraj. He was convicted last May of plotting to blow up the Herald Square subway station in New York prior to the Republican National Convention.

"Had we not intervened, had we not put an informant next to them, would these really have been terrorist attacks? We don't know," says Brian Jenkins, a terrorism expert at the RAND Corp. in Santa Monica, Calif.

Jenkins and other terrorism experts say they're not surprised by the significant drop in terrorism prosecutions, in part because of the spike in the number of arrests in the immediate aftermath of 9/11.

"The FBI grabbed the good stuff quickly. People who were at risk of being deemed terrorists or were terrorists went underground," says Jonathan Winer, a terrorism expert in Washington. "It may well be that there's not a lot to work with now, only really hard cases with shards of information left."

That may figure into another TRAC finding: US attorneys declined to prosecute about two out of three cases (748 cases out of 1,391) categorized as "international terrorism" that were referred to them by investigative agencies. In the first six months of this year, nine out of 10 referrals were declined. "That's a very high declination rate," says Christopher Bebel, a former federal prosecutor.

At least one former FBI agent does not find it unusual that the US attorneys are declining to prosecute the vast majority of terrorism cases brought to them.

"Terrorism cases are a whole lot of work, and the likelihood of getting a conviction is very low," says Christopher Hamilton, senior fellow for terrorism at the Washington Institute for Near East Studies and the former chief of Palestinian investigations in the FBI.