ACLU Says Skewed Statistics on Terrorism Prosecutions Show Credibility Gap

December 8, 2003 12:00 am

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WASHINGTON – A new study examining Justice Department terrorism prosecutions since 9/11 by a university-based data analysis organization dramatically diminishes the credibility of the Bush administration’s public claims of success in the war on terrorism, the American Civil Liberties Union said today.

“Through the misclassification of non-terrorism cases as terrorism cases, the Justice Department is able to tweak their record of success in the war on terrorism, and then use the resulting and undeserved kudos from Congress and the public to justify expansions of their surveillance and policing power,” said Timothy Edgar, an ACLU Legislative Counsel. “Congress must look into the Justice Department’s prosecutorial grade inflation.”

The ACLU’s comments come in response to the release today of a new report by the Transactional Records Access Clearinghouse, or TRAC, a Syracuse University-based data analysis organization that gathers and distills for the public a great deal of information on government staffing, spending and law enforcement.

The report focuses on records falling under two discrete administrative categories of federal criminal prosecutions: “terrorism” — which includes “domestic,” “international” and “financial terrorism” subcategories — and “anti-terrorism,” which includes prosecutions under laws not directly related to terrorism, but of suspects that the government believes have a connection to terrorism.

After 9-11, Attorney General Ashcroft announced this latter policy, which is not unlike the “arrest mobsters for spitting on the sidewalk” style of pretext prosecution used against organized crime in the 1960s. While the Department says this explains why it tags some cases with the terrorism label despite the lack of formal terrorism charges, the strikingly low sentences show that judges are not accepting that these cases have any connection to terrorism at all. Judges have wide discretion at sentencing and may consider evidence of terrorism that was not introduced at trial and that is not proved beyond a reasonable doubt.

The analysis drew concern from both Republican and Democratic Members of the Senate Judiciary Committee, which has oversight responsibility for the Justice Department. Senator Charles Grassley, R-IA, told the media that the report “raises questions about the accuracy of the department’s claims about terrorism enforcement.” And Patrick Leahy, D-VT, the ranking Democrat on the Committee, said the report “underscores concerns that I and others have raised about how the Justice Department approaches, handles and labels the cases that it calls anti-terrorism cases.”

Researchers at TRAC aggregated all prosecutorial data from September 11, 2001 to September 30, 2003, breaking it down into its component categories and subcategories, and compared it with pre-9/11 conviction and sentencing rates. The FBI’s response to the study questions some aspects of TRAC’s analysis, but not its underlying data. The ACLU said, however, that the raw Justice Department data revealed in the report, even without TRAC’s analysis, paints a startling and disturbing picture of statistical inflation, intended perhaps to bolster the Department’s image.

Indeed, the Department’s numbers have been featured prominently in major speeches and Congressional appearances defending the administration’s record in the war on terrorism – including a speech by President Bush at the FBI Academy in September, an appearance by Attorney General Ashcroft before the House Judiciary Committee earlier this year and in the recent Senate testimony of former Justice Department official Viet Dinh defending the administration’s record on civil liberties and security.

Among the report’s most significant findings: more than half of all 879 terrorism or anti-terrorism-classified convictions since 9/11 resulted in no jail time. Only 23 convicts received sentences of five years or more – and only five (including “shoe bomber” Richard Reid) garnered sentences greater than 20 years in prison.

The numbers were even starker when TRAC compared the conviction record under one subcategory, “international terrorism,” which would presumably encompass al-Qaeda-style conspiracies. Of the 184 international terrorism-classified convictions since 9/11, only three have received sentences greater than five years (compared incidentally to the two-year period before 9/11, which saw six such convictions). Remarkably, since 9/11, 80 international terrorism convictions resulted in no jail time and 91 received sentences of less than a year.

Among other things, this suggests that even successful prosecutions that the government claims are linked to terrorism are for very minor crimes and that the government’s reliance on aggregate numbers of terrorism convictions as evidence of success in the war on terrorism is misleading and throws doubt on the need for dramatically expanded surveillance and investigative powers.

Indeed, the ACLU said, the report raises serious questions about the premise of the Justice Department’s post-9/11 focus on preemption and prevention: how does aggressively prosecuting alleged terrorists who do not end up behind bars contribute to the interdiction of terrorist acts?

The TRAC report confirms previous exposés, most notably by the Philadelphia Inquirer earlier this year, which cross-referenced TRAC-collected information with specific court files. Among other findings, the Inquirer discovered that the New Jersey U.S. Attorney’s office had classified as “terrorist prosecutions” indictments against 65 foreign students who had hired stand-ins to take English proficiency tests, and that Texas prosecutors had similarly misclassified 28 cases involving undocumented immigrants working illegally at the Austin airport.

Notably, TRAC reports that by far the greatest number of terrorism/anti-terrorism matters (19.5 percent) have been dealt with – that is either referred by an investigative agency and prosecuted or referred and declined for prosecution – in the Eastern District of Virginia, often considered to be the most deferential court in the country to the government. Next highest – though far behind – is the Western District of North Carolina in Asheville with 3.9 percent.

The U.S. Attorney’s office in the Southern District of New York in Manhattan has only dealt with 1.9 percent of the terrorism/anti-terrorism cases, even though it has arguably the most experience with the type of international terrorists who would orchestrate another 9/11 and who, presumably, should be the target in the war on terrorism.

“This is a long, dense set of facts and figures that says one thing: the war on terrorism isn’t proceeding in the way that many of us thought,” Edgar said. “Crucially, it shows us that laws like the USA Patriot Act, which definitely make us less free, are also doing very little to make us any safer.”

To access the TRAC report, go to:

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