9/24/2011

By Daniel Michelson-Horowitz, J.D. Candidate

The 10th anniversary of the September 11th attacks passed a few weeks ago with solemn memorials, tributes, and name-readings. At Ground Zero, President Obama and President Bush, the two men whose presidencies have been shaped by the aftermath of the attacks, gathered to commemorate the occasion and dedicate the National 9/11 Memorial.[1] But while the attacks have affected our foreign policy and national psyche, they have also had a huge impact on our courts, which must now wrangle with classified information and expanded investigative tools, high-profile cases on the constitutional rights of detainees, and legal questions surrounding the execution of the “War on Terror.”

Each year, NYU’s Center on Law and Security publishes the annual Terrorist Trial Report Card (TTRC), a chronicle of statistics and news that helps evaluate how well the government performs in prosecuting suspected plotters and aiders. The TTRC also provides a window into the tools and laws the government uses when identifying, investigating, and prosecuting suspected terrorists, and trends in the nationality of defendants and the organizations with which they collude. This year’s report was published to coincide with the 10-year anniversary of the attacks,[2] and this post will identify some concerning trends in the prosecution of terror suspects.

Notably, this year’s report focused on the 578“jihadist” inspired cases filed since 9/11, out of a total of 1,054 “terror-related” cases.[3] It is especially ironic in light of the dominant popular news coverage of jihadist terrorism that nearly half of all terror-related cases arise from non-jihadists.

Overall Success and the Fallacy of Civilian Judicial Incompetence

In the ten years since the 9/11 attacks, 431 trials involving “jihadist” inspired crimes have been resolved. Of these, 376 defendants (87%) were convicted and 349 have been sentenced. Of the 204 resolved cases involving national security- and terrorism-related charges,[4] an identical 87% (177) of those cases have returned guilty verdicts. This 87% is about the same conviction rate as for all criminal trials.[5] Another 13 had their charges dropped, while 8 were acquitted, 5 had convictions later vacated, and 1 was declared a mistrial. While terrorism and national security convictions averaged a sentence of 14 years, a shocking 142 of all 349 sentences were under one year in length.

Some interesting conclusions are apparent from these statistics. First, nearly half of those accused of crimes that supposedly involve jihadist motivations are not charged with terrorism or national security offenses, and most of those convicted of these offenses receive short sentences. This suggests that the numbers of jihadist terror cases, and the perceived public threat of jihadist terrorism, is exaggerated in some part by relatively minor cases. In fact, the characterization of cases which involve no terrorism or national security charges as jihadist in nature is alarmist and a thinly-veiled attempt to gain exposure by responding to public demand for terror prosecutions.

Second, for all the hubbub of Republicans who complain that civilian courts cannot adequately handle terrorism trials, it seems that the courts have performed quite well in both serious and minor jihadist trials. It is, of course, unknown whether the conviction rate would have been higher in courts with higher security clearances or reduced evidentiary admission requirements. One could argue that prosecutors only bring solid cases to court, but this is hopefully true of all criminal trials. Indeed, prosecutors may be more likely to prematurely prosecute terror cases in order to gain publicity and eliminate the perceived threat before it comes to fruition, and the conviction statistics may thus be higher than expected (and reflect the reticence of juries to acquit terror defendants).  However, if the conviction rate for major and minor jihadist cases is the same as the overall national rate, then civilian courts have likely had little difficulty in resolving the logistics of classified evidence.

Material Support: The Debate Continues

The Material Support provision of the USA PATRIOT Act criminalizes support to groups designated as terrorist organizations.[6] Holder v. Humanitarian Law Project, argued unsuccessfully by Georgetown Law’s David Cole, held in June 2010 that the law could constitutionally ban training in international law and advocacy in coordination with designated organizations.[7]

Since then, civil libertarians have continued to argue that, regardless of its constitutionality, the material support statute as written is bad public policy that implicates several activities beneficial to US national security interests. In addition, opponents believe that the law is selectively prosecuted and that prominent politicians have violated the statute as written. In early 2011, David Cole and officials of the Bush administration sparred in editorial pages over speech in support of the Iranian opposition group, MEK. The issue surfaced again recently as a Virginia man was charged with material support for making a YouTube recruitment video,[8] and a Pennsylvania speakers’ bureau solicited paid appearances on behalf of MEK.[9]

The TTRC for 2011 shows that the government is increasingly relying on the vague requirements of the material support statute to prosecute terror suspects. While only 11% of cases in 2007 included a material support charge, nearly 70% did so in 2010 and 87.5% of 2011 cases thus far have included material support. Because convictions can result in up to 15 years in prison per count, and part of the statute requires no proof of the defendant’s intent that the support go to illegal activities, material support is a relatively easy way to sentence terror suspects to long prison terms. Indeed, material support charges have even included providing $300 to the Somali terror group Al Shabab.[10]

The increased reliance on material support shows the new role of the statute as a “catch-all” for terror prosecutions. Yet the basic assumption underlying the ban on support of a terror group’s legal activities – the fungibility of terror financing – is undermined by Congress itself. The same statute that the government claims bars human rights training specifically allows provision of medicine and religious materials. If Congress seriously believed that terror groups can easily transfer financial resources between legal and illegal activities, the statute would contain no exceptions. Given the high penalty for material support, more research on fungibility, and a higher level of mens rea, should be required for prosecution.

Conclusion

This year’s TTRC provides an excellent resource for those wishing to understand the changing dynamics of terror prosecutions. Unfortunately, the topic of terror prosecution has become ever more politicized. With a dose of the facts, I hope Congress and the Obama administration will change the rhetoric and the law to achieve their national security goals without sacrificing the rights of humanitarian organizations and terror defendants.