Reports suggest Justice may use broad definition of ‘terrorism’

The federal government prosecuted international terrorism cases in 2006 at the lowest rate since the attacks of September 11, 2001. More significant, the number of prosecutions classified as "domestic terrorism" -- acts or plots such as the Oklahoma City bombing -- has remained relatively higher than the number of prosecutions for international terrorism -- acts or plots by foreign terrorist groups such as the attacks of 9/11.

Furthermore, two recent reports suggest that the Justice Department's definition of what constitutes a terrorism prosecution may be on the expansive side of the ledger.

The Transactional Records Access Clearinghouse, a nonpartisan research group that collects and analyzes official government records, has found that prosecutions for crimes that the Justice Department calls domestic terrorism increased sharply after the 2001 attacks on the World Trade Center and the Pentagon.

But unlike the prosecution of international terrorism cases, which have dropped precipitously in the years after 9/11, domestic prosecutions have decreased only about half as much, according to a TRAC study. In fiscal 2006, the last year for which complete data are available, the prosecution rate for domestic terrorism was two and a half times that of international terrorism.

The study's authors also found that the prosecution rate in a third category -- financial support of terrorists -- has declined in the past year but that the drop-off has not been nearly as significant as in the international terrorism category.

Taken together, the findings that more prosecutions are aimed at domestic terrorism and terrorist financing "presents a picture of the government's overall terrorism enforcement campaign that appears somewhat in variance with that emerging from the government's official statements, congressional testimony, and the resulting newspaper reports where the battle against international terrorism appears to dominate the effort," the study's authors wrote.

The researchers based their findings on "case-by-case data" obtained under the Freedom of Information Act from the Justice Department's Executive Office for United States Attorneys, which oversees all federal prosecutors. TRAC, which is supported by private foundations and research grants and is affiliated with Syracuse University, has published reports on terrorism enforcement trends since 2001.

The trends from fiscal 2002 to 2006 may reflect an overall shift in the Justice Department's terrorism enforcement priorities, the TRAC study authors wrote. In fiscal 2006, the government reported that it prosecuted 194 individuals for international or domestic terrorism or terrorist financing. More than half of those cases -- 104 -- were for domestic terrorism, which the government defines as a crime that occurs primarily in the United States, is violent in nature, and is motivated by an intent to coerce, intimidate, or retaliate against the government or the civilian population. Such cases do not involve foreign terrorist organizations. Of the remaining 90 cases, 49 were for terrorist financing and 41 for international terrorism.

The 194 prosecutions resulted in 133 convictions, the majority of which, 53 percent, were for domestic terrorism, the study found. About one-fourth of the convictions were for terrorist financing.

By contrast, in fiscal 2002, the government prosecuted 530 cases. Most of them, 355, were for international terrorism, while domestic cases, 162, accounted for 30.5 percent of the total. Of the total number of cases, the government obtained 266 convictions. Of those, about 35 percent were for domestic terrorism, but the vast majority, 65 percent, were for international terrorism. The 13 terrorist financing prosecutions that year resulted in no convictions.

Although the data seem to show that the government's criminal-enforcement activity for terrorism has shifted, it's not clear why this is the case or if it reflects a conscious policy change. The figures that TRAC studied show that conviction rates for domestic terrorism cases were higher than for international cases: In that five-year period, prosecutors won about 63 percent of the domestic cases and 54 percent of the international ones.

What is clear from the TRAC study, as well as from internal Justice Department audits, is that the government is counting as domestic terrorism some cases that appear to have little, if anything, to do with the kind of organized attacks perpetrated by Al Qaeda on 9/11.

For example, the TRAC study cites a November 2006 case that the government listed as a domestic terrorism conviction. Alvin Stanley Ellis was found guilty of making bomb threats against pharmaceutical companies in North Carolina and was sentenced to 27 months in federal prison, according to court documents.

However, Eric Goulian, the assistant U.S. attorney who prosecuted Ellis, said that the case was not tried as domestic terrorism. "Those words were not used," Goulian said in an interview. "It was tried as a bomb threat." The prosecutor described Ellis as a "disgruntled employee" who made false threats over the phone.

Debra Graves, Ellis's court-appointed defender, concurred that terrorism was not an issue at the trial. Asked why Ellis is apparently now being counted as a domestic terrorist, Graves said, "I have no idea. It makes no sense to me." Ellis is appealing his conviction.

Goulian said that the way a case is ultimately coded could depend "on how you want to define terrorism." He noted he has a pending case in which an individual is charged with involvement in a solicitation to blow up a courthouse. That could meet the government's definition of terrorism, because the act was aimed at a public institution.

But a recent analysis by the Justice Department's inspector general suggests that the government's accounting methods for a range of terrorism-related statistics are highly questionable and may present a distorted picture.

In February, Inspector General Glenn Fine released a study titled "The Department of Justice's Internal Controls Over Terrorism Reporting." Auditors identified 209 unique terrorism-related statistics reported by the department and its components -- which include the U.S. attorneys -- used to measure efforts to fight terrorism.

These included the number of individuals charged as the result of a terrorism investigation, the number of terrorism convictions, and the number of terrorism-related threats to people and cities. The IG found that most of those statistics couldn't be substantiated and that Justice was overstating its terrorism reporting.

In trying to determine whether these statistics were accurate, auditors discovered that the department's terrorism-accounting methods were "decentralized and haphazard."

Auditors concluded that the U.S. attorneys office had taken too broad a view in defining what crimes constitute terrorism, and had counted crimes that had no obvious terrorist connection but were prosecuted as a result of law enforcement efforts that the Justice Department broadly categorized as "anti-terrorism."

In one prominent case, only two months after the 9/11 attacks, Justice launched a work-site investigation at the nation's airports. Agents checked airport employees' immigration papers and arrested anyone who had used false documents to obtain employment. The arrests were included in the department's anti-terrorism statistics.

Auditors objected to that accounting.

"We are concerned that [the U.S. attorneys office's] view of the anti-terrorism category permits criminal cases arising from virtually any federal law enforcement effort, including immigration violations or border enforcement activities, to be categorized as anti-terrorism regardless of the actual circumstances," auditors wrote. "We do not agree that law enforcement efforts such as these should be counted as 'anti-terrorism' unless the subject or target is reasonably linked to terrorist activity."

Officials with the U.S. attorneys office objected to the auditors' interpretation of what should be included in their statistics. They contended that almost all of the defendants reported under the anti-terrorism heading were arrested during operations specifically executed to prevent terrorist attacks, or were handled through the department's joint terrorism task forces, which were expanded in the wake of 9/11.

Dean Boyd, the spokesman for the Justice Department's National Security Division, which oversees all terrorism enforcement activities, noted that many of the weaknesses in counting highlighted by the inspector general "were an outgrowth" of the wholesale reorganization that the department and the FBI underwent after the 2001 attacks.

The FBI has improved its internal controls over terrorism statistics since then, Boyd said. In the future, the department will not count as such cases that can't be directly linked to terrorism, he said.

Of the TRAC study, Boyd said, "We can't independently vouch for the accuracy of that data."