By Any Means Necessary
The American Lawyer
By David Bario
In June the U.S. Court of Appeals for the Fourth Circuit affirmed the conviction of Ahmed Omar Abu Ali, an American citizen charged in 2005 with supporting and conspiring with Al Qaeda in Saudi Arabia. The details of the case were chilling--. Ali had plotted to hijack airplanes, blow up nuclear plants, and assassinate President George W. Bush.
News coverage of the case was overshadowed by U.S. Supreme Court rulings on the habeas rights of Guantánamo Bay detainees, but the appellate court’s deci-sion was an unambiguous victory for the government. The three-judge panel not only affirmed Ali’s conviction, the majority also suggested that his 30-year sentence was too lenient. They dismissed the notion that Ali’s confession to Saudi authorities while in detention there was co-erced and therefore inadmissible. Abu Ali was “no idle planner,” the judges wrote. “His goals were of the most serious and heinous sort.” And the appellate court was unusually blunt in de-fending the judiciary branch’s turf. “There should be no disagreement,” the judges wrote, “that the criminal justice system does retain an important place in the ongoing effort to deter and pun-ish terrorist acts without the sacrifice of American constitutional norms and bedrock values.”
The Fourth Circuit was answering a question the Bush administration has grappled with since the 9/11 attacks: What is the appropriate role of the criminal justice system in fighting terrorism? That discussion has attracted far less attention than the battles over Guantánamo and detainee rights. And what little publicity it has received has come mostly after government stumbles-—allegations of prosecutorial misconduct in a Detroit “sleeper cell” case, for instance, or the gov-ernment’s failure to win a lengthy sentence for accused “dirty bomber” Jose Padilla. But the government has quietly put together a string of successes in terror prosecution-—and it has shown a determination to bring cases early, using indictments to disrupt suspected plots rather than simply punishing perpetrators after the fact. Prosecutors have shown that it’s possible to provide terrorism suspects with fair trials. And most importantly, they’ve achieved results: 145 defendants convicted through the end of 2007, resulting in prison sentences averaging longer than eight years, according to a recent study. “By any reasonable measure, if you look at the cor-pus of major terrorism cases since 9/11, the government has had a pretty successful track re-cord,” says David Laufman, the lead prosecutor in the Ali case.
But the era of proactive terror prosecution may be coming to an end. In recent years there has been a subtle shift away from prosecuting terror suspects, in favor of sustained intelligence-gathering operations. Some prosecutors complain that they are being discouraged from bringing early charges to disrupt crimes that may be precursors to overt acts of terror--—placing the pub-lic at greater risk.
In counterterrorism, there has always been a tension between prosecution and intelligence-gathering. What worries prosecutors, though, is the prospect of changing a balance that they say is proving to be effective.
Before the fall of 2001, the undisputed center of gravity for federal law enforcement’s antiterror-ism efforts was New York. A small cadre of federal prosecutors in Manhattan, led by then–U.S. attorney Mary Jo White, amassed a perfect record in prosecuting accused terrorists. Backed by the Federal Bureau of Investigation, the office won convictions against more than 30 defendants in eight years, including those involved in the bombing of the World Trade Center in 1993 and the attacks on U.S. embassies in Africa in 1998. In trials in 1995 and 1996, prosecutors success-fully convicted Ramzi Yousef and the so-called blind sheikh Omar Abdel-Rahman before they were able to carry out elaborate attacks on commercial airliners and New York landmarks.
But these two cases were exceptions: Other courtroom victories almost always came after terror-ists had already struck. Though incredibly complex, most of the cases of the 1990s followed a familiar arc of crime and punishment. In each, the defendants’ ties to acts of terrorism were tan-gible, and their violent intent was clear. When American Airlines Flight 11 smashed into the World Trade Center’s north tower on the morning of September 11, 2001, the prosecutors of the Southern District of New York were among the first to suspect Al Qaeda. Assistant U.S. attorney David Kelley (who became U.S. attorney in 2003) was standing beside the north tower when the south tower collapsed. He climbed out from under the debris and immediately phoned White, who told him he had already been reported dead. Kelley’s colleague Patrick Fitzgerald, who had headed the office’s counter-terrorism team, had literally just landed in Chicago to begin serving as U.S. attorney when the towers were hit. Andrew McCarthy, who ran the district’s suburban office north of New York, watched the first plane make impact on television from his home in Connecticut and then spent the day trying vainly to reach downtown.
For the Southern District prosecutors, McCarthy says, “it was all hands on deck.” By four o’clock the next morning, David Kelley was in Washington , D.C., to help coordinate the na-tional investigation into the attacks. Fitzgerald, who probably knew more about Al Qaeda than any other prosecutor, was soon in Washington as well. McCarthy was installed in a command post north of Ground Zero to lead the U.S. attorney’s part of the investigation. But McCarthy says there was also a sense among the Southern District veterans “that the government had failed, that we didn’t stop it from happening.”
And indeed, in the weeks after September 11, then–attorney general John Ashcroft, over Mary Jo White’s objections, asserted control over the U.S. Department of Justice’s counterterrorism ef-forts. Though the Southern District of New York would continue to play a major role in prose-cuting terrorism cases, Washington would now decide how and against whom cases were brought, and more cases would be prosecuted in the nearby Eastern District of Virginia.
And even more fundamentally, the government’s approach to prosecuting terrorism was changing. With investigators unsure if further attacks were imminent, the watchword became “prevention.” In October 2001 the Justice Department announced an unprecedented wave of preemptive deten-tions and prosecutions. “We will use every available statute,” Ashcroft promised. “We will seek every prosecutorial advantage.” Prosecutors were encouraged to bring whatever charges they could against suspects whose actual intent was often impossible to gauge. Meanwhile, the ad-ministration experimented with novel—and controversial—new ways to hold suspects before charging them, notably by labeling them “enemy combatants” or detaining them as material wit-nesses.
By November 2001, the department had announced more than 100 terrorism-related indictments on federal charges such as identity theft, immigration fraud, credit card theft, and wire transfer violations. “As soon as it was clear that many of the hijackers had been here for some time, there was a sense of the need to focus on the type of conduct consistent with being here for the pur-pose of engaging in a terrorist act,” says David Kelley. The government’s approach was summed up in a 2003 guide for U.S. attorneys that encouraged “strategic over-inclusiveness” in charging terrorism suspects. Prosecutors would throw the kitchen sink at suspects to get them off the streets before they could act.
“Before 9/11, [terrorism] prosecutions were reactive,” says Kelly Moore, a former federal prose-cutor in Brooklyn. “Afterward, there was a big shift toward really focusing on prevention and disruption.”
The Justice Department has maintained this explicit focus on prevention since 2001, often citing the need to intervene early to disrupt suspected terrorist activity. Faced with Washington’s im-perative to charge suspects for inchoate crimes, line prosecutors rarely charged suspects with committing, or even planning, an overt act of terror. (Accused “shoe-bomber” Richard Reid, who was caught trying to bring down a plane with explosives hidden in his shoe, is the exception.) Instead, the government began to rely heavily on federal criminal statutes 2339A and 2339B, which outlaw providing “material support” to terrorists or designated terrorist organizations. The statutes, enacted in the mid-nineties but used just a handful of times before 9/11, were charged against 140 defendants from 2001 through the end of last year, according to a recent study.
These tactics have made it easy for opponents of early intervention to portray defendants in post–9/11 terrorism prosecutions as ineffectual foot soldiers at best and, at worst, hapless dupes caught up in government-concocted conspiracies. Georgetown University professor David Cole, a par-ticularly vocal critic of what he sees as prosecutorial overreach in terrorism cases, says the gov-ernment is too afraid of missing a real plot and being blamed for allowing another 9/11 to occur. “They are going after people too early, before we really know whether they pose a threat,” Cole says.
The critics can point to some real prosecution failures. The convictions of two Detroit men ar-rested the week after September 11 and accused of plotting massive attacks were overturned in 2004 after the prosecutor in the case was accused of withholding evidence. In 2005 jurors in Tampa acquitted Sami al-Arian, a computer engineering professor at a Florida university, of pro-viding material support to and conspiring with Palestinian Islamic Jihad (al-Arian later pled guilty to a lesser conspiracy charge). Last month, a federal appeals court overturned the 2005 conviction of Mohammed Ali Hassan al-Moayad, a Yemeni cleric charged with conspiracy to support Al Qaeda and Hamas, because of errors by the presiding judge. Cases against Islamic charities such as the Holy Land Foundation, targeted as terror financiers, resulted in split verdicts and acquittals.
And even as civil libertarians criticized government overreach, others questioned whether such prosecutions endangered national security. Erstwhile accused “twentieth hijacker” Zacharias Moussaoui, for instance, demanded the right to question such high-profile detainees as Khalid Shaikh Mohammed about exculpatory statements they may have made while in custody. The Fourth Circuit was still struggling to reconcile Moussaoui’s rights as a criminal defendant with national security concerns when the voluble, pro se defendant pled guilty in 2005. For advocates of military tribunals and the creation of a national security court, the Moussaoui trial was proof that the criminal justice system could not simultaneously guarantee accused terrorists a fair trial while protecting classified information.
“It was getting to be a throw-away line, at the beginning of debates over Guantánamo, that the courts couldn’t handle these kinds of cases,” says Elisa Massimino, the director of Human Rights First, a New York–based nonprofit. Frustrated by a paucity of data, the organization commis-sioned Akin Gump Strauss Hauer & Feld partners Richard Zabel and James Benjamin, Jr., both former federal prosecutors, to conduct a thorough study of terrorism prosecutions.
In May 2008 Zabel and Benjamin published an exhaustive, 171-page analysis of the govern-ment’s record. Their report analyzed cases against 257 defendants between September 2001 and November 2007 that the authors identified as “related to terrorism associated—organizationally, financially, or ideologically—with Islamist extremist terrorist groups like Al Qaeda.” Of the 160 defendants against whom charges had been resolved at the time they finished their study, Zabel and Benjamin found that just 9 percent had been acquitted of all charges or had had their cases dismissed. Of the 145 defendants who were convicted, nearly 80 percent were serving time in prison, with an average term (excluding five serving life sentences) of more than eight years.
Zabel and Benjamin faulted the methods used in previous studies that criticized the govern-ment’s conviction rate-—and concluded that prosecutors had performed far better than they’d been given credit for doing. “Many of the purported criticisms of the justice system do not with-stand scrutiny,” they wrote. “It has proved to be adaptable and has successfully handled a large number of important and challenging terrorism prosecutions.”
Answering the national security hawks, Zabel and Benjamin noted that laws such as the Classi-fied Information Procedures Act (enacted in 1980 in the era of Cold War espionage prosecution) allow judges and prosecutors to protect classified information and sources in the course of litigat-ing and trying terror cases. While their report acknowledged that cases like Moussaoui’s can pose special problems, they noted that the courts have generally found ways to adapt. Their study, for instance, refuted a purported example of a leak cited at various times by both Attorney General Michael Mukasey and Supreme Court justice Antonin Scalia—testimony in a case in-volving the 1993 World Trade Center bombing that supposedly tipped off Osama bin Laden that one of his cell phones was bugged-.
“As far as we can tell, that just didn’t happen,” says Benjamin in an interview.
In the end, the government’s terror convictions—the great majority of which have been upheld—speak for themselves. Iyman Faris, a naturalized citizen, pled guilty in 2003 to supporting and conspiring with senior Al Qaeda operatives in Pakistan to derail trains and destroy the Brooklyn Bridge. Uzair Paracha was convicted at trial in 2005 of conspiring to help a Pakistani Al Qaeda operative enter the United States, where he planned to bomb targets in Maryland. Also in 2005, a British businessman named Hemant Lakhani was convicted on multiple charges after he tried to sell a shoulder-fired missile to men he believed were Somali terrorists hoping to destroy U.S. planes. In 2006 Pakistani immigrant Shahawar Siraj was found guilty of plotting to blow up New York’s Herald Square subway station.
Although these defendants may have never lit a fuse or pulled a trigger, their sentences ranged from 20 years to life in prison. That record—coupled with the notable absence of any attacks on U.S. soil since 9/11—led Zabel and Benjamin to conclude that the government’s preventative strategy was working and that calls for establishing a new system to try terrorists were mis-placed.
This summer, in a speech to the D.C. Circuit Judicial Conference, Attorney General Mukasey reaf-firmed the approach to terror prosecutions that his predecessor laid out seven years before. Echo-ing Ashcroft, he promised to use “any available charge” to prosecute terrorists. “This may well mean that certain plots are charged at early stages, before the evidence is fully developed,” Mu-kasey said. “I would rather explain to the American people why we acted when we did, even if it is at a very early stage, than try to explain why we failed to act.”
But in fact, careful observers, including former prosecutors, say the government in the last two years has moved away from early prosecutions in favor of sustained intelligence operations. David Laufman, the former assistant U.S. attorney who prosecuted Abu Ali, says he began to see a marked drop-off in referrals of cases by the FBI to the U.S. attorney’s office for potential prosecution last summer, before he left to join Kelley Drye & Warren. The decline, he says, cor-responded directly with the FBI’s growing emphasis on intelligence collection.
There’s statistical evidence as well. Among others, Zabel and Benjamin report a steady decline in the number of major terrorism cases filed each year since 2001, from 22 in both 2001 and 2002 to ten each in 2006 and 2007. Meanwhile, the number of warrants authorized by the For-eign Intelligence Surveillance Court for domestic spying—a rough proxy for domestic intelli-gence-gathering efforts—has more than doubled in the same period, from 932 in 2001 to 2,371 in 2007.
Arthur Cummings II, who heads the FBI’s National Security Branch and oversees its intelligence and counterterrorism programs, acknowledges that prosecutions have taken a backseat to intelli-gence collection. “Before, in some cases and on some violations the prosecutors were driving the response,” says Cummings. “Counterterrorism prosecutions are critical, but they are never the driver.”
Cummings says the shift away from early, aggressive prosecution has come about as the gov-ernment improved its understanding of the actual threat of terror attacks. “Right after [9/11] we had no clear understanding of the gaps in our intelligence, and disruption had to be the strategy,” he says. “[Now] the tolerance for risk is maturing. As long as we are learning more, we should probably continue with collection.”
Nevertheless, some current and former prosecutors worry that the Justice Department may be abrogating its responsibility to protect the public. They warn that allowing intelligence collection to take precedence over traditional law enforcement increases the risks that a potential plot could proceed to completion. At the very least, they say the decline in prosecutions will erode the gov-ernment’s credibility, since there are few other ways of demonstrating to a cynical public that the threat of terrorism is real.
“There has always been a tension between prolonged intelligence-gathering versus preserving and ultimately choosing the option to go criminal,” says former assistant U.S. attorney Laufman. “The FBI has moved too far in the direction of emphasizing intelligence-gathering over criminal prosecutions.”
Another danger, says a senior Justice Department official who spoke on condition of anonymity, is that the FBI’s reprioritization could lead to the kind of information hoarding that hindered co-operation between intelligence and law enforcement agencies before 9/11. “The aggressive prosecutors are saying, ‘Boy, this looks good, we should take them down now,’ but they are be-ing told to stand down,” the official says. “What’s happening now is the FBI is so intel-oriented that they are basically claiming a monopoly on the operational decision making in cases involv-ing terrorism.”
J. Patrick Rowan, who coordinates terrorism prosecutions at the Justice Department as head of the national security division, cautions against exaggerating the effect of the FBI’s expanded in-telligence role. “I think we are all much more aware of the utility of continuing to collect intelli-gence,” Rowan says. “But I don’t think that’s necessarily changed the way we decide things on a case-by-case basis.”
Though the FBI insists that it keeps the option of eventual prosecution in mind as it collects in-telligence, some prosecutors are concerned that a massive amount of data from wiretaps and other sources is being gathered without enough attention to its potential value. In 2005 and 2006, before she left New York’s Eastern District, Kelly Moore saw the same shift away from aggres-sive prosecutions as others. Moore worries that, as the emphasis shifts to intelligence collection, information is being scrutinized less carefully for its potential as evidence in criminal prosecu-tions and may therefore be either exaggerated or overlooked.
“There is certainly a place for gathering intelligence,” Kelly says. “But when that’s all you’re doing, at the end of the day it is probably going to make us less safe.”
Ultimately, that’s going to be the question in January, when the first new administration to come to power after 9/11 takes office. It’s not whether prosecutors can win terrorism cases, but whether the terrorism cases they win are making the U.S. safer. Those who say that U.S. courts have proved they can deal with accused terrorists argue compellingly for prosecution, even if the courts can only be part of the strategy in confronting terrorism. And for all the criticism that the shift toward greater emphasis on intelligence has generated, it may turn out to be a necessary corrective to the zealousness that prosecutors showed in the aftermath of the worst terrorist at-tack in the country’s history. In the end, despite missteps, agency turf wars, political pressures, and calls to keep suspected terrorists out of the courts altogether, the history of the past seven years suggests that the criminal justice system is messily finding its way.
