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While seeking fairness and uniformity in the judicial sentencing process, the U.S. Sentencing Commission’s minimum mandatory sentences have drawn criticism, particularly regarding sentences imposed for drug-related offenses. Considered by many to be too harsh and too unjust, the war on drugs might have overshot its battlelines when grandmothers serve long prison terms for drug conspiracies in which they seemingly had little involvement. The war on terror, however, is a different fight altogether. Protecting the nation’s physical and cyber critical infrastructures�the power, water, telecommunications and transportation systems upon which the United States and its economy depend�is a fundamental part of the nation’s homeland security strategy. Although recent additions to sentencing guidelines further limit judicial sentencing discretion, the commission’s action rightly elevates the importance of critical infrastructure protection; it may deter some would-be offenders and also gives clarity to the sentencing process. A case in point As the recent case of convicted al-Queda conspirator Iyman Faris illustrates, the terror threat to critical infrastructures is both real and serious. Faris is currently serving the first months of a 20-year prison sentence for aiding terrorist plans to destroy a New York City bridge. Fortunately, law enforcement apprehended Faris before he could commit acts of terror. Yet there are others who may be contemplating similar attacks against critical infrastructures who may never face justice until it is too late. In the wake of imperfect intelligence, porous borders and “orange alerts,” at least the certainty of serving hard time represents a steadfast deterrent, perhaps giving pause to those like Faris who authorities have yet to identify, or perhaps never will. In the information age, computer security must complement physical security. By strengthening penalties for computer-related offenses against critical infrastructures that were previously criminalized under 18 U.S.C. 1030, the commission recognized that terrorists may turn to computers and the Internet for sinister ends. Now a person convicted of using a computer to disrupt or destroy a power plant’s electronic systems or an airport control tower can be assured of even harsher penalties for doing so. A person convicted and sentenced under the new guidelines may receive as many as 20 years or more, though the specific sentence depends on several factors, including the nature of the offense and the criminal history of the offender. Penalties raise awareness While the knowledge of long prison terms may not deter all would-be offenders-especially terrorists willing to die for their cause-security through deterrence is a positive supplement to the nation’s overall security posture. Considering the computer security weaknesses that continue to plague the electronic networks and systems that control many of the nation’s 13 critical infrastructure sectors, tougher penalties raise awareness not only with the legal community but also among public policy advocates. The more attention critical infrastructure protection and computer security receives, the more likely it will be that owners and operators of vulnerable computer systems will invest in the required security measures to protect them in the first place. Consider the timing of the August 2003 blackout that plagued much of the Northeast. Although the MS Blaster and SoBig computer viruses-which happened to be plaguing the Internet at the time of the blackout-did not cause the power crisis, the confluence, however incidental it might have been, of these events gives one pause. It is not hard to see the potential vulnerabilities of the power grid to large-scale, electronic system failures. Such thoughts are not idle flights of fancy. Terrorism in the future will likely not resemble what we saw on Sept. 11, 2001. The bombing of al-Queda’s safe havens in Afghanistan did not mean that the terrorists surrendered, only that they dispersed. That dispersion means that a loose network of terrorists, not necessarily trained in Afghanistan, but supporting the cause, will use whatever means they have that are available and accessible. Consequently, the power and reach of the Internet is a more attractive terrorist weapon. While those responsible for Sept. 11 used the Internet only for communication and research, future plots might use the Web to attack from a distance the vulnerable, electronic and interconnected components of our critical infrastructures. Ensuring harsh penalties now will make the prosecution and punishment of such offenses easier, if and when they occur. The clarity of the sentencing guidelines stands in stark contrast to other areas of the homeland security landscape, such as the continuing inconsistencies in the application of the color-code alert system. In another example, the U.S. Department of Justice has been criticized for using the USA Patriot Act to investigate a broad (some would say unfocused) range of activity-including a strip club in Las Vegas. In contrast, prosecutions pursuant to criminal statutes that result in sentencing under the new guidelines provide a much more focused effort to combat the real and serious threat raised by those who would utilize our own critical infrastructures against us. Such potential sentences go a long way to ensure that the courts have the power to punish those most serious of offenders. Steven Roberts is a homeland security consultant and an NLJ columnist. Juliette N. Kayyem, a former member of the National Commission on Terrorism, teaches about national security and the law at Harvard’s John F. Kennedy School of Government.

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