Chasing Terrorists or Fears?

Almost immediately after Sept. 11, Atty. Gen. John Ashcroft committed his department to a preemptive anti-terrorism strategy modeled after Robert F. Kennedy’s zealous harassment of organized crime bosses in the 1960s. And, like the mob-busting prosecutors of the 1930s who put Al Capone away for tax evasion, Ashcroft pledged to use the entirety of the criminal code to disrupt terrorist plots before they matured.

In speech after speech, Ashcroft recalled that Kennedy’s Justice Department “would arrest mobsters for spitting on the sidewalk.”

“Let the terrorists among us be warned,” Ashcroft declared six weeks after the attacks.

“If you overstay your visa, even by one day, we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every available prosecutorial advantage.”

Such determined talk may have provided a measure of reassurance to an anxious nation in the fall of 2001.

But three years later, it is difficult to gauge how successful the approach has been, and whether its victories have outweighed its costs in botched prosecutions, the detention of innocent people, the alienation of Arab Americans, the fomenting of anti-American sentiment and, in the eyes of some, the compromise of civil liberties.

There have been no subsequent terrorist attacks on American soil, a fact that Ashcroft cites as primary evidence of his strategy’s success.

But many legal analysts say the absence of terrorism does not alone prove that preemptive law enforcement is working. There is, they say, a significant difference between fighting the flamboyant crime bosses of the past and pursuing the shadowy terrorists of today.

“Everybody knew Al Capone was a big-time mobster, and you didn’t have to demonstrate that when you went after him for tax evasion,” said Daniel C. Richman, a Fordham University law professor and former federal prosecutor.

“But when you go after an immigrant for document fraud or immigration fraud or making false statements, you do need to show at some point that you’re picking the right people.”

Ashcroft and his aides have cited the ever-growing number of terrorism-related arrests as justification for the department’s approach and for the Patriot Act, which has come under scrutiny in the courts and in Congress. This month, the attorney general said terrorism investigations since Sept. 11 had resulted in charges against 364 suspects and convictions of 193.

But although the department consistently highlights its most significant prosecutions, as does President Bush on the campaign trail, it declines to detail the cases it says comprise those figures. Ashcroft and his aides also declined requests to discuss them for this article. Without the data, lawmakers cannot fully assess how many cases have any significant connection to terrorism.

The Government Accountability Office, the investigative arm of Congress, has criticized the Justice Department’s recordkeeping in terrorism cases. But the department offers no rationale for its policy.

“We do not provide lists,” said Mark Corallo, a Justice Department spokesman.

“Any reporter or citizen is capable of reading the public record in the various federal judicial circuits.”

An examination by the Los Angeles Times of media accounts, Justice Department releases, and studies by law professors and interest groups found about 150 defendants in cases the department has linked to terrorism.

Of them, only Richard C. Reid, who failed to detonate explosives hidden in his shoes on a transatlantic flight in 2001, and Ahmad Omar Saeed Sheikh, the British-born militant indicted in the 2002 kidnapping of journalist Daniel Pearl in Pakistan, can be said to have actually attempted a terrorist attack after Sept. 11.

Reid has been sentenced to life in prison by a federal judge in Boston. Sheikh, who was sentenced to death by a Pakistani court, has not been tried by American authorities.

Among the other defendants, some can be described as either potential terrorists or supporters of terrorist groups.

The most significant convictions have included members of a reputed terrorist cell in Lackawanna, N.Y., who traveled to an Al Qaeda training camp; the Portland Seven, who ultimately failed in their plan to fight against American troops in Afghanistan; and the so-called Virginia Jihad, a group of Muslims charged with training for combat in Pakistan, partly by playing paintball in the woods.

Prosecutors say it is a mistake to underestimate those charged in such cases, even though their planning may seem amateurish and their presumed targets may not be American.

“People sometimes refer to these guys as bumblers,” said Charles F. Gorder Jr., an assistant U.S. attorney who prosecuted the Portland case. “But if you look at your typical suicide bomber, quite often you could describe them as bumblers until the day they blow themselves up.”

Each of the major cases has resulted in convictions or guilty pleas, with charges sometimes being reduced in exchange for cooperation.

They also have brought some substantial sentences, although one study concluded that sentencing overall has been modest because charges often have not explicitly involved terrorism.

In the Virginia case, U.S. District Judge Leonie Brinkema said she found it “appalling” that sentencing guidelines, including an enhancement for terrorism-related crimes, forced her to hand out one sentence of life and another of 85 years to defendants who had not committed violent acts.

An Ohio truck driver -- Pakistani native Iyman Faris -- received a 20-year sentence last year after pleading guilty to meeting a top Al Qaeda official to discuss the destruction of the Brooklyn Bridge. The ringleader of a Charlotte, N.C., syndicate that diverted profits from cigarette smuggling to the Lebanese terrorist group Hezbollah received 155 years.

Mohammed Junaid Babar, a naturalized American from Pakistan who pleaded guilty in June to providing night vision goggles and other equipment to an Al Qaeda official, faces as many as 70 years.

Such cases typically have been prosecuted using material-support laws that prohibit providing funding, equipment, logistical support or personnel to terrorist groups that have been so designated by the secretary of State. The laws were enacted in the mid-1990s in response to the 1993 bombing of the World Trade Center in New York and the 1995 bombing of the federal building in Oklahoma City, but were little used until after Sept. 11, said Robert Chesney, a Wake Forest University law professor. They have been toughened by provisions of the Patriot Act, which was enacted after Sept. 11.

Christopher A. Wray, an assistant attorney general, told the Senate Judiciary Committee in May that the material-support statutes were vital in disrupting the chronology of a terrorist attack.

“The material-support statutes enable us to strike earlier and earlier,” he said. “We would much rather catch a terrorist with his hands on a check than on a bomb.”

But critics of the laws say they are too sweeping and too vague, enabling charges against some who seem to have only the most tangential connections to terrorism. Some judges and juries have agreed.

In June, a federal jury in Boise, Idaho, acquitted Sami Omar Al-Hussayen, a computer science student who had been accused of designing and maintaining websites that were used to post messages supportive of terrorist missions. Federal prosecutors contended that Al-Hussayen, a Saudi national, had violated Patriot Act provisions that prohibit giving “expert advice or assistance” to terrorists.

A federal judge in Los Angeles had already declared that provision to be unconstitutionally vague, but the ruling did not apply outside his district. In the last two years, district court judges in Florida and New York and an appellate court in California have ruled that the material-support laws were unconstitutionally vague or broad.

The appellate court, the U.S. 9th Circuit Court of Appeals in San Francisco, ruled that a defendant could not be found guilty of material support purely for aiding a group designated by the State Department as a terrorist organization. Rather, the court said the defendant had to know of the group’s designation or of the unlawful activities that led to the designation.

David Nevin, the lawyer for Al-Hussayen, said the case illustrated the pitfalls of the “spitting on the sidewalk” approach.

“If you try to get everybody, then necessarily you’re going to get some people who are innocent,” Nevin said. “If this was a robbery or a fraud, this case never would have been brought with this evidence.”

The charges in such cases have been announced with great fanfare, often in news conferences with Ashcroft or his top deputies. When cases fall apart, the failures reverberate through the Arab American community.

David Cole, a Georgetown University law professor who has been critical of the Justice Department, said the government had calculated that “locking up several thousand foreign nationals is a small price to pay politically” for presenting an image of aggressive law enforcement. But, he said, it has ignored the long-term effects.

“One of the risks of over-enforcement,” he said, “is not just that innocent people get locked up unnecessarily, but we encourage terrorists abroad and we discourage the people we need to help us find the terrorists. It creates a backlash that makes us less safe.”

In some prosecutions, even the government has concluded that connections to terrorism were too tenuous to use the material-support statutes. This month, for instance, Kamran Akhtar, a Pakistani native, pleaded guilty to immigration violations after being arrested in July while videotaping the 60-story Bank of America tower in Charlotte. He is expected to serve a sentence of as much as six months and then be deported.

There also have been cases in which judges have upbraided prosecutors for overly aggressive conduct. In the most dramatic example, a federal judge last month voided the terrorism-related convictions of two men in Detroit after learning that prosecutors had failed to turn over relevant evidence to defense lawyers. U.S. District Judge Gerald E. Rosen said prosecutors “simply ignored or avoided any evidence” that contradicted their theory that the Moroccan immigrants had formed a terrorist cell.

A judge in Albany, N.Y., reversed himself in August and freed two men on bail after learning the government had mistranslated a document it used to argue that the men were very dangerous.

The document, a page from a Kurdish-language notebook found in Iraq, was thought to refer to one of the defendants as a “commander.” Upon further analysis, the word was translated as “brother.”

The case relies on an FBI sting that lured the defendants -- a pizzeria owner and an imam -- into allegedly laundering money for a government informant who claimed he was supplying weapons to terrorists. Federal Magistrate Judge David R. Homer told prosecutors he saw no evidence linking either of the defendants to a terrorist organization.

At times, judges have rejected prosecution arguments that defendants should be sentenced severely because their crimes contributed to terrorism.

In July 2003, federal prosecutors in Chicago asked for a maximum 20-year sentence for Enaam Arnaout, a Syrian-born U.S. citizen who had pleaded guilty to racketeering for defrauding donors to his Benevolence International Foundation. He told some donors that their contributions would help fight poverty, but Arnaout used the funds to buy uniforms and other equipment for rebels in Chechnya and troops in Bosnia.

In sentencing Arnaout to 11 years, U.S. District Judge Suzanne B. Conlon rejected prosecution claims that he was supporting Al Qaeda.

“Arnaout does not stand convicted of a terrorism offense,” the judge wrote. “Nor does the record reflect that he attempted, participated in, or conspired to commit any act of terrorism.”

Corallo, the Justice Department spokesman, said only one of the hundreds of people charged in terrorism-related cases had been acquitted by a jury, three had charges dismissed by the government, and one had charges reduced by a judge. Corallo would not name the cases he was citing, but at least some of his statistics were incorrect.

In addition to Al-Hussayen in Boise, one of the defendants in the Detroit case, Farouk Ali-Haimoud, was acquitted of all charges in a jury trial last year. Two of the 11 defendants charged as part of the northern Virginia group were acquitted by a judge after waiving their right to a jury trial. The judge also dismissed some charges against three other defendants, although they ultimately were convicted of the most serious counts.

Some lawmakers have become increasingly critical of the Justice Department’s approach.

“There have really been very few real victories in cases that have brought terrorism charges since Sept. 11,” Sen. Patrick J. Leahy (D-Vt.) said at a Senate Judiciary Committee hearing in September. “And those seem to have been overshadowed by seemingly half-hearted prosecutions.”

But current and former Justice Department officials say that three years after Sept. 11, the need for aggressive tactics has not diminished.

“The government is using a tried-and-true technique, which is using all the statutory charges it has available to it,” said Larry D. Thompson, who resigned last year as deputy attorney general. “It’s before an independent judge and the defendants are entitled to vigorous counsel. So if the investigation is a bad one, that will all be sorted out through the adversarial process. But if you look at the statistics, the government has had extraordinary success.”