The Courts and the War on Terror

On the eve of his departure from office, Attorney General John Ashcroft boasted, "The objective of securing the safety of Americans from crime and terror has been achieved." In this, he echoed a drumbeat of announcements by top officials who have repeatedly proclaimed that, when it came to the war on terror, the administration was succeeding in the courts as well as on the battlefield. As President Bush declared in a speech to the FBI Academy in September 2003, "We've thwarted terrorists in Buffalo and Seattle, in Portland, Detroit, North Carolina and Tampa, Florida."

In fact, looked at with a cold eye, the administration's record of convictions in terrorism cases is remarkably inconsequential. Although it is extremely difficult to obtain reliable information on such cases, the facts, as best we know them, are these: Of the 120 terrorism cases recorded on Findlaw, the major information source for legal cases of note, the initial major charges leveled have resulted in only two actual terrorism convictions – both in a single case, that of Richard Reid, the notorious shoe bomber. Of 18 actual charges of "terrorism" brought between September 2001 and October 2004, 15 are still pending and one was dismissed. In lieu of convictions for terrorist acts, the Justice Department uses another related, lesser charge – that of "material support," which means providing aid or services to a terrorist or a terrorist organization. Its extreme breadth and over-inclusiveness has rendered it the fallback charge of choice and a catch-all for anything from having trained in an al Qaeda camp in Afghanistan back in the 1990s (when al Qaeda's focus was the war in Bosnia and other places outside of the United States) to weapons training, or even the exceedingly modest category of producing fraudulent documents, so long as they are knowingly provided to a designated "foreign terrorist organization."

But what of the six cases of "terrorism convictions," material support or otherwise, that the President himself hailed as the benchmarks of the administration's courtroom success story? As it happens, five resulted from questionable plea bargains, often on lesser charges, not necessarily closely related to terrorism, and one has yet to be tried. Only in the Detroit case has there been an actual conviction for "terrorism," (albeit material support for terrorism), and that case has since been overturned in a manner embarrassing to the Bush administration.

When the plea bargains are considered in their own right, their apparent circumstances should cause the odd eyebrow to be raised. After all, over half of all terrorism cases tried so far have resulted in plea bargains. The Department of Justice (DOJ) alleges that such pleas are offered in exchange for important information in the war on terrorism and spokespersons at the DOJ invariably maintain that, as in criminal cases generally, these have yielded invaluable information. Yet despite the implementation of the Patriot Act and the re-organization of our law enforcement efforts to fight terrorism, the yield seems neither better, nor worse than that which existed prior to 9/11.

Let's just consider the five already tried cases that the President cited. In most of them, the evidence seems to show that the use of plea bargains had a good deal less to do with getting crucial "terror" information than with getting convictions on the books in situations where a conviction at trial might have proved difficult indeed. In the Buffalo case, the defendants – known as the Lackawanna Six – were initially accused of belonging to an "al Qaeda sleeper cell," but instead ended up pleading to material support charges.

What's especially interesting here, however, is the way in which some of those plea bargains seem to have been achieved. According to defense attorneys, the defendants were threatened with the prospect of being classified as "unlawful combatants," the new Bush-administration-defined status which entails imprisonment without end as well as the loss of the right to a lawyer and to communicate with anyone in the outside world. Nor did these appear to be idle threats. There were frightful precedents. The administration had seen no reason for restraint, for example, when, in 2002, it labeled Jose Padilla and Yasser Esam Hamdi, both American citizens, as "enemy combatants" and placed them in military detention and (so far) beyond the reach of the law. (Just last week, U.S. District Judge Henry Floyd ruled that the Department of Justice has 45 days to charge Padilla, jailed in the spring of 2002, or release him.)