Terrorist Prosecutions By the Numbers

By Daphne Eviatar, Senior Associate, Law & Security

Cross-posted at Huffington Post.

In reporting recently that Umar Farouk Abdulmutallab, the so-called underwear bomber, was actually providing useful intelligence to the FBI, Rachel Maddow on her MSNBC show noted that more than 300 terrorists were convicted in the civilian U.S. court system by the Bush administration. She cited statistics obtained from the Department of Justice.

As many people know, Human Rights First published a thorough and widely-cited report in 2008 on those successful terrorist convictions. Yet our updated report, issued last year, cited only 195 terrorists convicted. So what accounts for the different numbers?

In fact, both are true – as is an NYU Center on Law and Security report that recently found that more than 500 suspected terrorists have been convicted in the civilian justice system since September 11, 2001. It all just depends on what you’re counting.

Human Rights First took the most conservative approach. Relying on two respected former federal prosecutors in New York with experience trying terrorism cases, we wanted to see how many cases the courts have handled specifically related to radical self-described Islamic or “Jihadist” terrorism, such as al Qaeda, since that’s where the public debate has focused. So the former prosecutors – James Benjamin, now a partner at the highly-respected law firm of Akin Gump Strauss Hauer & Feld, and the other, Richard Zabel, now head of the criminal division in the U.S. Attorney’s office of the Southern District of New York – analyzed just that.

But there are other violent terrorist groups out there, such as the Revolutionary Armed Forces of Colombia (the FARC) and the Tamil Tigers. Prosecutions of their leaders and supporters raise similar concerns about the need to obtain important intelligence information and to protect classified evidence and the identity of certain witnesses. According to a Justice Department spokesman, the Department’s statement that more than 300 terrorists were convicted in U.S. courts during the Bush administration therefore includes those prosecutions, since they also represent the Justice Department’s experience and expertise in handling these complex and sensitive cases.

The NYU numbers, meanwhile, are even broader. In its recently-released report, the Center for Law and Security looked at all cases since the terrorist attacks of September 11, 2001 that the Justice Department initially described as terrorist-related. Many of those suspects were not charged under terrorism-related statutes, however, but charged with fraud or immigration violations instead. That was part of an initial post-9/11 strategy to get potential terrorists off the streets before they could attack, even if the government did not have sufficient evidence of terrorist connections to secure a conviction. Increasingly, the government has moved away from that strategy and charged suspected terrorists with terrorism-related crimes.

So the numbers just depend on what you’re counting. But the main point – regardless of how many hundreds of convictions we’re talking about – is that the Department of Justice has proven itself time and again to be well-equipped to interrogate terrorist suspects, investigate terrorism plots and prosecute complex terrorism cases. Military commissions, by contrast, have not: they’ve only convicted three terrorists so far, two of whom have already been released from prison.

The recent hysteria about how we shouldn’t be giving constitutional rights to non-U.S. citizens is a red herring. (It’s also worth noting, as Glenn Greenwald explained in an excellent post on Salon on Monday, that the Constitution requires according foreigners detained in the U.S. Constitutional rights – as the Supreme Court ruled as far back as 1886 and recently reaffirmed in its decision in Boumedienne v. Bush.)

Not only does the U.S. Constitution confer those rights, but based on the experience of our own time-tested federal justice system, sound national security policy demands it.

This post has been updated.