In July 2009 Human Rights First, a “non-profit, nonpartisan international human rights organization based in New York and Washington D.C.” released a report entitled In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts (2009 Update and Recent Developments) (pdf here). On pages 6-7 of the report (12-13 of the pdf) we find the following interesting facts:

As shown in Figure 1, we have identified 119 cases filed since September 11, 2001 … there were 289 defendants charged in those cases.

and

Of the 289 defendants in our data set, 45 have yet to be brought into custody because they are fugitives, currently are subject to extradition proceedings or cannot be extradited, are deceased, or for some other reason. Another 7 defendants are legal entities rather than individuals, and bail information was not available for 10 individuals. Thus, 227 individual defendants have been arrested and have had a bail determination made by the court.

Of these 227 defendants, 157 were ordered detained without bail and 82 were released on conditions. These figures reflect a detention rate of approximately 69% (emphasis added).

The only breakdown of the charges in the report is found on page 12 (pdf page 18). That figure is reproduced here in its entirety, with the caveat that the report says it “shows the statutes most commonly charged against defendants in cases within our data set. A single defendant may be counted multiple times in this chart, once for each statute that he is alleged to have violated.”

We also learn on page 12 that from 12 September 2001 to 2 June 2009 there has been a 92.1% rate of conviction (of at least one charge), with 8.9% of cases resulting in full acquittal or dismissal.

I’d like to do a more thorough analysis of these numbers but I don’t have the time. However, I know for certain that when 31% of the “terrorists” brought before Article 3 courts since 2001 managed to get released into the community with some or no conditions, I’m not entirely satisfied with the definition “terrorist” in the context of Article 3 prosecutions. I suspect this has something to do with the number of controlled substances, RICO, and money laundering cases lumped in with the others.

On the other hand, Najibullah Zazi pleaded guilty Monday in the Eastern District of New York to a three-count superseding information charging him with conspiracy to use weapons of mass destruction (explosive bombs) against persons or property in the United States, conspiracy to commit murder in a foreign country and providing material support to al-Qaeda. Among other things, Zazi admitted that he brought TATP [Triacetone Triperoxide] explosives to New York on Sept. 10, 2009, as part of plan to attack the New York subway system. Zazi is a legal permanent resident of the United States from Afghanistan.

13 Responses to ““More than 300 Terrorists” in Article 3 Courts”

  1. Anonymous says:

    Did they only become terrorists in 2001? I think we convicted a few before 2001. That would explain the “more than 300” number fairly easily vis-a-vis convicting terrorists in Article 3 courts.

    Any way you slice it, the number is a lot more than 3, even if it turns out not to be 300.

  2. Dwight Sullivan says:

    Consider this from Attorney General Holder’s 3 February 2010 letter to Senator McConnell: “the Bush Administration used the criminal justice system to convict more than 300 individuals on terrorism-related charges.” I assume that this information provided by the Attorney General is accurate. If so, Human Rights First’s data set appears to be missing a large number of cases.

  3. Dwight Sullivan says:

    In 2008, the Department of Justice reported that it had obtained “319 convictions or guilty pleas in terrorism-related cases arising from investigations conducted primarily after September 11, 2001.”

    http://www.justice.gov/jmd/2009summary/html/004_budget_highlights.htm

  4. Anonymous says:

    It just seems like a red herring, we arguing over the difference between 319 to 3 versus from what I can parse from that chart 217 to 3.

    Either way, one system has hundreds of convictions, and the other system has fewer convictions than any trial counsel after six months at almost any base.

  5. Zachary Spilman says:

    I liked this report for a discussion of this issue for 3 reasons:

    1) It comes from a group that seems to have a lefty political viewpoint. Nobody’s going to accuse Human Rights First of being a shrill for the DoD.

    2) It lists all of the cases included in its analysis in the appendix (though, unfortunately, only provides the citation and not details for each).

    3) It discusses the release of (to use COL Sullivan’s label) “terrorism-related” defendants. This statistic alone demonstrates that, in many cases, the Article 3 defendants and the commission defendants are radically different types of criminals.

  6. Anonymous says:

    I think your framing this solely or purely in right/left political terms is what is getting your into trouble here. Given the choice between government statistics (agreed to by two different administrations) and an interest group, you pick the former most of the time, particularly when the stats involved concern government actions.

    I don’t see any support for your terminology in number 3. “radically” different? I have no doubt some are like the Gitmo guys (who themselves span a large variety of criminal types from innocent to minor to moderate to heavy) and others are not. But you seem to be attempting to portray the folks in Gitmo as universally worse than the ones tried in Article 3 courts.

    Given that a) the folks in Gitmo span an entire range from poor schmos turned in for a reward to hardcore terrorists and b) so do the folks tried in Article 3 courts, it would seem again that you’ve not shown why we should do things differently now then we have been.

    What’s the danger in using Article 3 courts? What is your concern? What makes commissions better? You haven’t really answered any of these questions yet.

  7. anonymous says:

    So what was the cost of all of those trials? We could have shot them all for $300 and then used that money for schools instead? Due process isn’t cheap, and should not be the highest fiscal priority. Although this seems obvious, there are, undoubtedly, some who will ingore the fiscal reality of this and assert that due process is MORE important, and if it is expensive, so be it. Right?

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  9. imfb says:

    This was the point I made the other day. The numbers have been inflated for years to tie in a lot of things we wouldn’t think of as terrorism, and both sides of the political debate have had reason to toss them around at one point or another.

    I don’t know how much we want to bat around the 300 v. 217 v. X, but I wonder how many of these trials would on the level of the one for KSM.

  10. imfb says:

    You know what they say about assuming…

  11. Anonymous says:

    So because KSM was a main planner and more notorious, because of that fairly unique situation that differentiates him not only from almost all of the Article 3 court-tried terrorists but also almost everyone at Gitmo, that means we shouldn’t use Article 3 courts?

  12. imfb says:

    In his case? I don’t know. To be honest, I’m not quite sure where I land in this debate. I certainly think it is a debate worth having though.

  13. Anonymous says:

    The debate’s been had. Enough already. Try these guys in article 3 courts and let the chips fall where they may.

    Thanks for the link, Zach. I guess “respect for human rights and the rule of law” is only for the lefties? What do you righties believe?