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Is Terror Winning in the Courts?

June 22, 2008
By Richard Miniter
richard_miniter.jpgAn ACRU Report

Executive Summary
America is losing the War on Terror in the courts.

• Since 2002, the total number of prosecutions of terrorists has fallen every year and is now approaching pre-9-11 levels.

• The percentage of terror cases that federal prosecutors refused to prosecute has climbed to 90% in 2006, up from 34% in 2002.

Part of the reason: the landmark Supreme Court case Brandenburg v. Ohio is now being used to thwart the convictions of individuals linked to al Qaeda and other foreign terrorist outfits. The 1969 domestic free-speech case effectively safeguards suspected terrorists from prosecutions. Sometimes Brandenburg is invoked by defense attorneys; more often it is employed by prosecutors as a reason to decline prosecuting a case against suspected terrorists.

Critics of the war on terror consistently contend that terrorism is a crime that should be combated in the courts, with the full panoply of civil rights for suspected terrorists. Sadly, the Brandenburg precedent—set in a starkly different time—makes it almost impossible for the government to prevail against terrorists, who are caught in planning stages, in the federal courts. If our system of justice is to play a vital role in the war on terror, the Supreme Court should narrow the scope of Brandenburg.

While statistical information on terror cases is public, it usually requires a Freedom of Information Act request, followed by months or even years of waiting to obtain the requested information. Even then, the records delivered are often old or incomplete (some important information is classified and not releasable).

The Justice department does not routinely release statistics on terrorist prosecutions. Fortunately two major universities have been quietly tracking the federal government’s anti-terrorism efforts. One is the New York University Law School. The other, a far more exhaustive storehouse of federal data, is at Syracuse University. Since 1989, Syracuse University’s Transactional Records Access Clearinghouse (TRAC), has systematically used the Freedom of Information Act to gather and organize Justice department statistics.

TRAC, a joint program of the S.I. Newhouse School of Public Communications and Martin J. Whitman School of Management, is supported by an array of foundations including: the Rockefeller Family Fund, the New York Times Company Foundation, the Ford Foundation, and the Open Society Institute, founded by George Soros.

The federal statistics cited in this paper were accessed through TRAC. The analysis and conclusions are my own. In addition, I consulted a number of lawyers who are directly involved in terror cases. Their input was extremely valuable in shaping the research for this paper.

For Full Report CONTINUE......

Table of Contents
Section 1. Terrorist Prosecutions Decline
Section 2. Why?
Section 3. The Brandenburg Test
Section 4. The Brandenburg Effect Section 5. Policy Recommendations
Source:The American Civil Rights Union
From the ACRU Mission Statement:
 Civil rights are the fundamental liberties that all Americans should enjoy as a matter of basic morality, as well as Constitutional protection. Several organizations exist to protect one aspect or another of our civil rights and liberties. But the American Civil Rights Union (ACRU) is dedicated to protecting our fundamental rights and liberties across the board. The ACRU focuses, in particular, on those areas of our civil rights which are ignored, or even actively undermined, by other supposed civil liberties groups. 

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