US Responses to Terrorists Research Paper

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America’s response to terrorism has changed dramatically over the past 30 years. Changes have included everything from the way in which terrorism is portrayed politically to the manner in which terrorists are investigated, prosecuted, and punished. Modifications to governmental interventions also have affected the manner in which terrorists plan and conduct terrorist activities as well as the manner in which they defend themselves in court. Although it would be difficult to address all of these changes in a single paper, the purpose of this current entry is to provide an overview of the most significant events that evoked changes in the manner in which terrorists are portrayed, pursued, and prosecuted as well as the way in which terrorists and their defenders have responded to federal prosecutorial efforts. The specific ways in which federal agencies respond to terrorism, however, are rooted in much larger political and social issues.

American Terrorism And Governmental Response In Historical Context

For whatever reason, the United States has avoided the concept of “political crime” and “political criminality.” Some have contended that this is due to ideological considerations – that America has tried to portray itself as a nation characterized by consensus and, as a result, America is simply immune to violent political conflict (Ingraham and Tokoro 1969; Turk 1982). For many years, terrorism and political crime were associated almost exclusively with the extreme left and Marxist revolutionaries. The Cold War, communism, Fidel Castro’s support of revolutionaries in the United States, and the civil rights and student antiwar movements of the 1960s and 1970s shaped America’s views on those who sought political change through violence and terrorism. Terrorists came to be described as exclusively young, Marxist, urban, educated revolutionaries who were bent on destroying capitalism (Russell and Miller 1977; Smith and Morgan 1994). The potential threat posed by these revolutionaries was not lost on the FBI. Efforts to suppress the activities of the Black Panthers and other leftist groups through the FBI’s now infamous counterintelligence program (COINTELPRO) of the late 1960s and early 1970s are well documented (Poveda 1990).

Abuses within these programs and the impact of Watergate in the mid-1970s severely tarnished the public’s image of the FBI. Confidence in the agency was shaken, and Congress and the American people demanded change. In the wake of the post-Watergate investigation, two significant events occurred that helped shape the definition of American terrorism and how the federal government responds to it. First, in April 1976, new FBI investigative guidelines were implemented under the guidance of then Attorney General Edward Levi. The guidelines identified the standards by which internal security investigations could be initiated and the length of time they could last (Hearings 1978). As evidence of this change, the number of domestic security investigations dropped from more than 20,000 in 1973 to less than 200 in 1976 (Elliff 1979). Second, in August 1976, the FBI dismantled its domestic intelligence units, moving investigations of domestic terrorism from its Intelligence Division to the General Investigative Division (Kelley and Davis 1987; Poveda 1990). This move limited the types of investigative techniques that could be used in terrorism cases to the standards used for traditional crimes.

The impact of these changes was two-fold. First, it reaffirmed that terrorism in the United States was to be viewed as “conventional crime” and that terrorists were to be treated as such. Second, it marked the end of an era in FBI history in which the agency focused on domestic intelligence gathering. The next generation of FBI agents generally was trained to avoid data collection on American citizens. The FBI adopted a much more “reactive” stance, investigating terrorist groups only when a “criminal predicate” could be established. The more proactive “intelligence gathering” days of the pre-Watergate and COINTELPRO era were replaced with a desire to restore the FBI image and characterized by a reluctance to invade the “personal privacy” of domestic extremist groups. Domestic terrorist groups that survived the FBI’s COINTELPRO operated almost with impunity during the late 1970s and early 1980s. During this time, the number of terrorism incidents in the United States reached its zenith according to the FBI’s annual reports on Terrorism in the United States. (It should be noted that the title of the FBI’s annual reports has changed over the years. Initially, they were called FBI Analysis of Terrorist Incidents in the United States. In 1984, the title was changed to FBI Analysis of Terrorist Incidents and Terrorist Related Activities in the United States. The 1986 report reverted to the pre-1984 title. In 1987, the FBI adopted the title Terrorism in the United States followed by the year of the report.) Leftist terror continued unabated, Puerto Rican separatists targeted both the island and the US mainland, and far-right terrorism emerged partly as a response to gains made by African Americans as part of the civil rights movement. But like Watergate and COINTELPRO, which triggered the changes described above, new events would swing the pendulum to the other direction.

The Impact Of President Reagan On Counterterrorism Policy

With the election of Ronald Reagan in 1980, a substantially different trend in federal response to terrorism began to emerge. A staunch conservative President Reagan saw leftist and Puerto Rican separatist groups as significant threats to American security. The FBI, however, was reluctant to reengage in domestic intelligence. Congressional criticism of the FBI subsequently mounted. A seminal event would trigger renewed FBI vigilance. In October 1981 in Nyack, New York, an armored truck was robbed in an incident that left two police officers dead. The robbery involved members of the long-forgotten Weather Underground and Black Liberation Army, which had also been providing assistance to the Puerto Rican separatist group, the Armed Forces of National Liberation (FALN). Later that year, members of another holdover leftist group from the mid-1970s, the United Freedom Front, killed a New Jersey state trooper. The leftist threat suddenly appeared to be quite real.

These and other events resulted in revision of the Levi guidelines for FBI investigations. The new guidelines, issued by Attorney General William French Smith in 1983, set the standard for FBI investigations of domestic terrorism groups for the next 20 years. Although minor modifications were made by subsequent attorney generals, the theme and spirit of the “Smith Guidelines” remained intact until modifications after the September 11 attacks in 2001. After the Smith guidelines were issued in the spring of 1983, the FBI implemented a series of counterterrorism initiatives, including the creation of counterterrorism task forces around the country to combat specific regional and local threats. The success of these efforts was remarkable. Leftist groups like the Weather Underground and its radical East Coast offshoot, the May 19th Communist Organization, the United Freedom Front, and the Puerto Rican groups, the Macheteros and the FALN, were decimated by arrest, indictment, and convictions in federal courts. The extreme right met a similar fate. Leading members of the Order, the Sheriff’s Posse Comitatus, the White Patriot Party, and the Aryan Nations, among others, were indicted and convicted in a series of dramatic trials in the mid to late 1980s.

The Smith Guidelines were quite explicit – terrorism investigations were to be “concerned with the investigation of entire enterprises, rather than individual participants [emphasis added].” Furthermore, terrorism investigations could not be opened unless “circumstances indicate that two or more persons [emphasis added] are engaged in an enterprise for the purpose of furthering political or social goals… that involve force or violence and a violation of the criminal laws of the United States” (Office of the Attorney General 1983). Although the Smith Guidelines provided an opportunity for the FBI to reestablish itself in collecting domestic intelligence, the new policy was clearly intended to prevent a return to the abuses of the past. Furthermore, the FBI continued to self-impose restrictions on when terrorism investigations could be opened. Although the new guidelines did not mandate the necessity of a “criminal predicate,” the term came to be the standard descriptor used by agents when discussing the threshold for opening a terrorism enterprise investigation.

For domestic terrorists, the Smith Guidelines had a significant impact in four major ways. First, a “focus on groups rather than individuals” would later lead terrorist groups in the USA to implement “leaderless resistance” or lone wolf strategies in an effort to avoid terrorism investigations. Second, the guidelines made it clear that dismantling a terrorist organization, primarily by decimating its leadership, was more important than convicting the actual perpetrators of specific terrorist incidents. This approach had a significant impact on negotiated pleas as a result of plea offers to cadre members in exchange for governmental cooperation against key leaders. Third, the FBI continued its “reactive” policy begun under Levi, as evidenced by a reluctance to get involved in domestic intelligence gathering. The number of active terrorism investigations generally ranged from 8 to 12 in any given year (although the actual number and names of groups investigated is classified) from 1983 to the end of the century. Finally, the FBI and Department of Justice continued to maintain the position that terrorists should be perceived, portrayed, tried, and punished as “conventional” criminals (Smith and Damphousse 1996).

Complicating this scenario was a new emphasis on international terrorism under Reagan’s administration. As a result of the bombing of the US Marine Corps barracks in Beirut in 1983 and the bombing of the LaBelle Disco in Germany, which targeted American service members, Reagan pushed for greater authority and jurisdiction in dealing with terrorism overseas. With passage of the Comprehensive Crime Control Act of 1984 and the Omnibus Diplomatic Security and Antiterrorism Act of 1986, the federal courts now assumed jurisdiction over terrorists who committed acts of terrorism against US citizens or property overseas. These persons were typically investigated under a different set of FBI investigative guidelines – the Attorney General Guidelines for FBI Foreign Intelligence Collection and Foreign Counterintelligence Investigations (FBI 1998). While classified, it is clear that investigations involving international terrorists provided greater latitude to investigators than investigations under the domestic guidelines. Essentially, a “dual system” was emerging in which domestic terrorists were portrayed as “common criminals,” while international terrorists were much more likely to be portrayed and described as “terrorists” (Smith 1994). This line of reasoning emerged in the 1990s and was in place when international threats to the US homeland began to become a reality.

America Awakens To The Threat Of Terrorism

Despite having a long history of domestic terrorism, prior to the 1990s, most Americans viewed terrorism as something that happened in Europe and the Middle East. We typically viewed ourselves as immune from the leftist-anarchist terror associated with the Red Brigades, Black September, and the Baader-Meinhof Gang. The first World Trade Center bombing in 1993 and the Murrah Federal Building bombing in 1995 awakened the American public to the catastrophic damage that terrorists can inflict on a nation. Although the latter event precipitated significant focus on the extreme right and the so-called militia movement in the late 1990s, the first WTC attack was a seminal event for federal officials. Although Islamic extremists had targeted Americans overseas since the Iranian Revolution in 1979, the US mainland had remained relatively secure. That perception changed for federal officials in 1993. Subsequent plots uncovered over the years that followed relating to the bombing of New York City landmarks further emphasized that the threat of international terrorism on American soil was no longer merely a “threat.”

Congress responded by passing the Antiterrorism and Effective Death Penalty Act of 1996. One of the most notable provisions of the Act involved the designation of “foreign terrorist organizations” (FTOs) and penalties for providing material support to any group on this official list. For scholars studying those indicted for terrorism-related activities in the United States, the law created a new, and fairly large, group of persons indicted in federal courts. Over the next decade (1996–2006), over 325 persons would be indicted for providing material support to foreign terrorist groups. Emphasis on identifying these perpetrators blurred the previously rather simple distinctions between “domestic” and “international” terrorism. In the past, almost all domestic terrorists had been American citizens, while the overwhelming majority of international terrorists had been noncitizens. By the turn of the century, identifying who was being investigated under which set of Attorney General’s (AG) Guidelines was becoming “muddied.” After the attacks of September 11, 2001, it became even more difficult to distinguish.

Prior to 9/11, most domestic terrorists were portrayed in court as common criminals. In most cases, every effort was made to avoid raising the specter of a “political trial.” Common practices used by both defense and prosecutors included filing motions “in limine” to avoid mention of the word “terrorist,” the name of the terrorist group, or the ideology to which the group adhered; avoiding seditious conspiracy charges; and using “presumed” or “strict liability” counts that did not require mention of the terrorists’ intent in order to obtain a conviction. Prosecutors had learned over the past 20 years that discussion of “motive” in terrorism trials could be extremely hazardous to conviction rates.

In contrast, international terrorists were usually portrayed quite differently. In many cases, their trials were explicitly politicized, and the defendants were frequently called “terrorists,” “revolutionaries,” and other terms that evoked a threat to national security. The successful conviction of the first WTC bombers and their associates in 1995 represented the first successful prosecution of terrorists on seditious conspiracy charges in over a decade.

Policy Changes After September 11

After September 11, the strategies used to combat terrorism in the United States underwent dramatic change. In broad terms, American antiterrorism policy is now focused on terrorist organizations, affiliated networks, and state sponsors in an effort to identify potential terrorist threats and proactively prevent future attacks. In a seminal statement released after September 11, Attorney General John Ashcroft explained that the policy of the United States Government changed from prosecuting terror-related crimes that had already occurred to thwarting attacks before they could happen (Ashcroft 2002).

Prior to this time, the FBI had remained primarily a “reactive” agency – in which “preventive” intelligence gathering played second fiddle to the more conservative standard associated with a “criminal predicate.” After September 11, 2001, Congressional and public complaints regarding why the FBI did not have an intelligence apparatus in place to prevent such an attack were commonplace, and the nation moved quickly to encourage intelligence gathering and intelligence sharing.

With these new proactive goals in mind, the US Congress and Executive Branch agencies changed a number of policies to provide new tools for combating terrorism. The creation of fusion centers, the National Counterterrorism Center, and passage of new, less restrictive investigative guidelines by Attorney General Ashcroft reflected this paradigm shift. Some policies expanded legal authority to engage international terrorism that occurs away from American soil (Perl 2003). Other policies expanded legal authority to intercept, investigate, and prosecute domestic terrorists.

The research presented here focuses on changes in domestic policies that affected the prosecution of terrorists. For example, the Antiterrorism and Effective Death Penalty Act was revisited, and the USA PATRIOT Act of 2001 (Patriot Act) was created to extend and strengthen US antiterrorism policy. In addition, the Executive Branch changed Department of Justice policy on how the FBI and US attorneys would handle the investigation and prosecution of terror suspects, namely, through the aforementioned Ashcroft guidelines.

Pre-9/11 AG investigative guidelines (Smith) had required FBI field offices to refer potential terrorism investigations involving two or more persons to the director or assistant director of the FBI; they, and only they, could authorize a “terrorism enterprise” investigation. Once the director authorized such an investigation, he had to report that fact to the Office of Intelligence Policy and Review. The prior guidelines also required the director or another top official to monitor the progress of the investigation at 180 day intervals. Section (B)(4)(a) of the Ashcroft Guidelines loosened those standards by allowing agents in the field to authorize a terrorism investigation for a period of up to 1 year (unlike the Smith Guidelines, the Ashcroft Guidelines allowed the Special Agent in Charge to renew the investigation without additional authorization from FBI HQ). While a field office was required, within 1 year, to report to FBI HQ any terrorism investigations it initiated and provide reports, permission to open an investigation was no longer necessary. The research that follows examines how these changes impacted government interventions in, and outcomes of, federal terrorism cases.

Terrorism On Trial

Defendants investigated as suspected terrorists under the Attorney Generals’ Guidelines and later charged with crimes in federal court have been the focus of empirical research for more than 20 years, in part, because they behave differently than similarly situated federal defendants and they have been processed differently by the federal criminal justice system. Each phase, from investigation strategies and charging decisions, to prosecution and defense strategies and their relationship to negotiated pleas and trial outcomes, to conviction rates and sentencing outcomes, deserves separate treatment.

Investigating And Indicting Suspected Terrorists

In the early 1980s, the government’s response focused on infiltrating terrorist cells, either by undercover government agents or by turning rank and file members of suspected terrorist organizations into confidential informants, and gathering evidence of planned operations and attacks for the purpose of charging group leaders with conspiracy crimes centered on those plans. The impetus on indicting leaders and putting them behind bars was driven by the policy goal of tearing the organizations apart from the top down. By targeting group leaders, the government hoped to disrupt the groups and help assuage the threat of their radical agendas.

US Responses to Terrorists Research Paper

This policy was time-consuming, requiring time to infiltrate and build relationships with group members, but prior to September 11, the FBI and other federal agencies had successfully infiltrated groups to the extent that 29 % of all cases filed in federal court involved an undercover agent (see Table 1). Federal agencies were even more successful in convincing group members to turn states evidence. Prior to September 11, prosecutors were using evidence provided by confidential informants in 59 % of all federal terrorism cases (see Table 2).

US Responses to Terrorists Research Paper

The post-September 11 policy shift ushered in new strategies directing federal investigators and prosecutors to arrest and prosecute suspected terrorists more proactively. In an effort to disrupt potential threats, the policy goal of infiltrating groups and building conspiracy cases gave way to prosecuting suspected terrorists for any crime as soon as there was sufficient evidence to do so. This shift had a profound and predictable impact on the type of investigations the government conducted, as well as the proportion of cases involving successful infiltration. As Tables 1 and 2 suggest, after September 11, the government made use of confidential informants in just 14 % of cases filed against suspected terrorists and undercover agents in only 3 % of those cases. It should be noted that Smith et al. (2011) found no significant drop in the amount or quality of evidence provided by confidential informants after September 11, though the average number of confidential informants per case did decrease.

Fewer informants and undercover agents to provide evidence resulted in prosecutors moving forward with a smaller proportion of cases in the post-September 11 era that were based on evidence of complex conspiracies. In turn, prosecutors relied on a greater variety of statutes to convict suspected terrorists (Shields 2008; see also, Chesney 2007; and Bradley-Engen et al. 2011). Indeed, the number of cases involving planned acts of terrorism dropped substantially after September 11. Shields (2008) and Jackson (2011) determined that the proportion of cases linked to planned or completed terrorism events declined from 84.2 % to 29.9 % after the policy change.

Not only did the government shift the types of cases it pursued, it pursued more of them. From 1980 to 2001, the government prosecuted approximately 500 individuals after they were referred by the FBI following a domestic security/terrorism investigation. According to Smith et al. (2011) and Shields (2008), over 500 individuals were similarly referred and prosecuted in the first 4 years following September 11, 2001, and that number increased to nearly 1,000 by the end of 2009 (see also, Greenberg 2011). In addition, the average number of defendants per case decreased after September 11, dropping from ten to four defendants, and the average number of counts per indictment decreased from 13.8 to 7.9 (Shields 2008; Smith et al. 2011). The average severity of charges filed against terrorist defendants also decreased (see, Shields 2008; Jackson 2011; and Smith et al. 2011). Post-September 11 policy changes also impacted the prosecutorial and defense strategies used once suspected terrorists were indicted.

Prosecuting And Defending Suspected Terrorists

Among the more intriguing aspects of prosecutions involving suspected terrorists are the strategies used by prosecutors to convict them and the strategies used by defense attorneys to counter federal prosecutors. Smith (1994) observed that in some cases federal prosecutors explicitly politicize the ideological beliefs and political motives of a suspected terrorist defendant. Prosecutors using this strategy frequently seek conspiracy charges that openly tie the predicate criminal act to the defendant’s group affiliation or ideological beliefs. This, in turn, is typically done in concert with labeling the defendant as a member of an extremist group or the follower of an extremist ideology in charging documents, motions, and in open court.

Federal prosecutors used this strategy in the majority (64 %) of the cases they pursued before September 11 (Shields 2008; Smith et al. 2011). Prosecutors also employed a second, subtler strategy that implied a link between the defendant and terrorism. Prosecutors using this strategy seek counts charging defendants with any number of crimes, but unlike the previous strategy, prosecutors make no attempt to link the defendant’s alleged crimes to terrorism in the indictment. Rather, prosecutors drop “hints” during open court implying the defendant belonged to an extremist group or held extremist views. Shields (2008) reported the use of these hints at all phases of the criminal prosecution, from bail determinations to sentencing hearings. Prior to September 11, prosecutors used this strategy about 25 % of the time.

The third strategy, the conventional approach, involved treating suspected terrorist defendants as traditional offenders, and in doing so, prosecutors avoid any reference to the defendant’s group affiliation or belief system. Smith (1994) observed cases where federal prosecutors filed motions in limine to prevent defendants from using their trials as a soapbox to draw attention to their cause. While the conventional strategy was only used in one out of ten cases before September 11, prosecutors relied on it in half of all cases afterward (see Table 3). There has been a marked and corresponding decrease in the use of both politicized strategies (explicit 33.9 %; implicit 15.9 %) after September 11.

US Responses to Terrorists Research Paper

Shields (2008) and Smith et al. (2011) have suggested that the increased use of conventional prosecution strategies may be a result of the aforementioned proactive policy to prosecute suspected terrorists earlier leading to a decrease in the number of confidential informants and the evidence they would provide. Whether that is the case, defense attorneys have responded by using more traditional defense strategies and, as will be discussed below, defendants are pleading guilty at a higher rate.

In response to politicized prosecution strategies, defense attorneys developed a number of strategies calculated to counter prosecutors. Defense attorneys who presented evidence that their clients were the focus of political persecution because of their beliefs dropped from 22.5 % before September 11 to 13.9 % afterward (see Table 4). Similarly, defense attorneys who tried to disassociate their clients from a terrorist group or ideology decreased from 32.8 % to 9.6 % after September 11. Probably due to prosecutors increased reliance on conventional prosecution strategies, defense attorneys turned to conventional defense methods in greater numbers, from 44.6 % to 76.4 %, after September 11.

US Responses to Terrorists Research Paper

Case Outcomes In Terrorism Trials

Differences in the investigation and indictment of suspected terrorists, as well as the strategies used to prosecute and defend them, resulted in significant differences in case outcomes. While the conviction rates for indicted defendants increased slightly from 77.1 % in the pre-September 11 era to 78.1 % in the post-September 11 era, the means by which those defendants were convicted differed dramatically (see Table 5).

US Responses to Terrorists Research Paper

The biggest change occurred in the proportion of defendants who entered guilty pleas versus those who went to trial between the eras. While less than one-half (43.2 %) of defendants indicted prior to September 11 pleaded guilty, more than two-thirds (66.5 %) did so after September 11. Mistrials and dismissals increased after September 11 from 14.7 % to 20.0 %, and jury convictions decreased from 33.9 % to 11.5 %.

It is possible that the “early prosecution” mandate demanded by Attorney General Ashcroft impeded the government’s ability to infiltrate extremists groups with agents, and likewise, it may have limited the amount of time government agents had to develop relationships with potential informants who were associated with group members. In preliminary studies, Shields (2008), Jackson (2011), and Smith et al. (2011) do suggest a significant shift in the way the government pursued and prosecuted terrorists after September 11.

The policy shift may have been responsible for limiting the amount of evidence available to prosecutors. Shields (2008) suggested that less evidence probably caused a shift in the type of cases prosecutors pursued and the type of prosecution strategies they employed resulting in an increase in negotiated pleas. It is also possible that these lower levels of evidence might be the cause of the noted increase in the number of case dismissals. Significant changes in sentencing occurred as well.

Sentence Outcomes For Convicted Terrorists

While conviction rates increased after September and, ostensibly, defendants were charged with slightly less severe lead offenses, Smith et al. (2011) noted an average drop of 138 months in average prison sentences after September 11, from 203 to 65 months. While the gap narrowed to 120 months when immigration and financial fraud cases were excluded from the post-September 11 cases, there remained a rather dramatic and statistically significant difference between the eras. These findings are not unique (see also, Terrorism Trial Report Card, Center for Law and Security 2010).

It is important to note that it is somewhat inappropriate to simply use “sentence in months” as an indicator of changes in sentence length over the past 30 years due to changes in federal sentencing procedures. Changes in federal sentencing policies render direct comparisons tenuous at best. One goal of the federal sentencing guidelines was to reduce disparity among “similarly situated” defendants. Smith (1994) and Smith and Damphousse (1996) addressed this issue and found that individuals involved in terrorism cases received sentences that were, on average, about three and one-half times longer than others convicted of the same lead offenses. A later examination of post-sentencing guidelines in terrorism cases found that this disparity had dropped considerably but that it remained significant (Smith and Damphousse 1998).

The magnitude of the reduction in sentencing disparity in the post-September 11 era suggests that a number of other factors may be at work. First, there was a small but significant decrease in count severity in lead offenses in post-September 11 cases. This likely had a small but significant impact on the average sentence length. Second, one would expect shorter prison sentences for defendants who plead guilty as compared to those who are convicted at trial. As noted above, prosecutors and defendants agreed to plead guilty in two-thirds of all cases filed after September 11, an increase of 23 % from before September 11. Third, Jackson (2011) determined that prosecutors were more likely to accept guilty pleas on fewer counts within an indictment in the post-September 11 era, reducing the opportunity for consecutive sentences. Jackson found the percentage of unconvicted counts per indictment before September 11 was roughly 37 % while the percentage of unconvicted counts per indictment after September 11 was about 82 %. In essence, a chain of events is probably responsible for the decline in sentence length. As the FBI has moved to a “proactive” rather than “reactive” stance regarding terrorism after September 11, they have begun to intervene earlier in investigations. This frequently means evidentiary strength is not as great in these cases (Jackson 2011), which results in greater willingness among prosecutors to negotiate a plea agreement.


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