The Legal War on Terror at Home.

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Tomgram: Greenberg on the Legal War on Terror at Home

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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."

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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.

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Terrorists do indeed exist who would like to do great damage to the United States, but convictions like those in the President's cases are generally less than helpful in the defense against them. If anything, they lull Americans into a false sense of security, into a sense that important terrorists are indeed being convicted and jailed for crimes or plans of significance. In the meantime, most of these cases represent, at best, sloppy prosecutions; at worst, fraudulent ones. In all of them, there is a powerful sense of apparent desperation and hype, of prosecutors flailing about as if there were nothing more important than simply declaring, "Yes, we have found sleeper cells; yes, there is danger in our midst; yes, we are winning this war in the homeland."

The fact is that the political expediency of the war on terror has undermined the strategy of an effective pursuit of terrorists. The rush to prosecution, the pressure to get convictions, even the holding of detainees without charging them, speaks more to politics than to justice, more to appearances than substance. It is time for the courts to assert their professionalism, to prosecute alleged terrorists carefully, without a rush to judgment, and in so doing to help the legal war on terror take its rightful place in the annals of American jurisprudence.