Creating “Terrorism” Out of Misdemeanors

Bush Administration manipulating statistics on terrorism investigations, convictions

By Bert Dalmer 
First published by the Des Moines Register, May 16, 2005

Editor’s note: We posted this report by Mr. Dalmer last year, which exposed some of the absurd cases classified as “terrorism” by the Bush Justice Department.

Newly released documents show that the U.S. Justice Department has greatly broadened how it defines and counts terrorism-related cases, a move that helped justify the department’s call for more funding and greater powers. However, the scant information provided about those cases has watchdog groups and members of Congress crying foul.

The criticism comes in the wake of independent reports suggesting that federal prosecutors have overstated their success in preventing further terrorist activity and attacks. Among the terrorism cases that have been identified in Iowa: the arrests of three contractors, all American, who failed to report drug convictions prior to starting work at airport runway jobs.

“I don’t know why they would call those terrorism cases,” said U.S. Sen. Charles Grassley, an Iowa Republican. “They are obviously not.”

Justice Department memoranda obtained by The Des Moines Register under the Freedom of Information Act show officials loosened record-keeping practices and broadened the definition of terrorist crimes before the department reported a surge of new terrorism-related prosecutions in the years following the Sept. 11, 2001, attacks.

The records show that top officials instructed federal prosecutors nationwide to catalog their work in ways that served to inflate the number of terrorism investigations. Even tips that were immediately disregarded, the memos show, were to be counted as terrorism-related investigations.

The higher numbers have since been cited in budget requests and in defense of the expansion of police powers, such as those granted by the controversial USA Patriot Act, which is up for renewal in Congress this summer.

Grassley, the senior member of the Senate Judiciary Committee, said he and his staff were “oblivious” of the changes in how terrorism cases were being counted. He said he has yet to hear back on an inquiry he made in early 2004 into massive discrepancies in terrorism arrest figures that the Justice Department presented in two different settings.

“I’m always cynical about (the executive branch) padding the numbers to justify more appropriations,” Grassley said. “If it’s found that’s the case, we ought to raise Cain with them, so they know that we’re watching and they aren’t going to get away with it.”

Justice Department representatives failed to return repeated messages seeking comment. In the past, officials explained that the sharp increase in cases was a reflection of a renewed vigor to disrupt terrorist threats.

In one Justice Department memo in 2002, a top official emphasized to prosecutors that following the new statistical guidelines was of utmost importance.

“We know that over time we will be called upon to report on the volume, type and outcome of your terrorism and anti-terrorism matters,” Deputy Director Theresa Bertucci wrote to federal prosecutors. “In an effort to account completely and accurately for all of your work, we must capture all terrorism and anti-terrorism matters and cases.”

In the past, some prosecutors have said that they sometimes charge people linked to terrorist activity with lesser crimes where evidence is weak, just to see that they are deported. They also want credit for investigations that seek to detect terrorist activity but which lead to arrests not related to terrorism.

“The fact that many terrorism investigations result in less serious charges does not mean the case is not terrorism-related,” former department spokesman Mark Corallo said in 2003.

However, the Justice Department has also rebuffed calls by Grassley and other officials to support its claims with case particulars that could put the public more at ease.

“Since Sept. 11, Americans have been asked to accept restrictions on their liberties. They deserve to know what they are getting in return,” said U.S. Sen. Patrick Leahy, a Democrat from Vermont, in a hearing on the Patriot Act last week.

This year, for the first time since the Sept. 11 attacks, the department omitted without explanation any figures on terrorism-related investigations and convictions in its annual performance report.

The omission followed an audit by Congress’ investigative arm, the Government Accountability Office, that criticized the accuracy of the statistics. The statistics account for the number and nature of leads from citizens and law enforcement agencies, and are grouped into crime categories defined by Justice Department policymakers.

In a series of memos sent to the nation’s prosecutors between September 2001 and April 2003, records show that the Justice Department:

. Required that any investigation involving a suspected terrorist link, even if unsubstantiated and unprosecuted, be counted as terrorism-related.

. Expanded the number of terrorism-related crime categories from two to six. Now, when federal authorities looking for terrorists make an arrest for other reasons, the case is logged by prosecutors as “anti-terrorism.”

. Exempted terrorism cases from a policy that generally counts leads only when prosecutors spend an hour investigating them. Unlike leads on conventional crimes, those on alleged terrorist activities are now immediately logged by prosecutors even if they are disregarded.

In the two years after the policy changes took effect, federal prosecutors were credited with winning 1,065 terrorism-related convictions. In the year leading up to the Sept. 11 attacks, prosecutors took credit for only 29 such convictions. Hundreds of additional arrests by the FBI and other law enforcement agencies have also been reported.

The Justice Department has identified few of the defendants, even at the request of Congress.

David Burnham, a Syracuse University researcher and author whose 2003 report on terrorism statistics provided new insight into the department’s handling of the cases, said the new reporting methods “of course would lead to more numbers” of such prosecutions.

“How much?” he said. “You can’t quantify it. There was an increase of government activity against terrorism, too.”

Burnham said he can appreciate the Justice Department’s interest in tracking the government’s anti-terrorism activities more closely. But he is skeptical that the jump in prosecutions was based purely on the initiative of federal agents.

“For decades, crime statistics have been manipulated for political reasons,” he said. “Many administrations have used that data to toot their own horns in inaccurate and misleading ways.”

Since the release of Burnham’s report, news organizations across the country have used the information to identify some of the government’s so-called terrorism targets: college entrance exam cheaters, check forgers, sham husbands and those who overstay visas, among them.

Of the 35 terrorism-related cases cited in Iowa in the two years following the Sept. 11 attacks, most that could be identified by the Register involved fraud or theft. Three were connected explicitly to terrorism: Luke Helder, an accused mailbox bomber who has not been deemed mentally fit to stand trial; and Youssef Hmimssa and Brahim Sidi, who marketed fraudulent documents to illegal immigrants, including members of a terrorist sleeper cell in Detroit.

© 2005 Des Moines Register