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Brian Levin, J.D.

Brian Levin, J.D.

Posted: September 20, 2009 01:01 PM

What This Week's Terrorism Arrests Reveal About the Post-9/11 Strategy

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The arrest of three Afghan men this weekend in Colorado and New York on federal charges related to a possible nascent terrorist plot in the United States involving IEDs casts a spotlight on an often ignored, but critical part of the government’s post 9/11 prosecution strategy.  All three men were arrested under a longstanding law that makes it a federal felony to lie to an investigator. Prior to 9/11 the statute was as likely to be ignored, as it was to be employed. However, in the post 9/11 era where interdiction before an attack is now the primary objective for authorities, 18 USC §1001 has emerged as the most common charge levied in terrorism related cases.

The use of this statute may have very well have prevented a variety of mass terrorist attacks, as it is a quick and effective way of getting violent prone extremists off the streets early -- before an attack takes place.  These dangerous folks often crack and lie under the gauntlet of professional interrogators aided by intensive search techniques. Civil libertarians argue, however, that this strategy often ensnares unsophisticated blowhards whose threat potential is minimal or overblown. The fact that the strategy is purposefully preventative in nature means that in many cases we’ll never be able to conclusively prove how bad the threat actually was.

The current case has some extremely disturbing details, but also has much that needs to be illuminated. Three men are in custody; Najibullah Zazi, 24, his father Mohammed, 53, arrested in Colorado and Ahmad Wais Afzali, 37, an imam from Queens, arrested in New York.  They were charged under 18 USC §1001 (a) 2. The specific allegation states that they “knowingly and willfully” made a “materially false, fictitious and fraudulent statement and representation in a matter involving international and domestic terrorism…”

The charges come after a wide-ranging frenetic investigation became public last week on the anniversary of 9/11.  The investigation involved phone intercepts, apartment, car, and computer searches as well as lengthy interrogations. The apparent main defendant Najibullah Zazi, an airport shuttle bus driver, underwent at least 28 hours of interrogation before his attorneys cancelled further FBI questioning on Saturday, hours before his nighttime arrest. Zazi’s public denials also became more murky over the course of the week.

Central to his arrest are Najibullah’s trip to the Northwest Frontier region of Pakistan and a handwritten note found on a laptop seized from a vehicle during a search in New York. The Pakistan territory is described in the affidavit, quoting the Center for Strategic and International Studies as:

“ground zero in the U.S. Jihadist war…[and] home to many Al Qaeda operatives, especially the numerous foreigners from the Arab world, Central Asia Muslim areas of the Far East, and even Europe who flock to this war zone for training, indoctrination, and sometimes respite from repression at home.” 

A nine page handwritten note, found on his computer “discussed jihad” and contained “formulations and instructions regarding the manufacture and handling of initiating explosives, main explosives charges, explosive, detonators and components of a fuzing system.”  The affidavit points to the younger Mr. Zazi potentially lying about his awareness and authorship of the note, which authorities contend resembles his handwriting.

However, no explosives or other “smoking gun” pointing to an imminent operation were discovered. David Kris, who heads the Department of Justice’s national security section stated, “The arrests carried out tonight are part of an ongoing and fast-paced investigation. It is important to note that we have no specific information regarding the timing, location or target of any planned attack.”

Authorities point out the investigation is ongoing and that it is possible that additional arrests or charges could result. The court documents also indicate that there is probably other evidence the government has that it has not yet divulged. One potential additional charge is providing material support to a terrorist organization.

Research from earlier in the decade shows that the government’s strategy in this case of using 18 USC §1001 is a common one. A report by the Washington Post in 2005 revealed that the most common type of charges in post 9/11 terrorism related cases upon which defendants pled guilty or were convicted involved lying to investigators, followed by terrorism and national security offenses, using illegal travel documents, and conspiracy.

A 2006 study of Justice Department records by a Syracuse University affiliated research center found that of the 1,391 cases of international terrorism referred by federal law enforcement to prosecutors after 9/11, 817 were declined for prosecution for reasons including a subsequent request by investigators (117), evidence issues (205), no chargeable federal offense (86), and other reasons (273). Another 239 cases were pending referrals, while 335 more resulted in prosecutions. Of the 335 cases sent to federal district court for criminal trials, 66 resulted in dismissal or not guilty verdicts, 56 were still pending, and 213 resulted in convictions. The study found the overwhelming majority of sentences were quite short with 90 resulting in no prison time and 91 more resulting in less than one year’s incarceration. Only 14 resulted in sentences of five years or more. The study also revealed that, in most recent years, terrorism related prosecutions dropped sharply, along with the length of sentences. For cases commenced in the two years following 9/11, the median sentence was only 28 days, compared to a median sentence of 41 months for those cases commenced in the two years prior to 9/11

 United States Federal Terrorism Related Trials By Type of Offense Charged Through 2005

Crime

No. Convictions

Lying to Investigators

75

Terrorism/National Security

46

Travel Documents

30

Conspiracy

29

Racketeering

27

Immigration

22

Note: Some individuals were convicted of more than one type of crime. Source: Eggen, D., Washington Post, June 12, 2005

One thing is certain, authorities have powerful tools to get people off the streets in the array of statutes that they have at their disposal.  They also have an extraordinarily difficult job of balancing their obligations. On the one hand they must uphold civil liberties, while also protecting us from the very real threat of a small, but determined number of anonymous extremists bent on doing the nation harm through a mass terror attack. 

 

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