Finally, Some Sanity (and Accuracy) in Assessing DOJ Terrorist Financing Efforts
by By Jeffrey Breinholt
February 16, 2008
There has been quite a bit of gloating over the last few years about so-called Department of Justice failures in terrorist financing enforcement since 9/11. These public statements typically claim that the government has failed to win any terrorist financing case, and they generally arise after prosecutors failed to win particular trials, even where the results were not outright losses. Prosecutions in Dallas, Chicago and Tampa are the prime examples of this, even though the defendants in those cases would be surprised to find out they were acquitted as they sit in their prison cells. It seems that no one has bothered to tell them that they are free to leave. Perhaps these critics know something that the courts and the Bureau of Prisons do not.
As a person who has more than a passing interest in the success of the Department of Justice's terrorist financing program, I had planned to put up a website showing that successes in these cases outnumber the failures by a 10-to-1 ratio. Alas, Professor Robert Chesney of Wake Forest University beat me to the punch. Last week, his empirical study was published by the Lewis and Clark Law Review. Here's what it shows:
We can judge the Department of Justice's terrorist financing record since 9/11 by looking at how many people have been charged and convicted of the two main terrorist financing crimes: 18 U.S.C. §2339B and the terrorism-related economic sanctions cases brought under 50 U.S.C. §1705 (also known as the International Emergency Economics Power Act, or IEEPA).
Professor Chesney (who testified before Congress last week on the states secret privilege) notes that DOJ charged 44 individual defendants with at least one count based on IEEPA's terrorism-related regulations between September 11, 2001 and July 2007. Charges against 16 of these defendants remain pending (eight of the defendants are not yet in U.S. custody, while eight others are but await trial). Of the 28 defendants whose IEEPA charges have proceeded to disposition, 20 have been convicted on at least one IEEPA charge (seven by jury, one by bench trial, and 12 by plea agreement). Of the eight defendants who were not convicted, four had their IEEPA charges dismissed in connection with a plea to other charges, two were acquitted by a jury, one was acquitted by bench trial, and the charges against one were dropped after the defendant was killed overseas.
Between September 2001 and July 2007, a total of 108 individual defendants were charged with at least one count under § 2339B (including direct violations as well as conspiracies and attempts to violate the statute). The charges remain pending against 46 of these defendants at the time of Professor Chesney's writing, with 23 of them not yet in U.S. custody and 23 others in custody but awaiting trial. Of the 62 defendants as to whom the § 2339B charges have been resolved, 39 have been convicted on at least one § 2339B-related count, with nine of these convicted by jury and thirty others convicted pursuant to a plea agreement. Another 11 defendants pled guilty to other charges, and had their § 2339B counts dropped as a result. The government moved to dismiss the charges against one additional defendant after the individual died overseas. Eight of the remaining defendants were acquitted on the § 2339B charges they faced (one by bench trial, seven by jury), and three others successfully moved to have the charges against them dismissed prior to trial.
Do you want to know the names of the people who fall in these categories? Professor Chesney delivers. His article contains charts in which the defendants, the case location, the case number, the charges and the dispositions are listed. It is a truly remarkable piece of work. I wish I had written it.
The same law review issue also contains an excellent article by my friend and former colleague, Kelly Moore, on how we ignore the criminal law enforcement tools in counterterrorism at our peril. Kelly is now a partner at the New York office of a major Philadelphia law firm, and she successfully prosecuted a prominent Yemeni religious leader for terrorist financing when she was a federal prosecutor in Brooklyn, in a case that appeared unwinnable once the government informant literally immolated himself on the White House lawn to protest how he was being handled by the FBI. Kelly's experience in this case - for which she and Pam Chen and the team of FBI agents richly deserved all the accolades they received - drives her argument, which is similar to what I have been preaching about the vital role of prosecutors in counterterrorism.
The Lewis and Clark Law Review issue containing these articles can be found online. These articles will undoubtedly be inconvenient for those who don't think lawyers deserve a place at the counterterrorism table.