Legal Commentary

When seven ragtag men in a Miami religious sect were indicted in 2006 for their role in a bizarre plot to blow up the FBI Miami office and Chicago's Sears Tower, then- Attorney General Alberto R. Gonzales said the case represented "a new brand of terrorism" among homegrown gangs that "may prove to be as dangerous as groups like al-Qaeda."

Justice Department officials used similar rhetoric in a 2003 case against a Tampa-area man and his associates who allegedly supported a reign of terror by a violent Palestinian group. The officials did so again in a 2004 case involving a Dallas charity known as the Holy Land Foundation, which they said provided "blood money" to finance overseas suicide bombings.

But juries in all three cases saw things differently than the government's national security team. In the most recent disappointment for federal prosecutors, a jury last week did not reach a verdict in the Miami case for the second time. In the Holy Land case, one defendant was cleared of the charges and jurors deadlocked on charges against the others. After 12 days of deliberation, jurors in the Tampa case acquitted two men and could not agree on the charges against the main defendant.

The department's domestic terrorism record to date -- no new attacks, but few blockbuster convictions and some high-profile hung juries or acquittals -- has provoked criticism of its early strategy for going after homegrown terrorist cells and the people who fund plots well before deadly events occur.

Jurors appear to be particularly troubled by a controversial element in the Miami case, part of several other early prosecutions, in which FBI informants encouraged others to perform acts they otherwise may not have done.

The FBI's practices show these trends at work:

Independent commissions have urged the FBI to become more aggressive at detecting threats and neutralizing them before they explode. But what emerged was an approach where investigators sometimes acted very early, charging conspiracies to commit minor crimes or immigration and tax violations as a way to preempt potential threats, while avoiding the disclosure of sensitive intelligence.

Justice Department officials say they are pleased to have won a few high-profile convictions as well as some little-noticed guilty pleas. Increasingly, authorities say, their current goal is broader than a courtroom victory: It is collecting enough intelligence to eradicate a threat by using informants, wiretaps and other tools to get as clear a picture as possible .

"Our mission is not just to disrupt an isolated plot, but to thoroughly dismantle the entire network that supports it," FBI Director Robert S. Mueller III told an audience this month.

The FBI is bringing many of these cases to juries, and to this extent it is abiding by traditional prosecutorial methods. But it is using materials that cannot generate convictions beyond a reasonable doubt, and it appears to view prevention and disruption as more important than conviction by a jury. Thus, it is using the traditional methods of ex post prosecution for nontraditional purposes-- ex ante prevention.

To be sure, prosecutors may have brought prosecutions in the past largely for the purpose of disrupting criminal conspiracies, for example, in the case of organized crime. What we are seeing now is an extension of these older methods to deal with the threat of terrorism.

One can view this unconventional adaptation in two different ways. On the one hand, the FBI is willing to live with hung juries or acquittals to prevent possible threats to the country. On the other, it greatly increases the chances that it has been violating people's legal rights by bringing prosecutions too early and with insufficient evidence to convict. Although it plays by the procedural rules of jury trials, it brings prosecutions that it would not have brought in the past. That is to say, it is shifting more of the costs of its anti-terrorism strategy on unfortunate individuals who are not terrorists but who may get swept up in the FBI's preventative prosecution approach. Using the traditional mechanisms of the jury trial as a makeshift method of ex ante prevention is both costly as a matter of efficiency and worrisome from a civil liberties perspective. The FBI is doing what it can to stop terror plots given the tools at its disposal. But the larger question we as a society must face is whether there are more efficient uses of government resources that also do not needlessly shift the costs of criminal prosecution onto the innocent.

Full post as published by Balkinization on April 21, 2008 (boomark / email).