Since the attacks of September 11, 2001, the highest priority of the Justice Department has been to protect America against acts of terrorism. Despite repeated and sustained efforts by terrorists, there has not been another terrorist attack on American soil in the past seven years. During this time, the Justice Department has significantly improved its ability to identify, penetrate, and dismantle terrorist plots as a result of a series of structural reforms, the development of new intelligence and law enforcement tools, and a new mindset that values information sharing, communication and prevention. Working with its federal, state, and local partners as well as international counterparts, the Justice Department has not rested in its efforts to safeguard America.
I. Protecting America Through Investigation and Criminal Prosecution
Since 9/11, federal prosecutors have had considerable success in America's federal courtrooms identifying, prosecuting, and incarcerating terrorists and would-be terrorists. These prosecutions have routinely produced cooperating defendants who have, in turn, provided intelligence information leading to further investigation, disruption and prosecution.
In each of these cases, the Department has faced critical decisions on when to bring criminal charges, given that a decision to prosecute a suspect exposes the Government’s interest in that person and effectively ends covert intelligence investigation. Such determinations require the careful balancing of competing interests, including the immediate incapacitation of a suspect and disruption of terrorist activities through prosecution, on the one hand; and the continuation of intelligence collection about the suspect’s plans, capabilities, and confederates, on the other; as well as the inherent risk that a suspect could carry out a violent act while investigators and prosecutors attempt to perfect their evidence.
While it might be easier to secure convictions after an attack has occurred and innocent lives are lost, in such circumstances, the Department would be failing in its fundamental mission to protect America and its citizens, despite a court victory. For these reasons, the Department continues to act against terror threats as soon as the law, evidence, and unique circumstances of each case permit, using any charge available. As Attorney General Mukasey has stated: "[W]hen it comes to deciding whether and when to bring charges against terrorists, I am comfortable knowing this: I would rather explain to the American people why we acted when we did, even if it is at a very early stage, than try to explain why we failed to act when we could have, and it is too late."
Using the Full Range of Available Statutes
To disrupt terrorist threats through prosecution, the Department has used a wide variety of statutes. The material support statutes (18 USC § 2339 A, B & C) have formed a critical component of the Department’s overall terrorist prosecutorial efforts, allowing prosecutors to target the provision of support, resources and other assistance to terrorists and to intervene during early stages of terrorist planning. They have also helped the government address individuals who participate in terrorist training before they have the opportunity to use that training for attacks.
The Department has also had success disrupting terrorist activity using other criminal statutes, including 18 USC § 2332b (terrorism transcending national boundaries), 18 USC § 2332a (use of weapons of mass destruction), 18 USC § 2332 (terrorist acts abroad, including murder, against U.S. nationals), 18 U.S.C. § 1203 (hostage taking), 18 USC § 844, 922 and 924 (explosives offenses), and 18 § USC 956 (conspiracy to murder, kidnap, or maim persons or to damage property overseas). In addition, the Department has used more general offenses, such as identity theft, immigration and false statement charges. Prosecution on such charges is often an effective method, and sometimes the only available method, of deterring and disrupting terrorist planning and support activities.
Notable Terrorism Prosecutions in Recent Years
II. Implementing Structural Changes to Enhance Counter-Terrorism Efforts
Over the past seven years, the Justice Department and its component agencies have fundamentally restructured their operations to better address national security threats and prevent terrorist attacks. Some of the major structural reforms include the following:
Transforming the FBI to Meet the New Threat
Since 9/11, the FBI has undertaken the most significant transformation in its history. The FBI has completely transformed its operations to better detect, penetrate, and dismantle terrorist enterprises – part of the FBI’s larger culture shift to a threat-driven intelligence and law enforcement agency. As part of this strategic shift, the FBI has overhauled its counterterrorism operations, expanded intelligence capabilities, modernized business practices and technology, and improved coordination with its partners. Some of the significant adjustments include:
Creating the Justice Department’s National Security Division
In Sept. 2006, the Justice Department formally established the National Security Division (NSD) to merge the Department’s primary national security components into a single division to more effectively combat national security threats. The division brought together the former Office of Intelligence Policy and Review, the Counterterrorism Section and the Counterespionage Section from separate parts of the Department. The new Office of Law and Policy, the Executive Office and the Office of Justice for Victims of Overseas Terrorism have completed the NSD. The division’s achievements to date include:
Updating Investigative Guidelines
Since the 9/11 attacks, the Justice Department has worked diligently to review and update its internal investigative guidelines to bring investigative practice into line with counterterrorism priorities, to improve interagency coordination, and to prioritize intervention and prevention of terrorist acts before they occur. These efforts have included the following steps:
III. Developing New Tools to Disrupt Terror Plots
Over the past seven years, the Justice Department has worked closely with Congress and other federal agencies to strengthen the nation's laws against terrorism, update the legal authorities needed to detect and disrupt terror plots, and tear down walls hindering intelligence and law enforcement officials from gathering and sharing information critical to protecting the nation. Some of the most significant changes in this area include the following:
The Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008
On July 10, 2008, the President signed into law landmark legislation that modernized the Foreign Intelligence Surveillance Act of 1978. The FISA Amendments Act of 2008, which passed with a bipartisan majority of Congress and broad support from the Intelligence Community, allows intelligence professionals to more quickly and effectively monitor terrorist communications, while protecting the civil liberties of Americans. Among other things, the law provides the following:
USA PATRIOT Act of 2001, USA PATRIOT Act Improvement and Reauthorization Act of 2005
The USA PATRIOT Act, which was signed into law on Oct. 26, 2001, has helped law enforcement identify, dismantle, and disrupt terrorist plots. The expiring provisions of the Act, including critical information sharing provisions, were reauthorized by the USA PATRIOT Act Improvement and Reauthorization Act of 2005, which allowed investigators to continue to use these vital authorities. These laws have helped law enforcement and intelligence agencies protect the nation in the following ways:
IV. Protecting the Privacy and Civil Liberties of Americans
As the nation’s primary law enforcement agency, the Justice Department strives to be a model for ensuring that Americans' privacy and civil liberties are forcefully protected in all the Department's counterterrorism and law enforcement efforts. Below are some of the advances made since 9/11:
V. Establishing Partnerships to Keep America Safe
In order to address terrorist networks operating around the world, the Department has increased its partnerships at every level of government in the U.S. and forged strong ties with its counterparts overseas. Some of these efforts include:
Coordinating with Federal, State and Local Partners
Coordinating with International Counterparts
In the past seven years, the Department has leveraged international law enforcement cooperation to target and dismantle terrorist enterprises both at home and abroad. In this area, the Department has:
VI. Military Commission Prosecutions
On Oct. 17, 2006, the President signed the Military Commissions Act of 2006 ("MCA"), which provided statutory authority to try alien unlawful enemy combatants for violations of the law of war. The United States has employed military commissions to try its enemies for violations of the law of war since the Revolutionary War. The MCA established a commission system with an unprecedented set of protections for wartime prosecutions. Since the law was enacted, the Justice Department has worked closely with the Defense Department on a wide range of investigative, prosecutorial and civil litigation issues related to the military commissions. Among other things, the Justice Department has:
VII. Looking Ahead: Combating Homegrown Terrorism & the Spread of Radicalization
Although the Department has achieved significant successes in its terrorism investigations and prosecutions to date, new fronts have emerged as terrorists and their sympathizers continue to radicalize others. These radicalization efforts are taking place on the Internet, in prisons, and in neighborhoods both at home and abroad. As in Europe, which is experiencing a growing problem with homegrown terrorists, the line between international and domestic terrorism is becoming less distinct within the United States. The Department has established several programs to combat the burgeoning threats of radicalization and homegrown terrorism.
Outreach to the Muslim, Arab and Sikh Communities
The Justice Department has placed a strong focus on promoting cultural understanding of those of in Arab, Muslim and Sikh communities, many of whom have been targets of backlash discrimination since 9/11. The Department has also worked hard to improve dialogue with these communities, forge lasting partnerships with them, and dispel myths and misconceptions. Among the actions taken:
Combating Terrorist Use of the Internet
The global terrorist movement has a substantial and growing presence on the Internet, where one can find anti-U.S. propaganda, tutorials on bomb making and religious justifications for acts of violence against innocent civilians. Terrorists continue to use the Internet to solicit funds, as well as for recruitment, radicalization, training and operational planning. This phenomenon remains a significant challenge to the government’s counter-terrorism efforts. Among other things, the Department has:
Curbing Radicalization in America's Prisons
The Department of Justice, FBI and Federal Bureau of Prisons (BOP) understand the importance of preventing inmates in U.S. federal prisons from being recruited into the terrorist fold. Since February 2003, the FBI and BOP have engaged in a number of efforts to detect, deter, and interdict efforts by extremist groups to radicalize or recruit in U.S. prisons. These ongoing efforts include: