Since September 11, increased information-sharing has been the first element in the Justice Department's two-pronged strategy to prevent terrorism. The second element involves prosecuting suspicious individuals or groups quickly for low-level crimes rather than waiting years to build a more elaborate case. In many ways, the prevention strategy offers a new twist on an old prosecutorial tactic. Call it the Al Capone approach: Unable to prove that Capone was a mobster, the government prosecuted him for tax evasion instead. Now, the government is using similar tactics to take suspected terrorists off the streets before they can launch an attack.What's wrong with this strategy? Well, according to Rosen, "since September 11, the Bush administration has also used its new surveillance authority to prosecute or deport hundreds of people who have nothing to do with terrorism." His evidence? They're being prosecuted for non-terrorism-related crimes.
A comprehensive tracking study by Syracuse University in December 2003 found that the Justice Department had overstated the number of terrorism-related convictions by creating a new category after September 11 called "Anti-Terrorism," which includes immigration offenses, identity theft, and drug cases "intended to prevent or disrupt potential or actual terrorist threats where the offense conduct is not obviously a federal crime of terrorism." According to the Syracuse study, only half of the more than 6,400 "terrorist and anti-terrorist" matters referred to prosecutors by investigative agencies in the two years after September 11 involved actual acts of international or domestic terrorism....That's right--we know that the strategy of convicting terrorists of lesser offenses is being abused to round up non-terrorists, because many of those convicted under the strategy are being convicted of lesser crimes than terrorism. (Perhaps the rest were charged with tax evasion?)
What's more, the 9/11 Commission noted that, of the 768 aliens arrested as "special interest detainees" and lawfully held on immigration charges, 531 were deported, 162 were released on bond, and only eight--including [9/11 suspect Zacarias] Moussaoui--were remanded to the U.S. Marshall Service as terrorism suspects.....critics of the prevention strategy, such as David Cole of the Georgetown University Law Center, note that, of the nearly 5,000 foreign nationals detained since September 11 on immigration charges, only three were actually charged with any terrorism-related crime.
Rosen has an additional objection:
[S]tate and local officials seem less enthusiastic about the prevention paradigm than their counterparts in Washington. Four states and nearly 330 local governments have passed resolutions objecting to the Bush administration's use of the Patriot Act and its efforts to enlist local officials in the war on terrorism. For example, the district attorney in Portland, Oregon, insisted that state law banned his city's police from apprehending people who had violated only immigration laws or from collecting information on the political beliefs of citizens, except as part of a criminal investigation.Note that the Portland DA's rationale had nothing to do with whether the Patriot Act was being used to target real terrorists or mere petty criminals. That is, his complaint was against the FBI's uses of the Patriot Act tout court, even against terrorists or their collaborators. No doubt many--probably the vast majority--of the local resolutions passed against the Patriot Act and the War on Terror were of a similarly undiscriminating variety, outright condemning the Patriot Act, as applied by the FBI, as an unprecedented erosion of civil liberties. Now, where on earth might all those political bodies have gotten such an idea?