We’ve been working on our database of domestic “terrorism” prosecutions since about early 2009, and have been working on the Report over the past year and a half. It’s been slow, since it’s a completely volunteer effort. But I think it’s good quality work, combining legal experience with these cases, Steve Downs’ ability to see the big picture (I get lost in the details), lots of data analyzed , a great database written by Lynne Jackson, and superb editing and advice on how to make the report more professional from Jeanne Finley.
Please check out the Report, there is a link to it at this site. Basically what we did was to look at all the cases which DOJ termed “terrorism cases” and analyze them to see how many were what we call “preemptive prosecution” cases. As defined in our Report, “preemptive prosecution is a law enforcement strategy, developed after 911, to prosecute individuals or organizations whose beliefs, ideologies or religious affiliations raise security concerns for the government.”
First we compiled a lot of data on the 399 cases listed by the DOJ (and many other cases not listed there because they occurred before or after the time frame DOJ used, or for some other reason). We downloaded information on the case from the court websites, which include case number, co-defendants, charges, convictions, sentences, lawyers involved, a chronology of the filings in the case, and other information. We also looked at newspaper, magazine and blog articles on the case, DOJ press releases, prison location information and websites set up by supporters.
In order to decide whether a case fell into the category of “preemptive prosecution,” or whether it had some elements of preemptive prosecution along with elements of a traditional crime, we looked largely at the charges used, in the context of all the other information on the case. As stated in the Report, “Preemptive prosecutions are generally characterized by the absence of a crime involving injury to people, damage to property, or disruption of public order. Rather, there is suspicion of what the defendant might do in the future based on the defendant’s religion or ideology.” And “Preemptive prosecutions are characterized most clearly by the disparity between how individuals of a certain religion or ideology are treated when compared with the general public. Actions that would be ignored or treated lightly when performed by a member of the general public are heavily prosecuted and sentenced when performed by a member of the targeted group.”
We called all sting operations preemptive prosecution. A sting is a case where the defendant would not have committed the particular (fake) crime were it not for the involvement of a government provocateur. There are a great number of groups and individuals who could be targeted in a sting operation, but the government has chosen to target mainly Muslim men.
Cases involving Muslim charities or charitable donations (generally involving charges of material support to terrorism) were considered preemptive prosecutions unless there is evidence that the defendants intended the money to support violence.
Prosecutions based on what would normally be protected speech under the First Amendment were considered preemptive prosecutions even if the defendants advocated non-specific violence.
Charges of making false statements to the FBI or immigration or other federal law enforcement authorities were considered preemptive prosecutions if the false statements were unconnected to any other violations and appeared to be simply devices to hold the defendant because of suspicions about his or her ideology. Interestingly, DOJ recently made two significant changes which are relevant here: 1) they are requiring that the target must know making a false statement is illegal before being charged; and 2) they are recording interrogations, which provides important context and limits the ability to charge people based on FBI lies.
Immigration charges were considered preemptive prosecutions when there was no evidence of any terrorist activity or of any crime beyond a technical violation, such as an omission on a form. Many of these cases, often prosecuted soon after 9/11, were based on initial suspicions that were proven false, or for which there was no evidence.
Based on the above criteria, among others, we discovered that 72.4 %of the 399 cases were preemptive prosecution, and 94.2% of those cases contained elements of preemptive prosecution, leaving only a small handful of defendants who could be termed actual (rather than perhaps potential) security threats. Considering how many times the government has touted their statistics (“we’ve convicted about 400 terrorists in US courts”) we think these statistics and our analysis is very significant. We realize that trying people in US federal courts may be better than throwing them into Guantanamo, but the reality is that the process isn’t really all that much fairer. Read our Report and see if you agree or disagree.
Posted By Kathy Manley
download the pdf: http://www.projectsalam.org/Inventing-Terrorists-study.pdf
read about the report and access the database: http://www.projectsalam.org/database.html
 We are well aware (see Dirty Wars here (link) for example) that this is really nothing new, but this Report is limited to 2001-2010 because that is the time period for the DOJ list. However our analysis was actually informed by this country’s long history of persecution against targeted groups, including but not limited to Native Americans, African-Americans (always and still, unfortunately), Chinese, Italians, Irish, Japanese, Catholics, Jews, anarchists, Communists, gays and lesbians, Latinos (and non-white immigrants generally), and now Muslims.