In Box

Trial and Error

Who should fight terrorism: soldiers, or lawyers? Since 9/11, the courtroom has become a key battlefield in the war on terror. And according to a new report (pdf) on how American and European authorities are prosecuting the war, it’s a fight that the United States isn’t winning. In the past five years, the U.S. Department ...

Who should fight terrorism: soldiers, or lawyers? Since 9/11, the courtroom has become a key battlefield in the war on terror. And according to a new report (pdf) on how American and European authorities are prosecuting the war, it’s a fight that the United States isn’t winning.

In the past five years, the U.S. Department of Justice has filed charges in more than 500 terror cases. But just four people have been convicted of terrorism, according to New York University’s Center on Law and Security, which published the report. The vast majority of suspects — more than 350 — were prosecuted for far lesser crimes, such as immigration violations and document fraud. In most instances, the terror links are dropped before the case even reaches the courtroom.

By contrast, European authorities are racking up impressive conviction rates, often thanks to strict anti-terrorism laws that were on the books long before 2001. The conviction rate in French terror cases during the past five years stands at 86 percent. In the same period, three quarters of terrorism indictments in Italy and more than half of those in Germany have ended in guilty verdicts.

The difficulty U.S. prosecutors face in locking up terror suspects may boil down to approach. "The [European and American] strategies are simply different," says Karen Greenberg, executive director of the NYU center. U.S. law enforcement officials apprehend suspects early, hoping to disrupt plots, whereas European authorities gather as much intelligence as possible before making an arrest. That patience can mean a stronger case in court.

But others insist that the statistics should be taken with a grain of salt. "The abstract numbers tell us relatively little without knowing the details," says Robert Chesney, a law professor at Wake Forest University. "There are strong incentives to designate a case as terrorism-related at the investigative stage, but it may be prosecuted on other grounds for any number of reasons." It seems that the jury is still out on whether U.S. courts can fight the good fight.

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