Federal confusion over defining terrorists threatens civil liberties

September 29, 11:13 AMCivil Liberties ExaminerJ.D. Tuccille

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We may all know that Najibullah Zazi is a suspected
al-Qaida terrorist, but the federal government doesn't
have a firm definition of what "terrorist" means.
(AP Photo/Elizabeth Williams)

Who is a terrorist? Just as important: How do we differentiate terrorists from freedom-fighters, mere criminals, outspoken political dissidents and soldiers, and keep the "war against terror" from poisoning everyday life? A recent report from a watchdog group suggests that federal agencies can't agree on just what defines a terrorist -- and that their confusion endangers civil liberties.

In Who is a Terrorist?, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University reports that, looking back over the last five-and-a-half years, "a comparison of all of the terrorism cases listed by three separate and independent agencies — the courts, the prosecutors and the [National Security Division (NSD) — an office in the Justice Department] — found that there were only 4% of the defendants in common."

The problem is that these different agencies use the words "terrorist" and "terrorism" to mean different things, so that overlap between their various lists can sometimes seem purely accidental. As a result, one-third of defendants who were charged in federal court for specific terrorism offenses were not categorized as having any connection to terrorism by prosecutors. Just as troubling, more than a quarter of people listed as terrorism defendants by the NSD were not ultimately classified as having anything to do with terrorism by the prosecutors in their cases.

Ultimately, federal prosecutors refuse to pursue two-thirds of the terrorism cases referred to them by investigative agencies. The minimal overlap between lists of terrorists, refusal of prosecutors to label defendants as terrorists and rejection by prosecutors of supposed terrorism cases suggests that large numbers of people are being improperly labeled as terrorists or potential terrorists at a time when federal officials can't even agree what it means to be a terrorist or to commit terrorism. People so labeled are subject to special scrutiny, restrictions on travel, and other impositions that are troubling in themselves when applied to people convicted of no crime, and are even worse when the arbitrary nature of such labeling is revealed.

As TRAC points out:

[W]hile the treatment of the comparatively small number of terrorism detainees held in Guantanamo has for many months been the central focus of an intense political debate between President Obama, former Vice President Dick Cheney, members of Congress, civil liberties organizations and others, the subject of the government's poorly focused and often inept handling of the far larger number of individuals drawn into the traditional criminal process or improperly listed on the government's watch list has received comparatively little attention.

In fact, the prosecution of "terrorism" cases with no connections to actual terrorists may be no accident. As TRAC reveals, U.S. attorneys were issued a directive just last year saying that federal terrorism cases "may have, but are not required to have, identifiable links to terrorist activity." NSD lists of suspected terrorists include people charged with fraud, drug offenses and violations of immigration statutes. These names make up 43% of the total.

Of course, anti-terrorism resources expended to track and prosecute non-terrorists are resources that aren't available for use against the real thing. The government's refusal to settle on a firm definition of what constitutes a terrorist may put us in danger from both the authorities and from the real terrorists.

email J.D.: civilliberties (at) tuccille.com