Terrorists Using 1960s Legal Precedent


ACRU Staff


June 12, 2008

Terrorists Using 1960s Legal Precedent to Escape Punishment

New Study Exposes the “Terrorist Get Out of Jail Free Card”

In a report released today by the American Civil Rights Union, best-selling author and terrorism expert Richard Miniter demonstrates how a 1969 Supreme Court ruling is being used to get terrorists off scot-free–an extremely pertinent issue, given today’s ruling by the Supreme Court that Guantanamo Bay detainees are allowed access to civilian courts.

The case, Brandenburg v. Ohio, effectively safeguards suspected terrorists from prosecution by categorizing their fatwas–or calls to terrorism–as protected free speech if the threat does not designate a specific date and time for the action.

Using Syracuse University’s Transactional Records Access Clearinghouse (TRAC), Miniter shows that the total number of prosecutions of terrorists has fallen dramatically since 2002, while the percentage of terror cases that federal prosecutors refused to prosecute has climbed from 34% in 2002 to 90% in 2006. This decline in prosecutions of terrorists coincides with a sharp increase in citations of the Brandenburg case.

Of the 40 times Brandenburg has been cited since 1969, nearly half of these citations happened between 2001 and the beginning of 2006 (the latest year data was available).

“Critics of the war on terror consistently contend that terrorism is a crime that should be combated in the courts, with the full panoply of civil rights for suspected terrorists,” Miniter said. ” Sadly, the Brandenburg precedent–set in a starkly different time–makes it almost impossible for the government to prevail against terrorists who are caught in planning stages in the federal courts.”

The statistics show a disturbing trend on terrorism prosecutions:

*In 2002, 355 cases were brought.

*Only 66 cases were brought in 2003.

While prosecutions climbed slightly to 93 in 2004 (a Presidential election year), they fell to 46 the following year. During the first eight months of 2006, TRAC found only 19 terrorist prosecutions–the lowest level since 1998.

“There are two possible explanations,” Miniter said. “Either terrorist activity–everything from recruiting and financing to plotting attacks–is actually declining. Or suspected terrorists have found a strong defense.”

“With the Supreme Court’s recent decision to allow Guantanamo detainees to challenge their detentions in federal court, the Brandenburg precedent has become a hole in America’s armor,” Miniter said. “If our system of justice is to play a vital role in the war on terror, the Supreme Court should narrow the scope of Brandenburg.”

For a copy of the report “Is Terror Winning in the Courts?” please visit www.theacru.org. To schedule an interview, please contact John Doyle at 703.447.1124 or at doyle@theprincipalnetwork.com.

The American Civil Rights Union (ACRU) is dedicated to protecting our fundamental rights and liberties across the board. The ACRU focuses, in particular, on those areas of our civil rights which are ignored, or even actively undermined, by other supposed civil liberties groups. These include property rights, freedom of religion, equality under the law, the right to keep and bear arms, individual liberty and federalism. The ACRU also supports freedom of speech and of the press, sound principles of criminal justice, and proper voting processes and procedures, among others.



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