Inventing Terrorists: The Lawfare Of Preemptive Prosecution

This study, sponsored by three national organizations, Project SALAM (Support And Legal Advocacy for Muslims), the Coalition for Civil Freedoms (CCF) and ICNA Council for Social Justice (CSJ), focuses on post-9/11 claims by the U.S. government that it keeps the county safe from terrorism by arresting hundreds of so-called “terrorists” who were about to strike the U.S. until the FBI foiled their plots. In fact, this study shows that there have been remarkably few actual terrorism threats to this country in the last decade. We found that over 90 percent of the cases posed no such threat. The vast majority of arrests in the war on terror have consisted of:

  • the FBI foiling its own entrapment plots, often after having targeted mentally ill defendants; or
  • the government arresting people on material support for terrorism charges that effectively criminalize innocent conduct, such as charitable giving and management, free speech, free association, peace-making, and social hospitality; or
  • inflation of minor or technical incidents into terrorism events, such as immigration application inaccuracies, old weapons charges, or inaccurate statements to government officials.

The study shows that the war on terror has been largely a charade designed to make the American public believe that a terrorist army is loose in the U.S., when the truth is that most of the people convicted of terrorism-related crimes posed no danger to the U.S. and were entrapped by a preventive strategy known as preemptive prosecution.

Statistically, the study asks how many of the individuals who appear on the Department of Justice (DOJ) 2001–2015 lists of “terrorism and terrorism-related convictions” (Appendices A [2001- March, 2010] and B [March, 2010-2015] respectively) represented real terrorism threats, and how many were cases of preemptive prosecutions. The study then categorizes the cases of the individuals on the DOJ list as one of three types of cases: preemptive prosecutions, cases that contained elements of preemptive prosecution, or cases that were not preemptive prosecutions/represented real terrorism threats.

The statistical analysis

Shows that, overall, 70% of convictions on the DOJ lists represent cases of preemptive prosecution that were based on suspicion of the defendant’s perceived ideology and not on his/her criminal activity. Another 23% of convictions on the DOJ list represent people who began on their own to engage in minor, non-terrorist criminal activity but whose cases were manipulated and inflated by the government to appear as though they were “terrorists”; these cases are referred to in the study as “elements of preemptive prosecution” or “elements.” In total, 93% of all the terrorism-related convictions on the DOJ list have been either preemptive prosecution cases or cases that involved elements of preemptive prosecution.

The study defines preemptive prosecution, gives background on the origin of the concept, discusses the tactical patterns that characterize its use by the government, and provides a methodology for determining the categorization of a case. The study then shows, for cases on the DOJ lists, the percentages for each categorization of a case, as well as percentages for the tactical patterns used in each categorization. The study concludes that the government has used preemptive prosecution to exaggerate the threat of Muslim extremism to the security of the country, and presents some hypotheses as to why the government has done this, without taking a position on which possibilities may be correct. The study also makes recommendations to change the present unfair terrorism laws.

In addition to the report, we also advise watching the video above where we interview two attorneys to speak about preemptive prosecution and why it is so problematic.