New studies show that while federal prosecutors are winning increasing numbers of convictions in terrorism cases, they also are declining to bring charges in the overwhelming majority of matters brought to them by the FBI and other law enforcement agencies.
The reports, one released Monday by the nonprofit Transactional Records Access Clearinghouse and the other late last week by the Center on Law and Security of New York University School of Law, show conviction rates of nearly 80 percent in federal cases in which terrorism is charged.
But a 67 percent rate of declined prosecutions found in an analysis of Department of Justice records done by TRAC, an affiliate of Syracuse University, has prompted different opinions about the trend, with Rep. Peter King (R-Seaford) going as far as to recommend in an interview the need for special terror courts.
"That seems like a high number," said King when told of the declined cases. "But it may very well say we need a different type of court system for this type of case."
King said the idea of the special court is being talked about on Capitol Hill and he might propose the idea at some point. He also said he believed a unit such as Britain's MI-5 security service could be set up to coordinate counterterrorism investigations.
But Karen Greenberg, executive director of the Center on Law and Security, said the high rate of declined prosecutions was actually a good thing for the public.
"It is not a bad thing. To me, that is the system working," Greenberg said.
She also said the high conviction rate in terrorism cases shows better quality investigations and more focused federal efforts.
Both reports were released at a time of heightened concern about terror plots in New York City. Najibullah Zazi, 24, a former food pushcart vendor from Flushing, is scheduled Tuesday to be arraigned in Brooklyn federal court amid high security on charges he planned to build and detonate bombs in the city around Sept. 11.
The Zazi case is said by law enforcement officials to be the most serious plot since 2001. Last week, federal prosecutors in Denver, where Zazi was living, said evidence suggested he was feverishly trying to build an explosive device, a claim his defense attorneys have denied.
TRAC's analysis of 8,896 referrals of terrorism cases by the FBI and other agencies, such as the Department of Homeland Security, between fiscal 2004 and 2008 showed that 5,995 of them, or 67 percent, were closed without prosecution.
Of those that went to indictment, 2,302, or 79 percent, led to convictions.
More than 43 percent of the referrals were discarded because of weak or insufficient admissible evidence or lack of criminal intent, according to TRAC.
The NYU study examined a smaller number of terrorism prosecutions from 2001 until this year and found a conviction rate of 78 percent for terrorism or national security violations.
That rate jumped to 88 percent when taking into account cases in which defendants beat a terror charge but were convicted of another offense. The NYU report didn't examine declined prosecutions.
The TRAC study also noted that the federal court system and Department of Justice define terrorism cases differently, indicating that the federal government is uncertain about who should be targeted for investigation. The result has been an "unfocused, wandering and erratic federal effort," TRAC said.
Department of Justice officials Friday stood by the agency terrorism prosecutions, saying efforts to dismantle terror plots has vastly improved since Sept. 11, 2001.
The agency said it was unable to verify data and conclusions reached by TRAC, saying the nonprofit group sometimes put out misleading information.
David Burnham, a TRAC director, called the DOJ response "unfortunate" because it didn't point to any flaws in the data and failed to address any problems.