- The Washington Times - Monday, June 17, 2002

Sixty-one percent of the international and domestic terrorism cases referred by the FBI for trial in the six months after the September 11 attacks on America were rejected by prosecutors, and two senior members of the Senate Judiciary Committee want to know why.
Sens. Patrick J. Leahy and Charles E. Grassley have asked Attorney General John Ashcroft and FBI Director Robert S. Mueller III to explain whether the refusals reflected the quality of the FBI investigations and whether sufficient resources had been allocated to pursue the cases.
"Federal prosecutors declined both international and domestic terrorism referrals from the FBI more than half of the time in the six months after the attacks," they said in a letter Friday, asking both men whether the "rate of declination of FBI terrorism referrals is acceptable to you."
"The information raises troubling questions about whether the FBI and the Department of Justice are devoting sufficient resources to counterterrorism [and] how well the FBI conducts terrorism investigations," they said.
Mr. Leahy, Vermont Democrat, and Mr. Grassley, Iowa Republican, also noted that the two most common reasons cited by prosecutors for refusing to take international terrorism cases to trial were "a lack of evidence of criminal intent," listed in 28.3 percent of the referred cases, and "no federal offense evident," noted in 21.7 percent of the cases.
Regarding the domestic terrorism prosecutions that were rejected, the senators said the reason for the refusal to take the case given by prosecutors 19.8 percent of the time was "no federal offense evident," and that a "lack of evidence of criminal intent" was cited in 14.8 percent of the cases.
Mr. Leahy and Mr. Grassley based their inquiries on information they obtained from the Transactional Records Access Clearinghouse (TRAC), a research organization affiliated with Syracuse University. The information was based on Justice Department records provided to TRAC under the federal Freedom of Information Act.
In the letter, the two senior senators also questioned whether the FBI was continuing to commit manpower and resources to crimes that other federal, state and local law enforcement agencies were equipped to handle, despite public statements that battling terrorism would be the FBI's top priority.
The senators noted that FBI criminal referrals for prosecutions in crimes that overlap the jurisdiction of other agencies such as bank robberies and drug investigations remained almost unchanged after the September 11 attacks.
Mr. Leahy and Mr. Grassley said that from October 2001 through March 2002, the percent of FBI referrals for bank fraud, bank robbery and narcotics cases was 39 percent of the total number of referrals offered during that period, compared with 41 percent in fiscal 2001 and 40 percent in fiscal 2000.
"In the aftermath of the September 11, 2001, attacks, why did the FBI continue to devote the resources of its agents to bank crimes and narcotics at a level near that of before the attacks when the threat of a second attack, as you and others have publicly stated, was foremost on the minds of government officials?" they asked.
They asked Mr. Ashcroft and Mr. Mueller to identify how many bank robbery referrals involved the same suspect; how many included injuries or a death; whether a gun or other weapon was used; and whether the bank robbers crossed state lines in committing the crime.
In the narcotics cases referred by the FBI and rejected by prosecutors, the senators asked how many involved known drug cartels or organizations and whether the cases had resulted from joint task force investigations with other agencies, particularly the Drug Enforcement Administration.
"We acknowledge that one can interpret data in many ways, and there may be very reasonable explanations for some of this information. We write to you not in criticism but to open a dialogue to further accountability and transparency," they wrote, noting that, as Judiciary Committee members, they were responsible for conducting oversight of the Justice Department and the FBI.
They gave Mr. Ashcroft and Mr. Mueller until Aug. 30 to respond.
FBI officials say the referral of a case to a U.S. attorney is not a recommendation to prosecute. In anti-terrorism cases in particular, much of the effort to prevent attacks does not result in prosecutions.
FBI spokesman Bill Carter said the exhaustive investigative effort to unravel the September 11 plot may have contributed to the large number of international terrorism referrals that federal prosecutors chose not to pursue.
"Did we open cases that went down blind holes? Probably," Mr. Carter told the Associated Press in an interview, although he said that was not based on direct knowledge.
Mr. Carter also defended the number of referrals for nonterrorism offenses, saying many were the fruit of investigations that began long before September 11.
"Cases don't just happen overnight," he said. "Many are long term and very complex investigations. The cases referred by us to U.S. attorneys are usually not those opened the day before."
Last month, Mr. Mueller announced a major reorganization of the FBI that he said would help prevent future terrorist attacks. Under the plan, the FBI will reassign hundreds of agents to counterterrorism and will devote nearly a quarter of its agents to preventing terrorist attacks.
The reorganization, Mr. Mueller said, was intended to change the FBI's structure from a "reactive to a proactive orientation" and will include changes in investigative techniques, culture, attitude, procedures, methodology, hiring and technology.
The FBI has identified the prevention of future terrorist attacks as its top priority, and it will transfer 480 agents from assignments in drugs, white-collar crime and violent-crime sections to counterterrorism duties.
Nearly 3,000 of the FBI's 11,500 agents will be assigned to counterterrorism units, which had been manned by fewer than 1,000 agents before September 11.

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