Although legal experts say they would not necessarily expect the number of prosecutions to rise along with the stepped-up surveillance, there are few other good ways to measure how well the government is progressing in keeping the country safe.
"How does one measure the success? The short answer is we aren't in a great position to know," said Daniel Richman, a former federal prosecutor. With prosecutions declining, he said, the public is left with imperfect and possibly misleading ways to gauge progress in the Bush administration's war on terrorism -- such as the number of secret warrants the government issues or the number of agents it assigns to terrorism cases.
"These are the only tracks in the snow left by terrorism investigations, if there are no more counter-terrorism prosecutions," Richman said. "This is why, more than ever, there is a pressing need for congressional oversight, for accountability at the top of the [Justice] department, and for public confidence in the department."
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Changing numbers
A recent study showed that the number of terrorism and national security cases initiated by the Justice Department in 2007 was more than 50% below 2002 levels. The nonprofit Transactional Records Access Clearinghouse at Syracuse University, which obtained the data under the Freedom of Information Act, found that the number of cases brought declined 19% in the last year alone, dropping to 505 in 2007 from 624 in 2006.
By contrast, the Justice Department reported last month that the nation's spy court had granted 2,370 warrant requests by the department to search or eavesdrop on suspected terrorists and spies in the U.S. last year -- 9% more than in 2006. The number of such warrants approved by the Foreign Intelligence Surveillance Court has more than doubled since the 2001 terrorist attacks.
The department also reported a sharp rise in the use of national security letters by the FBI -- from 9,254 in 2005 to 12,583 in 2006, the latest data available. The letters seek customer information from banks, Internet providers and phone companies. They have caused a stir because consumers do not have a right to know that their information is being disclosed and the letters are issued without court oversight.
The inspector general of the Justice Department has found numerous cases in which FBI agents failed to comply with rules and guidelines in issuing the letters, often gaining access to information they were not entitled to. The FBI has responded by taking a number of measures to tighten its internal procedures.
