As the domestic spying apparatus has grown larger and more intrusive in the years following 9/11, the number of prosecutions of terrorism cases had sharply declined by 2010. 

Data pulled together by Syracuse University’s Transactional Records Access Clearinghouse documents that in the two years following the September 11 attacks, the Justice Department referred 6,400 people for investigation on terrorism charges.  But two-thirds of them were never charged with anything. Of the 879 who were charged and convicted, more than half received no jail time and 250 got less than a year in prison. Only a few got the sort of lengthy prison sentences associated with terrorism convictions. Among those cases labeled as “terrorist” were 65 involving foreign students who had hired others to take their English proficiency exams.

From 2004 to 2008, the FBI and federal investigators recommended the prosecution of 8,896 individuals who were said to be connected to terrorism. However, assistant US attorneys refused to bring any charges in nearly 6,000 of these cases. In 2008 alone, charges were not brought in three quarters of the cases, suggesting that in the vast majority of cases, there was simply insufficient evidence to bring them to court, or a lack of evidence of criminal intent. 

The total number of prosecutions in 2008 on terrorism charges was below what it had been before 9/11. Prosecutions declined through 2010, while the national attention given to terrorism continued to be ramped up. 

The problems associated with terrorism arrests and prosecutions were the focus of an audit from the Justice Department’s Inspector General in 2007. It showed that federal prosecutions counted immigration violations, marriage fraud and drug trafficking as “antiterror cases” even though there was no evidence to link them to terrorist activity. According to the Associated Press (February 20, 2007), “Nearly all of the terrorism-related statistics on investigations, referrals and cases…were either diminished or inflated. Only two of 26 sets of department data reported between 2001 and 2005 were accurate, the audit found.” The most severely flawed data came from the Executive Office of US Attorneys, which compiled statistics from federal prosecutors’ districts nationwide.