AL CAPONE HAD BECOME a celebrity criminal by 1931. Everybody knew what he was up to: his litany of offenses included murder, bribery, and running illegal breweries. But the government would have had trouble proving Capone's guilt beyond a reasonable doubt for his most notorious activities. Instead, it charged him with tax evasion, prompting the incredulous mobster to claim, "The government can't collect legal taxes from illegal money." Capone proved to be wrong, and he entered an Atlanta prison on May 5, 1932. His conviction for tax evasion is the most famous example of a model that law enforcement adopted to combat the unique problem that the mob posed--a model that is now being used address the threat of terrorism.
The government knew that convicting mobsters for their most serious offenses was difficult for a number of reasons, including omertá (a code of silence). When Capone was charged with tax evasion, it signaled that law enforcement's top priority was neutralizing mob leaders and their activities rather than winning the heaviest sentence. Fortunately for prosecutors, the investigation of mobsters would often uncover a great deal of relatively minor crimes.
Similarly, today prosecutors often find it difficult to prove the most serious terrorism offenses, such as material support, beyond a reasonable doubt. But the investigation of suspected terrorists often reveals other illegal activities that prosecutors can go after. They have done so aggressively since 9/11, following a model that then-Attorney General John Ashcroft outlined shortly after the attacks:
Let the terrorists among
us be warned: If you overstay your visa--even by one day--we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage. We will use all our weapons within the law and under the Constitution to protect life and enhance security for America.
As the U.S. political landscape changes, the Al Capone model of anti-terror policing will likely be challenged. But the question of whether this is a proper model is not settled by the Bush administration's popularity or competence (or lack thereof).
ONE IMPORTANT ASPECT of the Al Capone model of anti-terror policing is the fact that terrorists have been heavily involved in criminal activity in the U.S., and have gained a great amount from it.
Often the first kind of crime that would-be terrorists engage in is immigration violations. Janice Kephart, former counsel to the 9/11 Commission, recently authored a report entitled Immigration and Terrorism that examines the histories of 94 foreign-born terrorists who operated in the U.S. between the early 1990s and 2004. It concludes that "about two-thirds (59) committed immigration fraud prior to or in conjunction with taking part in terrorist activity." Terrorists have engaged in document fraud such as forgery, false statements, and the misuse of visas.
Terrorists have also been involved in sham marriages, which are attractive because federal law allows an alien who is the spouse of a U.S. citizen to gain lawful permanent residency. However, federal law prohibits marriage fraud, which is defined as a marriage that is entered solely "for the purpose of evading any provision of the immigration laws." A number of terrorists and terror supporters affiliated with al Qaeda, Hezbollah, and the Palestinian Islamic Jihad used sham marriages. For example, three members of a Hezbollah fundraising cell in Charlotte, North Carolina were involved in sham marriages. Two of the women who married conspirators were actually a lesbian couple who lived together rather than with their "husbands."
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