Byline: Daveed Gartenstein-Ross & Kyle Dabruzzi
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 omerta (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...