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4 Enforcement ~ .. Torganized crime fuels great concern at the political level. Federal Bureau of Investigation (FBI) Director Louis Freeh and former Central Intelligence Agency (CIA) Director R. lames Woolsey both have asserted that transnational organized crime threatens the national security interests of the United States and other nations, and places "the very fabric of democratic society" at risk everywhere (Raine and Cilluffo, 19941. From this perspective, law enforcement and national security become increas- ingly entangled. Transnational groups are seen as a new breed of criminal organization whose high-tech methodologies outstrip anything that law enforcement agencies have to stop them (Raine and Cilluffo, 19941. The spectre of access by terrorist groups (through transnational crime networks) to weapons of mass destruction further intensifies these fears. And the problems of definition, complexity, and measurement we have discussed lead many law enforcement and policy officials to see transnational crime as an intractable issue. he potential for grave harm to national security from transnational Workshop participants agreed, however, that putting the problem of transnational organized crime in perspective means that most of these ac- tivities are something less than a major threat to national security and frag- ile democracies around the globe. The alarmist view tends to obscure the important reality that there are separable elements in many of these of- fenses, that some are more serious and complex than others, and that many are detectable, although their investigation may be difficult. 28
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ENFORCEMENT 29 A principal barrier to investigating these crimes is that governments have sovereign or exclusive power within their own borders and virtually none elsewhere (Nadelmann, 19931. Countries affected by these crimes differ in their political, social, economic, and legal systems and cultures. These differences generate friction for the police. Their law enforcement powers are severely restricted when a criminal investigation crosses the bor- der, and their investigative efforts are complicated by a lack of understand- ing of political and legal structures and language. Frequently there is confusion about who has jurisdiction over indi- vidual cases. This surfaces constantly in the illegal drug trade. Cases of drug selling, easily detectable by local police, almost certainly are connected to individual cooffenders or criminal networks in other U.S. jurisdictions and other countries. In some instances, local police investigate local dealers or suppliers, only to find that one or more federal agencies, including the military, or police from other countries, or INTERPOL are involved in the investigation at some level. When no agreements governing cooperation are in place, these situations create many opportunities for domestic and international organizational conflict among law enforcement agencies, ju- risdictions, and countries (Schlegel, 19981. One workshop participant re- lated an incident in which the FBI had an undercover operation in Miami directed against what turned out to be an undercover operation by the Drug Enforcement Agency. He was able to get information to both organi- zations that "it would be all badges." These situations are reported to occur with some regularity. NEED FOR COOPERATIVE RELATIONSHIPS The development of transnational police cooperation is an increas- ingly common response strategy to transnational organized crime. Coop- eration is framed through high-level bilateral and multilateral assistance treaties with other nations. States may agree to exchange subject-matter experts and investigative expertise and to provide training for police. Trea- ties set out rules for the sharing of intelligence and other evidence and for determining ~urlsulctlon in specific cases. They establish standards for in- vestigative methods, the extradition of offenders, and the imposition of sanctions. Frequently, they involve the stationing of law enforcement per- sonnel in embassies abroad or even the opening of a law enforcement head- quarters or training facility in a foreign capital. In response to the spread of transnational organized crime, the 1990s
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30 TRANSNATIONAL ORGANIZED CRIME saw an unprecedented presence of U.S. law enforcement personnel in other countries. For example, over 100 U.S. law enforcement agents were sta- tioned in U.S. embassies and consulates in Europe, and dozens of others were traveling there on temporary business (Nadelmann, 19931. This has resulted in a strong American influence on law enforcement practices in much of Western Europe, especially in pursuit of U.S. global drug control objectives. U.S. Department of Justice and U.S. military officials also have been active in drug interdiction efforts in South America and Mexico since the Bush administration in the late 1980s. These partnerships can work relatively well when the cooperating countries have well established law enforcement systems. In the context of police system modernization in emerging democracies, however, many problems of implementation can arise. These can be traced to the differences between Western expectations and the aspirations of emerging democracies, for example, those in Russia and Eastern Europe (Gregory, 1995), as well as other poor countries char- acterized by weak political systems and markets and official corruption. ITALIAN-AMERICAN WORKING GROUP The Italian-American Working Group formed in 1984 to target orga- nized crime provides an example of a positive relationship between two countries with mature legal and investigative systems. During the 1970s the center of heroin trafficking moved from France and its island of Corsica to Sicily, where it operated under the then virtually impenetrable Sicilian La Cosa Nostra. The power structure of the Sicilian Mafia was being funda- mentally altered at that time to support the huge international trade in illegal narcotics. Numerous previous narcotics investigations had involved both Italy and the United States, but prosecutions were usually brought in only one country, and the vast differences in the two countries' legal sys- tems led to competition rather than cooperation (Martin, 19981.1 In the 1980s organized crime groups in Italy became stronger through a series of activities, including the murder of high officials (including the chief prosecutor of Palermo); violent infighting among Mafia factions, re- sulting in many deaths; and the development of political coalitions de- signed to keep the Communists out of power. Against this backdrop, the Most of the information in this section is taken from the case study by Martin (1998).
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ENFORCEMENT 31 United States and Italy decided to develop a cooperative relationship that would be able to challenge organized crime and its control of drug traffick- ing (Martin, 19981. New treaties were developed to speed up the extradi- tion process; to make possible the rapid exchange of investigative informa- tion and the execution of searches and seizures; and the direct, confidential exchange of virtually every type of law enforcement information. Overcoming the barriers to this level of cooperation required approval at the highest levels in both governments. The working group was formed to take advantage of the cooperative relationships that had been formed at the working level. Its meetings, held semiannually from 1984 to 1990, frequently included the top law enforcement official of both countries, the U.S. attorney general, and the Italian minister of interior. The directors of major law enforcement agencies from both countries also attended. The group provided a framework of support for the law enforcement agencies and paved the way for improved prosecutions, for example, by moving vulnerable witnesses to the United States where, under U.S. law, they could be protected and offered immunity from prosecution. The functioning of the Italian-American Working Group was illus- trated by a case dubbed "the pizza connection," a massive drug trafficking operation from Sicily to New York, uncovered by investigators and pros- ecutors. In Richard Martin's words, "What started as a limited exchange of information about particular individuals became an open flow of commu- nication that functioned almost as if there were no frontiers or legal barriers between the countries" (Martin 1998:81. In another example, the Buscetta case, which involved the first Sicilian Mafia member ever to testify in pub- lic, the United States guaranteed his protection, when Italy, under its own laws, was unable to do so. Martin observed that the most important lesson learned by the working group was the need for agents at the managerial level to spend time together, to learn from each other, and to overcome · · 1 · r · 1 suspicions about Information sharing. By the 1990s, the working group meetings became less frequent, but the U.S. law enforcement presence in Italy was by then well established. Some 30 federal law enforcement representatives were stationed in the U.S. embassy in Rome. These included agents from the Drug Enforcement Administration, the Federal Bureau of Investigation, the Secret Service, the Customs Service, Internal Revenue Service, the Immigration and Natural- ization Service, multiple military investigative agencies, and a former fed- eral prosecutor representing the attorney general (Nadelmann, 19931. The Italian-American Working Group has been revived recently to address new
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32 TRANSNATIONAL ORGANIZED CRIME problems common to each country, particularly Russian organized crime and new Mafia support of emerging crime groups (Martin, 19981. RUSSIA Cross-national cooperation becomes a greater challenge when a state lacks a strong criminal justice system based on the rule of law. In Russia, for example, the weakness of the state after the fall of communism has provided opportunities for organized crime and corruption. The unprec- edented process of privatizing previously nationalized property, businesses, and institutions created an advantage for Russian criminals, who had amassed certain resources and capabilities originating from black market operations during the days of the Communist regime. Much of the private wealth and property in Russia is now thought to be in the hands of these organized criminal groups. Although much has been made of the new Russian state's weakness in contract enforcement and the growing role of organized criminal groups in taking on that function, comparably important is the lack of a statutory base to prevent criminal activities from taking place. In Russia, there are no criminal penalties for phony businesses, fictitious bankruptcies, or other socially dangerous practices in a market economy. No legislation against organized crime has been passed. Law enforcement cannot target criminal organizations or use measures such as witness protection and informants to enhance their capacity for a more effective response to organized crime. There is little financial or social support for law enforcement itself (Will- iams, 19961. Difficulties in the cooperative relationship between Russia and the United States were manifested by an attempt at joint efforts to prevent smuggling of nuclear materials under Russian control. This issue came to U.S. attention as a result of high-profile cases in Germany, where docu- mented cases were reported to be on the rise (Gregory, 19951. In addition to its law enforcement problems, other Russian internal factors contributed to a dangerously weak intergovernmental response. A 1994 report from the Russian Federation Atomic Energy Regulatory Authority found that no state system of control and accounting of nuclear material existed in Rus- sia. Moreover, during a period when Russian political and administrative systems were undergoing major transformation, responsibility for the pro- tection of nuclear materials and installations was divided among four sepa- rate government bureaucracies, and coordination was at a minimum. These
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ENFORCEMENT . 33 structural weaknesses were made worse by cultural and political issues a perceived need to maintain national pride, the sensitivities of the military, and a general mistrust of Western motives. Subsequently, on the U.S. side, plans to help the Russian Federation improve its nuclear security stalled. As with the Russian Federation, the three major departments of government responsible for fostering U.S.-Rus- sian collaboration "pursued separate and sometimes poorly coordinated ef- forts to initiate cooperation with the Russian bureaucracies involved" (Gre- gory, 1995:1271. Thus, in contrast to the situation in Italy, there was no central U.S. mechanism to share intelligence or investigative expertise on these crimes. A plan to open an FBI office in Moscow degraded into a limited agreement that two FBI agents could work from the U.S. embassy there (Gregory, 19951. The construction in Russia of a large nuclear arse- nal and the existence of powerful organized crime groups make enforce- ment efforts there uniquely important to the United States. Finding means for more effectively transferring U.S. enforcement expertise to help the Russian state reduce the power of organized crime is a matter of some urgency. BARRIERS TO COOPERATION An underdeveloped issue is whether an organization like the Italian- American Working Group is unique to the circumstances that gave rise to it and the relationships that grew out of those circumstances, or whether it can serve as a model for other successful partnerships. Workshop partici- pants noted that the political will must exist among senior officials in a country to target transnational organized crime and to develop the coop- erative relationships required for successful investigations and prosecutions. The success of the Italian-American Working Group partly depended on the sophisticated law enforcement information systems, legal systems, and education systems of the two countries. Many poor countries and emerg- ing democracies lack this basic infrastructure. Other potential barriers are the presence of endemic corruption; the level of nationalism; whether trea- ties governing law enforcement processes can be negotiated; and whether domestic policy objectives conflict with the development of common law enforcement goals (Martin, 19981. Workshop participants discussed American-style law enforcement as a barrier to cooperation, noting that some countries object to American methods of undercover work that has the potential for entrapment (e.g.,
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34 TRANSNATIONAL ORGANIZED CRIME the use of informants, buy-and-bust operations). Others noted that the United States increasingly is asked to provide investigative training and technical assistance in both Western and Eastern European countries in response to rising transnational and domestic crime rates there. Despite concerns about entrapment and invasion of privacy, many of these meth- ods have been adopted in Europe because they produce results. Using these methods makes cases, effects seizures, puts people in jail, and results in at least a perceived reduction in harm. Concern also was expressed about the friction and organizational rivalries consequent to the pervasive U.S. law enforcement presence overseas a presence that supports the extensive tar- geting of organized crime, intelligence collection efforts, new police train- ing efforts, and prosecutions led by the U.S. Department of Justice. One participant lamented the underrepresentation of Customs officials at the workshop. As a major point of potential contact between transnational crimes and official law enforcement, investigations often begin with Cus- toms. Participants noted that organizational rivalry and friction frequently arise between police investigators and Customs officials at international borders, citing examples on the German-French border and the U.S.-Mexi- can and U.S.-Canadian borders. DOMINANCE OF FEDERAL AGENCIES In the United States, the responsibility for responding to transnational crime has increasingly fallen to the federal government and, as noted above, it involves diplomats and intelligence agents as well as law enforcement. There are several reasons for this. Foremost, the cultural, political, legal, and language differences among different nations can be handled only at the federal level. State and local governments lack the authority to enter into treaties and the requisite knowledge of international law to deal with these issues on their own. They must relinquish jurisdiction to the federal government in matters of national security. And the resources, expertise, and personnel required to investigate and prosecute organizationally and technologically complex cases reside with only a few exceptions at the federal rather than the state and local levels. Federal intelligence agencies also are heavily involved in investigating extraterritorial violations of U.S. laws particularly export control viola- tions and weapons smuggling that intermingle criminal justice and na- tional security interests. However, a state's pursuit of a particular interna- tional law enforcement agenda is often constrained by the fact that criminal
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ENFORCEMENT 35 justice objectives are rarely predominant on its foreign policy agencla. Even among closely allied states, conflicting political interests and viewpoints, often involving powerful domestic constituencies, may impede coopera- tion in law enforcement matters (Naclelmann, 19931. Congressional com- mittees have routinely complained about the lack of attention to drug con- trol issues by U.S. ambassadors in major clrug-proclucing or transshipment countries, such as Pakistan, Turkey, and even, until recently, Mexico. The Mexican outrage about a major money-launclering investigation by U.S. agencies of Mexican banks, in which the Mexican authorities were not even informecl, has left a lingering bitterness at the highest levels of the Mexican government. PROBLEMS FOR LOCAL LAW ENFORCEMENT Participants noted that attempting to clear with transnational crime at the local level highlights the weaknesses of traditional police work. Local law enforcement generally is organized to respond to complaints of incli- viclual citizens or small groups in the community that have been harmed by crime clirectly. These are usually straightforward criminal acts, well cle- scribecl in the criminal codes of most states and municipalities. They in- volve single offenclers, small offender groups, or local youth gangs. They are relatively simple to investigate and do not require the level of profes- sional education or highly specialized investigative training needed for so- phisticatecl offenses computer crime or securities fraucl, for example. Suc- cessful prosecution depends on the presence of the elements of a crime that the criminal harm can be demonstrated and the criminal in- tent of the offender established beyond a reasonable cloubt. Professional expertise, if required at all, is usually introduced in the prosecution phase through the testimony of expert witnesses, rather than in the investigation phase. Some transnational crimes appear to fit this model of street crime- street sales of clrugs, some smuggling cases, some homicicles. Frequently, local police are unaware of transnational factors associated with these of- fenses or treat them as unimportant. They see a street vendor selling stolen designer clothing or designer knockoffs, but do not connect that act with transnational smuggling or forced labor. Their interest and training lie in protecting the legitimate manufacturer or owner of the stolen goocls, not in tracking clown smugglers, or tracing evidence or laundered money back to · 1 · r organlzec ~ crime Dosses in foreign countries.
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36 TRANSNATIONAL ORGANIZED CRIME The transnational nature of these offenses adds organizational, techno- logical, and spatial complexity to the investigative task. These crimes often involve systematic and complicated forms of economic criminality that re- quire arcane knowledge. Smugglers hide their illegal profits by engaging in a legal activity, such as wiring money to offshore accounts or investing in legitimate businesses. Many frauds exploit opportunities created by legiti- mate economic behavior by mimicking acceptable legal behavior, such as the filing of health insurance claims. Harm from these crimes is often dif- fuse and victims hard to identify. Using legal means to accomplish criminal goals can obscure the element of criminal intent, which is necessary for the prosecution ot a case. Given these difficulties, workshop participants debated whether a state or local role was even appropriate for these kinds of crimes. Most partici- pants agreed that transnational crimes of serious interest involve sophisti- cated white-collar and organized offenses of significant scope, and that, in all probability, these crimes are on the rise. Several participants noted that the local law enforcement interface with these crimes occurs on the de- mand side, where the market has its most visible manifestation, and that it is important to think of ways to change traditional policing to respond to these opportunities for detection and control. Others, however, felt that local law enforcement agencies are, for the most part, too small and too focused on basic community safety to ever have the capacity to respond effectively to these crimes. In addition, the involvement of state and local authorities could result in unacceptable levels of diffusion of sensitive in- formation about cases. This could create both corruption and security problems at the local level, with the potential to affect federal and interna · ~ · · · en tlona1 investigative efforts. Part of the problem for all levels of law enforcement, in responding to these offenses, lies in whether illegal markets can be significantly dimin- ished and, if so, how. Some markets are eliminated, or at least significantly decreased, without effective law enforcement. Rather the declines stem from social and economic changes: altered public attitudes, scientific ad- vances, or shifts in profitability. For example, there have been major changes in the prevalence of mari- juana use in the U.S. population over the past 25 years, which seem unre- lated to law enforcement. The long decline in marijuana use during the 1 980s did not represent the consequences of tougher enforcement; indeed, marijuana arrest rates substantially declined. The sharp upturn in adoles- cent use rates from 1993 to 1997 occurred at the same time that marijuana
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ENFORCEMENT 37 possession arrest rates also rose dramatically. Fashions, not susceptible to government influence, seem to be as important as any other set of factors. This difficulty in controlling illegal markets can affect policy. In an- other example, recent changes in the attitudes of African governments to- ward protecting elephants from poachers were driven not by law enforce- ment, but by the increasing economic value of nonconsumptive uses of elephants, especially with regard to tourism (Nadelmann, 19901. These economic forces, plus public, moral condemnation of elephant killing, led to a global ban, backed by the U.S. government and conservationist groups, on the sale and purchase of new ivory and the subsequent creation of illegal ivory markets. Some conservationists, as well as park managers and gov- ernments in southern Africa where elephant populations have stabilized or even grown, oppose the ban. They have insisted that southern Africans should not have to forgo ivory revenues that are channeled back to the national parks because other Africans have mismanaged their ivory re- sources. Efforts have been under way for several years to create a substitute ivory composed of ceramics, but many consumers, especially the Japanese, who buy more than 40 percent of Africa's ivory, may continue to insist on the real thing (Nadelmann, 19901. Although the influence of social and economic forces in diminishing illegal markets may be readily apparent, the impact of law enforcement activities is not. Almost no research information exists on the results of law enforcement efforts to disrupt and decrease these illegal markets. Law en- forcement takes credit for recent declines in cocaine use in the United States, but in fact no research exists on the causes, which remain unknown. Work- shop participants noted that recent work on problem-solving policing and the disruption of drug markets shows some promise, although the disrup- tion is to physical marketplaces for the most part rather than the markets themselves. In the end, local, federal, and international agencies may be effective in disrupting transnational markets only if they act cooperatively, rather than singly or in competition with one another, and only if they are able to devise creative prevention and deterrence strategies to complement traditional enforcement activities. For complex organized and white-collar offenses, these strategies may involve civil and regulatory actions in lieu of or concurrent with criminal prosecutions, for example. CURRENT AD HOC ARRANGEMENTS One response to the inadequacies of local law enforcement agencies
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38 TRANSNATIONAL ORGANIZED CRIME with regard to transnational offenses is the formation of multiagency task forces. These task forces typically involve formalized relationships between agencies with specific agreements that pertain to a specific case or type of crime. Task forces can provide a structure for pooling resources ancl infor- mation ancl for the development of guidelines for interagency cooperation in complex cases. Many law enforcement agencies view task forces with skepticism, how- ever. Task forces can create a drain on alreacly-limitecl time ancl resources, ancl their continuccl success depends on a steady flow of important ancl solvable cases or investigative breakthroughs on a big case that focus atten- tion ancl provide a set of common problems to work on. Schlegel (1998) notes that task forces are typically, formed to demonstrate that attention is being given to a problem, with no real effort to define the tasks of the group, the functions of the participating agencies, or even the general orga- nizational mission (Schlegel, 19981. Although some task forces achieve their goals in solving cases, many others appear simply to meet perioclically, with little actual coordination or cooperation in solving cases taking place. One participant noted that some agencies appear to see task forces as vehicles to get more resources. Work- shop participants urged caution in using "tip of the iceberg" metaphors ancl other exaggerated language to describe transnational crime problems. There was concern that one or two cases involving immigrant offenders can be used to "create a problem" at the local level, which in turn results in the r . . . . 1 . creation or an expensive anc ~ unnecessary investigative unit or multlagency task force. CONCLUSION The workshop discussion yielded important insights about law enforce- ment efforts ancl their implications for future research. The federal govern- ment is exploring a variety of methods for increasing its capability to con- trol transnational crime; the focus of that effort is investigation rather than long-term recluction. Such investigations require substantial cooperation between the countries touched by individual crimes, ancl it seems impor- tant that cooperation be clearly spelled out in formal agreements. Research efforts tied to this investigative focus may prove useful in developing better information about transnational crimes ancl justice system responses to them. At the local level in the Unitecl States, there is little awareness of
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ENFORCEMENT 39 transnational crime, although it appears that local participation would ben- efit investigations, since transnational offenses frequently first surface there. Thus, successful identification, investigation, and prosecution of . . . . . . . . transnatlona1 crimes may require cooperation not only between countries, but also (in the United States) between federal and local levels of govern- ment. However, given the limited capacities and authority of local law enforcement agencies to fully investigate these matters, their role must be carefully thought out. The clear articulation of goals, responsibilities, and the tasks appropriate to each jurisdictional level, along with careful docu- mentation of joint investigative efforts, could serve as a basis for a program of evaluation research in this area.
Representative terms from entire chapter: