Counterterror and Organized Crime as Competing Goals for Law Enforcement

Organized Crime / Counterterrorism

AL CAPONE OR AL QAEDA?:

ORGANIZED CRIME AND COUNTERTERRORISM

AS LAW ENFORCEMENT PRIORITIES IN 2014

Should law enforcement in America prioritize fighting counter-terrorism or fighting organized crime? A full examination of the history and issues involved with both will, I would argue, make the answer clear: with the proper definitions involved of both terror and organized crime, it is the latter which genuinely deserves the attention of law enforcement, and the former which has become the stuff of paranoid post-9/11 fantasy. However, to a certain extent, we will understand the way in which definitional creep can effect both subjects: what is the difference between a terrorist organization and a transnational organized crime enterprise? Why do we not consider a Mexican drug cartel so powerful that it routinely executes scores of people to intimidate local populations not considered a terrorist organization? I would like in this paper to examine the definition and rough history of both organized crime and terrorism in America, and conclude by examining current law enforcement priorities and strategies to indicate our current direction is incorrect. Right now American law enforcement still has an emphasis on counter-terrorism, while the focus should be placed on organized crime, clearly defined.

While organized crime is nothing new, the federal and state effort to combat it through legal means -- thereby offering us a convenient definition -- is fairly new. It is true that the Prohibition era and after saw the rise of large-scale criminal enterprises, yet the irony was that there were no specific laws defining or targeting organized crime at those times when organized crime was arguably most powerful. Certainly organized crime in America dates to before the Civil War in the first half of the nineteenth century, and has found an attentive historian in Herbert Asbury, whose book The Gangs of New York details the prominence of armed street gangs going to war over territory and control of criminal enterprise in the 1840s and 1850s: however, the difficulty with looking at this early time period covered by Asbury is that, as he himself does not fail to note, local government in New York under "Boss" Tweed was itself so thoroughly corrupt that by contemporary standards law enforcement itself would qualify as an organized crime enterprise as well. To find a more modern sense of organized crime would require looking at the early twentieth century, when the passage of the Volstead Act and a constitutional amendment prohibiting sale of alcohol resulted in large-scale criminal enterprises developed to violate those now-repealed regulations. At this point in time, in the nineteen-twenties, criminal enterprises were largely united by ethnic origin, and could generally be identified as based on Italian-American, Irish-American, or Jewish-American. Such a pattern would continue well into the nineteen-fifties, when U.S. Senator Estes Kefauver held a series of hearings to indicate specific federal interest in organized crime, and afterwards. Before allowing the discussion to degenerate into some potential promulgation of ethnic prejudice, however, it is important to note that this is a subject that has been studied extensively and academically. Arguably the most useful theoretical approach to the subject came at the time of the Kefauver hearings, when the social scientist Daniel Bell published his study "Crime as an American Way of Life," which gave rise to what is today known as the "ethnic succession theory" or "social succession theory" as a means of approaching the topic of organized crime. Bell's 1953 thesis is still valid today:

…for the young criminal, hunting in the asphalt jungle of the crowded city, it was not the businessman with his wily manipulation of numbers but the "man with the gun" who was the American hero… [I]n the crowded slums, the gangster… was a man with a gun, acquiring by personal merit what was denied to him by complex orderings of a stratified society. And the duel with the law was the morality play par excellence: the gangster, with whom rides our own illicit desires, and the prosecutor, representing final judgment and the force of the law.

The desires satisfied in extra-legal fashion were more than a hunger for the "forbidden fruits" of conventional morality. They also involved, in the complex and ever shifting structure of group, class and ethnic stratification, which is the warp and woof of America's "open" society, such "normal" goals as independence through a business of one's own, and such "moral" aspirations as the desire for social advancement and social prestige. For crime, in the language of the sociologists, has a "functional" role in the society, and the urban rackets -- the illicit activity organized for continuing profit rather than individual illegal acts-is one of the queer ladders of social mobility in American life. (133)

Bell's advancement of what we now term "ethnic succession theory" hinges upon this sense of a "queer ladder of social mobility," in which the criminal enterprise ultimately offers (through its financial gains and its influence over law enforcement) otherwise stigmatized or downtrodden ethnic populations a way to assimilate. We can see the social mechanism that is outlined by Bell in the Prohibition era: Joseph P. Kennedy, father of JFK, had been a bootlegger illegally organizing imports of liquor from Canada during Prohibition, but by the time of Franklin Roosevelt's election he would be named by the President as Ambassador to the Court of Saint James (the official title for America's ambassador to the United Kingdom). Meanwhile a contemporary of the elder Kennedy, Moses Annenberg, had been a crucial member of the Mafia's illegal gambling operations by running their print services: his son Walter Annenberg would be appointed by Richard Nixon to be Ambassador to the Court of Saint James. In both of these cases, a different ethnic group (Irish Catholic, Jewish) had gone from organized criminal enterprise to the height of wealth and official political prestige within one generation. In other words, what Daniel Bell had described as a "queer ladder of social mobility" was indeed active and effective for a very long time.

However a real and specific legal definition and means of combating organized crime would be adopted relatively late in America, and can be pinpointed to 1970 when Congress approved legislation known as the Organized Crime Control Act. Title IX of this Act, sometimes referred to as RICO (or the "Racketeer Influenced and Corrupt Organization" Act) is probably the most famous portion, but its method may perhaps demonstrate why America had no specific legal definition of organized crime for such a long period. The short answer is that RICO does not focus on crime, it focuses on organization. After all, no new types of crime are generally invented by organized crime, and therefore RICO maintains standard definitions of criminal activity while looking for organizations that engage in two or more of those standard criminal activities in a systematic way. The remaining difficulty with the RICO provisions, however, are that they are easily susceptible to abuse by law enforcement: the purpose of the law was to offer law enforcement a ready means of going after large-scale organizations, but the limitations of the definition, and the provisions for financial penalties which can amount to revenue for law enforcement, mean that the law can be mis-applied to smaller scale enterprises who happen to be engaged in two or more qualifying offenses. There are, of course, other laws that have been passed in order to help the fight against organized crime, such as the earlier 1961 Travel Act, for which Siegel (2010) offers a useful definition: "the Travel Act prohibits travel in interstate commerce or use of interstate facilities with the intent to promote, manage, establish, carry on, or facilitate an unlawful activity; it also prohibits the actual or attempted engagement in these activities" (416). The later 1986 Money Laundering Control Act was legislated as part of the later attempt to combat drug-trafficking enterprises, and surprisingly this relatively recent legislation was the first time in which money laundering (generally a crucial activity for most large-scale criminal enterprises) was actually defined as a crime.

To take a contemporary 2014 example of a criminal organization operating within the United States -- and one that may highlight some difficulties with the fight against organized crime in the new millennium -- I would like to focus on Los Zetas. From the outset, we can see what the difficulty is: Los Zetas is technically not an American but a Mexican criminal organization, a drug-trafficking cartel. However their base is in Nuevo Laredo, Mexico, just across the boundary line from Laredo, Texas. In other words, the fact that Los Zetas is a "transnational criminal organization" and not an American one is a technicality: the difficulty of pursuing law enforcement goals across the U.S.-Mexico border is actually one of their chief advantages. Los Zetas also clearly shows the way in which corruption and money can influence the way organized crime operates: the group was formed in 1999 by former elite members of the Mexican military's special forces, who had been tasked with fighting drug trafficking but who instead went over to the other side to work as armed enforcement for the Gulf Cartel in its longstanding battle for control over the drug trade with the Sinaloa Cartel. The impossibility of the fight in Mexico, combined with the high potential for profit in the trade, made this defection happen. It is important to note, however, that Los Zetas have technically only been their own cartel since 2010: from 1999 to 2010, they were essentially the paramilitary enforcement wing of the Gulf Cartel. But by 2010, Los Zetas split off from the Gulf Cartel, and became a rival: they are currently better-organized and quite possibly more profitable than either of the two older rivals, the Gulf and Sinaloa Cartels. However, their origins as military commandos are the most noteworthy fact about them -- it would be as if the Navy Seals took over the crystal meth trade in the American Midwest, or if an elite wing of the CIA handled all crack cocaine concessions in U.S. cities. The crucial thing to note is that, while Los Zetas may not be based in America, nor are their criminal activities restricted to America, America provides the financial basis for their existence. A June 12, 2012 investigation in the New York Times revealed that Los Zetas had been laundering money for several years through the purchase of race-horses in America, eventually prompting a federal raid on the Oklahoma horse-ranch where this laundering enterprise centered. What is astonishing is not that such a large drug-trafficking organization would need to launder money but the fact that they were so brazen in the way that the did it: the Times reports that their activity began with buying "an estimated $3 million in quarter horses, including one named Number One Cartel" and eventually attained a level where "the Zetas funneled about $1 million a month into buying quarter horses in the United States." (Thompson 2012). The fact that the Zetas would actually buy and name a racehorse "Number One Cartel" indicates not only the level of wealth but also the level of impunity they enjoy. This activity also highlights one of the most salient aims of a criminal enterprise engaged in large-scale money laundering -- the laundering ultimately makes a return on its investment, just as the Times records that the racehorses would win "prizes totaling some $2.5 million" in additional profit from a legal activity funded by illegal means. This very fact should indicate that Daniel Bell's "queer ladder of social mobility" is alive and well, and give us a vibrant contemporary example of how it operates. It is possible that such large sums of money could eventually be used to start thriving legal business concerns in the fashion of a Joe Kennedy or a Moses Annenberg. However the Mexican cartels had previously been careful to avoid any obvious money-laundering schemes -- largely based on the 1986 legislation that had been instituted precisely to go after the laundered profits of drug cartels -- largely by dealing in cash only: the Washington Post reported on August 26, 2010 the Mexican "drug traffickers and their Colombian suppliers smuggle $20 billion to $25 billion in U.S. bank notes across the southwest border annually as they seek to circumvent banking regulations and the suspicions aroused by large cash deposits, studies by federal officials, regulators and academics show." (Booth and Miroff, 2010). Richards (1999) demonstrates however that financial analysis of large scale crime targets is very difficult unless it becomes as obvious and crass as this: "There are two main financial investigation tools used to determine if the target's spending habits reflect an 'honest living'. The first is known as a 'net worth analysis,' generally used where the target has conspicuous assets, and a 'source and application of funds analysis,' generally used where the target has conspicuous spending habits." (Richards 1999, 215). As long as the Zetas effectively hide assets and do not indulge in conspicuous spending, financial analysis is a weak tool to attempt to prosecute them. And of course Los Zetas take advantage of the international dimensions of operating criminal enterprises in America from the safe side of the Mexican border: this is something that Phil Williams (1997) has emphasized about the more general conditions of economic globalization, which have basically made things easier for organized crime: "the increase in transnational economic activity has made it easier to hide illicit transactions, products and movements because law enforcement agencies and customs officers are unable to inspect more than a small proportion of the cargoes and people coming into their territories. As a result, national borders have become increasingly porous." (Williams 1997, 318). Moreover there has been a total failure of law enforcement on the Mexican side: Los Zetas basically are the law enforcement, as we have seen. In point of fact, the American and Mexican governmental attempts to contain Los Zetas have been miserable failures, but the most significant threat to the organization may have come from an otherwise unrelated group, one which indeed blurs the lines between organized criminal activity and terrorist activity, namely the "hacktivist collective" referred to as "Anonymous." The Guardian on November 2, 2011, reported that the loose affiliation of computer hackers had obtained substantial records that could be used to "expose collaborators with [the] cartel," which resulted in Los Zetas "hiring its own security experts to track the hackers down" (Arthur 2011). In other words, perhaps indeed it does take a predator to catch a predator, as the old saying goes.

Given the unusual novelties in how Los Zetas operate as an American organized crime enterprise -- for a start they are technically not American but transnational, but they also display state-of-the-art military-style organization and secrecy -- it is quite natural to see a blurring of definitions between this type of organized crime and the bigger priority in American law enforcement today, which is counter-terrorism. The purpose of terrorism is, of course, to have a political and social effect (terror) that is felt well in excess to the actual numbers of people who perpetrate and support the acts performed. As a result, some of the best known events in American history that could qualify as terrorist actions -- John Brown's 1859 raid on Harper's Ferry, the Haymarket bombing in the late nineteenth century, or Timothy McVeigh's 1995 Oklahoma City bombing of the Alfred P. Murrah Federal Building -- occurred in a context where there was hardly widespread or well-armed support for the actions taken. They were essentially ultraviolent publicity stunts. Although may Americans supported John Brown's abolitionist aims, there was hardly support for his attempt to kickstart widespread bloodshed, neither when he had earlier engaged in it during the "Bleeding Kansas" incidents nor when he perpetrated the abortive attack on Harper's Ferry. The Haymarket bombing may or may not have been perpetrated by anarchists, but even if it was the ideological threat posed by anarchism was more frightening to law and order as an ideology than as a political reality. Likewise McVeigh's deranged motives -- as far-right libertarian revenge attack on the idea of governmental overreach, as vengeance for Federal raids gone wrong at Waco and at Ruby Ridge in the early nineteen-nineties -- were not shared by anyone on the American right, even if he might have been seen as a direct inheritor of anti-government rhetoric from the political right wing in America (Serrano 1998, 73). The three noteworthy examples of domestic terrorism perpetrated on Americans by Americans all demonstrate their status as ideologically motivated terrorism, and also as far-flung outliers. But in each of these three incidents we can at least understand the motivation as being ideological and therefore solidly within a definition of what terrorism is -- even the Haymarket bombing, which may not have been perpetrated by anarchists but "likely as not a Pinkerton agent provocateur," would have had an ideological motivation of discrediting the anarchist movement (as a "false flag" operation of sorts) if it was not an anarchist-perpetrated act of terror (Green 2007, 230).

But the definition of what constitutes terrorism then becomes somewhat fuzzy outside clear-cut cases like this. For example, the Oregon "Rajneeshpuram" incident from the nineteen-eighties -- in which members of a religious cult deliberately introduced salmonella bacteria into salad bars at local Oregon restaurants, effectively poisoning over 750 individuals -- has been termed a "bioterror attack," whose purpose was to affect local elections. This would seem to have all the signs of a terrorist attack -- the use of unconventional weapons and means, the strong (indeed fanatical) ideological motivation, the explicit political goal -- except for fatalities. It is also unclear what sort of police work could prevent an incident like this, apart from heavy profiling of religious minorities or armed guards and CCTV coverage at salad bars. Likewise many of the most terror-inducing incidents of recent years had seemingly no terrorist goal in mind whatsoever: attempts to find some kind of ideological motivation in the Columbine shooters or in the Newtown CT mass-murderer Adam Lanza have turned up nothing. This does not mean that the public does not react as though reacting to a terrorist attack -- post-Columbine high schools frequently have the kind of armed guards and metal detectors that we associate with post-9/11 airports -- but it does mean that the incident in itself cannot be classified as terrorism.

Obviously, however, the largest recent terror atrocities have been committed by ideologically-motivated Muslim believers: these include the failed bombing of the World Trade Center in the nineteen-nineties and the more successful terror attacks of September 11, 2001 perpetrated by Al-Qaeda. As a criminal organization, Al-Qaeda is practically nothing compared to an organization like Los Zetas: were it not for the determination to perpetrate horrifying and unexpected acts of public violence, without any clear and specific goal in mind, Al-Qaeda's ideological goals would be seen as being as far-out and fringe-dwelling as Timothy McVeigh's. However the success of 9/11 was mostly in getting American law enforcement to take the bait, and engage in a policy of systematic paranoia and overreach. So after the Al-Qaeda attacks of September 11, the Federal Bureau of Investigation announced a policy of making counterterrorism its top priority, even though the average U.S. citizen has an immensely greater statistical likelihood of being killed by an automobile than by a radical Islamist. Aaronson (2011) cites statistics showing that since September 11, the FBI devotes about 3.3 billion dollars per year to counterterrorism efforts, and only 2.6 billion per year to combat organized crime. This is despite the fact that an organized crime arrest could result in vast seizures of laundered money and assets, effectively bankrolling whatever other activities the Bureau needs to perform, and despite the fact that statistically speaking terrorist activities are uncommon. But we are not in the realm of reasoned policy here: law enforcement has succumbed to the publicity-seeking and paranoid motivations of the terrorists themselves, and thus turns "preventing another September 11" into a law-enforcement policy goal that must be pursued at all costs. The costs, needless to say, have turned out to be quite considerable. And what does law enforcement have to show for over a decade of pursuing this new top priority? Aaronson's 2011 examination of terrorism-related arrests in the first decade after September 11 demonstrates that most of what has occurred is entrapment orchestrated by law enforcement itself -- statistically he offers that 48% of arraigned "terrorists" were "targeted by an informant," 31% were "nabbed via a sting" and 10% were "lured in by an informant who led the plot" (Aaronson 2011, 38). If this is indeed the most important law enforcement issue of the new millennium, it is curious that federal law enforcement should devote so much of its resources to orchestrating and fomenting phony terror-plots to entrap potential ideological suspects than it does in finding actual or real terrorism.

If this sounds like a serious mistake in prioritization on the part of law enforcement, it is. Because terrorism is designed to be fairly unpredictable -- as noted, the only way to prevent another Rajneeshpuram-style "bioterror" attack would be placing a heavy police presence at the nation's salad bars -- it is by definition uncommon and difficult to prevent. While this does not mean that law enforcement should abandon all attempts at prevention, it does demonstrate that the level of overreach has not had any clear results: indeed the revelation by Edward Snowden of large-scale computer surveillance by the NSA also resulted in an admission that such vast and possibly illegal levels of snooping have also resulted in no concrete results. Moreover, as Greenwald (2012) notes, there is no realistic goal here: "[There] is one key factor that distinguishes the War on Terror. By its nature, it will never end, at least not in the foreseeable future. It is a 'war' far more in a metaphorical sense than a real one. Since it began, both administrations who have waged it have expressly acknowledged its virtually indefinite - and thus unique - nature." (Greenwald 2012). Because the costs of not preventing another September 11 are so high, however, law enforcement has essentially taken the bait offered by Bin Laden and been led into devoting its substantial resources toward countering a threat that does not genuinely exist. But it is worth noting that there would be little strategic difficulty in subsuming counterterror efforts under the heading of organized crime: what is Al-Qaeda, after all, if not an organized criminal enterprise? The only thing missing from definining it as a more convention organized criminal enterprise is the profit motive -- but the ideological motive has replaced that with a heavenly reward. This then brings us to the question of how we define organized crime, versus how we should define it. Cressey (1967) usefully laid out the difficulties that are found in any academic attempt to define the nature of organized crime itself -- the terms he uses might just as easily be applied in some ways to terrorist organizations: