International and Transnational Crime

THE NORWICH REVIEW OF

International and Transnational Crime Melvin Otey Transnational Organized Crime Al Saibini Supply and Demand: Drug Smuggling in 2015 Patrick Walsh Losing Tools in the Intelligence Toolbox: Predicting Future Changs to FISA to Protect Future National Security Prosecutions Jerome M. Conley The Intersection of Wildlife Trafficking and Insurgencies in Africa Yangmo Ku Engagement or Pressure? Dealing with North Korea’s Crimes against Humanity Kristy Holtfreter and Travis J. Meyers Challenges for Cybercrime Theory, Research, and Policy Jennifer Brooke Marshall A Case Study on Eurasian Organized Crime Groups Recently Indicted In New York

The 2015 Inaugural Issue

The Norwich Review of International and Transnational Crime The 2015 Inaugural Edition

Copyright

The Norwich Review of International and Transnational Crime Published by The Program of International and Transnational Crime A Division of NUARI at Norwich University

Editor Gabriel C. Lajeunesse, J.D., Editor Director; International Law Research Fellow Journal Point of Contact Gabriel C. Lajeunesse [email protected] Production Editor Jessica DeVisser, Five7Alpha, Inc. Affiliation The Norwich Review of International and Transnational Crime (NRITC) would like to acknowledge our partner association with the Institute for the Study of Culture and Language (www.iscl.norwich.edu) and Norwich University Applied Research Institutes (NUARI) (http:// nuari.org) About NRITC The Norwich Review of International and Transnational Crime is a publication of the Program for International and Transnational Crime (PITC). PITC is housed within the Institute for the Study of Culture and Language, where it supports Institute programs developing crosscultural communications skills among law enforcement, intelligence and security agencies. In keeping with the Norwich tradition of developing leaders to “advance the causes of the Republic, ensure its continued freedom, and develop the economic, political, and social infrastructure of this new century,” the PITC will prepare scholars and practitioners for the challenges posed by international and transnational crime, and will partner with appropriate agencies in efforts to combat these threats.

The program seeks to enable practitioners, scholars, and students to better analyze legal and investigative issues in transnational crime, evaluate courses of action to neutralize those threats, demonstrate competency for cross-cultural communication, and apply that knowledge in law enforcement and/or security settings. The PITC program is directed by Gabriel C. Lajeunesse, J.D., Research Fellow, International Law and Policy. Environmental and Ethical Policies NRITC is committed to bringing quality information to a wide and diverse audience. NRITC strives to protect the environment by remaining 100% electronic publication and encourages you do to the same. Instead of printing this document, where possible, spread it’s influence through electronic methods. Permissions For information or to request permission to reproduce any part of this journal, please contact the editor, Gabriei C. Lajeunesse at [email protected] Disclaimer Statements of fact and opinion contained within the articles of NRITC, made by the editor, the editorial board, the advisory panel or article authors, are those of the respective authors and not of NUARI, Norwich University or the Institute for the Study of Culture and Language. NUARI, Norwich University or ISCL does not make any representation, in respect of the accuracy of material in this journal and cannot accept any legal responsibility or liability for any errors or omissions that may be made. The reader should make his/her own evaluation as to the appropriateness or otherwise of any information

Copyright © 2015, Program for International and Transnational Crime. All rights reserved. Commons Attribution- NonCommercial No Derivatives 4.0 International License

Editorial Board Michael James Barton Security Solutions Global Office of the Secretary of Defense, International Security Affairs Staff (2006-2009) White House, Homeland Security Council Staff (2003-2006) James Dinkins Thomson Reuters Special Services Executive Associate Director, ICE Homeland Security Investigations (Ret) Kevin Favreau, First Tee Federal Bureau of Investigation, Special Agent in Charge (Ret) Thomas W. Geary, Brig. Gen., USAF Norwich University, Class of 1988 Greg McCurdy, V.P. SBE Entertainment Assistant Sheriff, Las Vegas Metro Police Department (Ret) David Stewart, J.D., L.L.M., Professor, Georgetown University Law Center US Department of State, Assistant Legal Advisor (Ret) William Wunderle, Division Chief Political - Military Affairs, Middle East Directorate, The Joint Staff, J5 (2009-Present) Douglas Farah, President, IBI Consultants CSIS Senior Associate, Americas Program Author: Transnational Organized Crime, Terrorism, and Criminalized States in Latin America


Jim Kirdar, Special Agent HQ Investigations Division, DOJ/OIG Yangmo Ku, Ph.D., Assistant Professor, Norwich University Director, International Studies Program Maren Leed, Ph.D., Center for Strategic and International Studies Senior Advisor, Vice Chairman of the Joint Chiefs of Staff (2005-2008) Sylvia Longmire, Longmire Consulting Consultant on US/Latin American Security Issues Author, Cartel; Border Insecurity W. Travis Morris, Ph.D., Assistant Professor, Norwich University School of Justice Studies and Sociology Brad Nicholson, LTC, USA, USAFRICOM Security Cooperation Officer, US Embassy Uganda (2011-2013) Foreign Area Officer, US Embassy Tanzania (2010-2011) Dermot O’Reilly, Deputy Director, International Operations Defense Criminal Investigative Service Director, Joint Counterintelligence Unit—Afghanistan (2012-2013) Josh Perles, J.D., Perles Law Firm, P.C. International Law Litigation Practice Ahmed Qureshi, Ph.D., V.P. DynCorp International COMISAF Advisory and Assistance Team (2012-2013)

Jim Gavrilis, The Gavrilis Group LTC, US Army Special Forces (Ret)

C. Dart Thalman, Ph.D., Visiting Professor, Norwich University Department of Political Science

Charles Faddis, J.D., Orion Strategic Services CIA Clandestine Service, Operations Officer (Ret) Author, Willful Neglect: The Dangerous Illusion of Homeland Security

Patrick M. Walsh, J.D., L.L.M., Associate Professor, United States Army Judge Advocate General's Legal Center and School Assistant United States Attorney, on Leave of Absence

Matthew Levitt, Ph.D., Washington Institute for Near East Policy Deputy Assistant Secretary for Intelligence and Analysis, Treasury Dept (2005-2007) Author: Hezbollah: The Global Footprint of Lebanon's Party of God

Table of Contents


i

Introductory Remarks Gabriel C. Lajeunesse, J.D., Editor

Director of the Program of International and National Crime

1

Transnational Organized Crime Melvin Otey

10

Supply and Demand: Drug Smuggling in 2015 Al Saibini

22

Losing Tools in the Intelligence Toolbox: Predicting Future Changes to FISA to Protect Future National Security Prosecutions Patrick M. Walsh, J.D., L.L.M.

35

The Intersection of Wildlife Trafficking and Insurgencies in Africa Jerome M. Conley

46

Engagement or Pressure? Dealing with North Korea’s Crimes Against Humanity Yangmo Ku, Ph.D.

54

Challenges for Cybercrime Theory, Research, and Policy Kristy Holtfreter and Travis J. Meyers

67

A Case Study on Eurasian Organized Crime Groups Recently Indicted In New York Jennifer Brooke Marshall

Introductory Remarks Welcome, reader, to the inaugural issue of The Norwich Review of International and Transnational Crime (NRITC). We are excited for the opportunity presented here, and look forward to future discussions of these serious threats. At the onset, it might be useful to answer common questions that were posed during the launch of this initiative at Norwich. Is there a need for a new review of this nature? Isn’t this material covered adequately in existing academic journals? What is the purpose of the review; what does it hope to accomplish? Finally, why “international and transnational crime” isn’t that redundant? First, the NRITC is meant to fill a void in a discussion of policy and enforcement measures. This is desperately needed. While certain aspects of transnational crime—say international narcotics enforcement or counterterrorism policy—have found a home in various existing publications, there is nothing dedicated to these topics. Nor has it been generally treated with the seriousness—as a threat to vital national security interests—that it deserves. In the years preceding the terrorist attacks of September 11, 2001, there was quite a bit of debate about “the new world order.” While the discussion was mostly about balance of power theory in a world in which the United States appeared hegemonic, on the margins of that, there was significant discourse about emerging threats from non-state actors—ethnic and sectarian warlords, international criminal enterprises, terrorist groups etc. These were beginning to be described as threats posed by relatively flat, cell based networks, able to exploit the seams and barriers to security officials presented by international borders. Some argued that these networks presented an asymmetrical threat which could destabilize nations and regions in ways that the United States was not equipped to address.

The Norwich Review of International and Transnational Crime, 2015 Edition

i

While 9/11 could be pointed to as a proof of this theorem, most discussion narrowed to a focus on counterterrorism and antiterrorism policy: U.S. efforts against al-Qa’ida and the Taliban in Afghanistan and affiliated networks word wide, the Patriot Act, enhanced interrogation, and a realignment of domestic law enforcement under the umbrella of the Department of Homeland Security. In 2005, Moises Naim published his important book: “Illicit: How Smugglers, Traffickers, and Copycats are Hijacking the Global Economy,” where, as the title would suggest, he demonstrated the significant threat posed by transnational crime. At the time of its publication, sectarian conflict that threated to blossom to civil war had begun in Iraq, the Taliban had begun to gain traction again in Afghanistan, and the flubbed response to Hurricane Katrina overwhelmed a battered Bush Administration. The discussion that Naim’s work should have started (or restarted) was overcome by the crises of the day. For many active in federal law enforcement, intelligence, diplomatic and certain legal and military communities—transnational and international crime never went out of vogue. In the fourteen years since 9/11, the Federal Bureau of Investigation has rebranded itself as an “intel-driven national security and law enforcement agency,” the Department of Homeland Security refocused on export control enforcement, the Drug Enforcement Agency has continued to take its mission to the transnational origins of narcotics production facilities in Latin America and Asia, and major metropolitan police department have stood up Fusion Centers and counterterrorism units that investigate cross-borders. None of this would be possible without diplomatic efforts of the Department of State and liaison relationships between the Department of Justice, U.S. law enforcement and intelligence and their counterpart agencies abroad. Such liaison requires significant expenditure of resources to ensure proper bilateral and multilateral agreements are in place, and long-term relationships are built and maintained with foreign law enforcement and intelligence entities. The level of cultural, linguistic, and political skill needed to execute these missions alone is worthy of study—and make this review particularly appropriate to be funded as part of Norwich University’s Institute for the Study of Culture and Language. While strides have been made by U.S. agencies of their own accord, discussion and review of US policy on international and transnational crime can be improved through the type of public dialogue for which the NRITC will provide a venue. These are interdisciplinary problems, which can only be properly addressed by inclusion of multiple agencies across disciplines. Take for example a network smuggling oil from Syria into Turkey for the Daesh (the Islamic State- ISIS)—is this a problem for the CIA, Treasury Department, State Department, FBI, or maybe a target of a military strike? Yes (potentially) to all of the above. Likewise, policy debate must take place outside the confines of a single discipline. These are not law enforcement problems, they are national security problems. Therefore the NRITC invites scholars and practitioners from across a variety of relevant disciplines to contribute to the discussion presented here.


ii

As to the purposes of the NRITC, it is to describe and assess ongoing policy prescriptions in addressing international and transnational crime, as well as to propose forward looking policy solutions and ideas to help us better neutralize these threats. This discussion will necessarily include reviews—case studies—of major enforcement initiatives to determine lessons learned, and where appropriate, suggest alternative pathways for the future. Finally, for the point on international and transnational crime, and potential redundancy in terms—here we are focused on the strict legal sense of these separate, but overlapping concerns. Transnational crimes are those offenses for which Congress has provided a criminal penalty regardless of where the offense occurs. This is an issue of applicability of U.S. law abroad, or extra-territorial jurisdiction. For example, someone using narcotics in a foreign country would not be prosecutable in U.S. courts, because Congress has not provided extra-territorial jurisdiction over such offenses. Someone plotting a terrorist attack against the U.S. in a foreign country may be prosecuted in the U.S. because such jurisdiction has been granted in federal law. Most of the focus of the NRITC will be on transnational crimes, from the perspective of U.S. domestic law. International crimes are those offenses which are codified in international law—primarily treaty. These include the heavy crimes of genocide, crimes against humanity, torture, and piracy. Often these have been the kinds of offenses tried in international war crimes tribunals—but treaty regimes have been expanding, and now international crimes include aspects of organized crime, money laundering, and certain narcotics related crimes. Treaty regimes involved often include requirements for mutual legal assistance and law enforcement cooperation, to include extradition. With those preliminaries, we are now pleased to present the inaugural issue of the NRITC. This initial issue is meant to provide an overview of the subject matter. Future issues will focus deeply on a particular area of international and transnational crime. We lead out with a piece by retired federal prosecutor, Melvin Otey, who in his brief survey, introduces many of the key threats and areas of enforcement focus. Al Saibini, a retired DEA Agent whose last government posting was as the senior coalition narcotics enforcement officer in Afghanistan, provides an overview of the worldwide narcotics trade in 2015. Assistant U.S. Attorney, Pat Walsh, currently on military orders in his National Guard post to the U.S. Army Judge Advocate General School in Charlottesville, VA, provides an overview of intelligence tools available for national security investigations such as espionage or terrorism, with some cogent warnings to law enforcement as they move forward in an environment of rapidly narrowing allowable techniques. Jerry Conley, of the Virginia Tech Applied Research Corporation, provides an interesting piece on terror finance via wildlife trafficking, highlighting this as an issue that worthy of increased international effort to combat. Shifting toward international crime, Dr. Yangmo Ku, of Norwich University, provides an example of crimes against humanity in the case of North Korea, along with some suggested policy prescriptions. Dr. Kristy Holtfreter and Travis J. Meyers of Arizona State University, tackle the issue of transnational cybercrime, through the


iii

theoretical lens of Routine Activity Theory. While their discussion is applied to cybercrime, many of the same issues—namely the lack of strong enforcement and deterrence measures across borders—apply to other international and transnational crimes. Our final piece is a short case study by Jennifer Brooke Marshall, Esq., who worked with the New York City Field Office of the FBI, to review an investigation of a Russian organized crime network operating illicit gambling and money laundering operations in the U.S. We appreciate the work of all of our authors and their contributions to this important work. At this point, we are pleased to announce that our second edition will consist of an in depth review of national security crimes. We will be actively soliciting articles reviewing policy and case studies of enforcement actions related to crimes of espionage, sabotage, terrorism, leaks of classified information, export control violations and other forms of illegal technology transfer. Future issues will include further in-depth reviews in areas such as money laundering, narcotics smuggling, and international cooperation. We look forward to continuing to explore these important areas with scholars, students and practitioners for years to come.

Gabriel C. Lajeunesse, J.D., Editor October 15, 2015


iv

1

Transnational Organized Crime

Melvin L. Otey

Melvin L. Otey

The world environment has become increasingly conducive to the international movement of goods, services, capital, and information in recent decades. This is partly a by-product of changing geopolitical relations following the end of the Cold War, the dissolution of the Soviet Union, and the rapid demise of certain totalitarian regimes. It is also a natural consequence of the dynamic revolution in computer technology and the advent of the Internet, along with marked advances in mediums for travel and communication. Economies, in particular, are more globalized than ever, and these changes have begotten an unprecedented interconnection and interdependence between nationstates. Consequently, it is far easier now than ever before for individuals and groups to influence affairs across national borders. This globalization has been a double-edged sword. In some regards, it has been a laudable boon. For instance, freer trade generally means increased capital flows and lower prices. Also, compression of the world allows smaller, weaker, traditionally excluded nations to participate in markets and benefit from information and technologies that would have previously been unavailable to them. In other respects, however, the changes have exacerbated old dangers and created new ones. For example, exploitation and corruption have taken on pandemic dimensions, and the easier, cheaper and more efficient means of trade that facilitates the relatively free interchange of licit data, products, and labor have spurred more illicit exchanges as well. Globalization unquestionably impacts America’s vital interests in manifold ways, and crime extending across national borders, that is, transnational organized crime (or “TOC”), is one major facet of its influence. Transnational organized crime refers to the activities of more or less formal ongoing associations of individuals engaged in cross-border crimes. The term includes offenses planned, facilitated, controlled, committed in, or otherwise impacting, more than one nation-state via the exploitation of tools of international commerce and communication, whether wholly or partly by illegal means, for financial gain. James R.

Clapper (2014), Director of National Intelligence, recently described TOC as “an abiding threat to US economic and national security” where “[c]riminals can play a significant role in weakening stability and undermining the rule of law in some emerging democracies and areas of strategic importance to the United States” (p. 7). In so many ways, we live in a brave new world, and transnational organized crime is one of the dangers that accompany the tidal wave of recent change. Here, we will briefly survey some of the general trends and major activities that characterize transnational organized crime groups today and make them what the United Nations High-Level Panel on Threats, Challenges and Change (2004) described as “a menace to States and societies” that erodes human security and undermines the ability of nations to provide law and order for their respective citizenries (para. 165). General TOC Trends By operating transnationally, rogues significantly increase the complexity of their crimes, complicate the work of domestic law enforcement agencies, and expand their profit margins. According to the Federal Bureau of Investigation (2015), global organized crime reaps illegal profits of approximately $1 trillion per year (“Organized Crime, Overview”). The success of TOC groups is due largely to changes they have made in recent decades to exploit evolving geopolitical and technological conditions and generate newer and broader avenues to profit from corruption and crime. For instance, crooks that traditionally operated in relative geographical isolation have “colonized” new territories, forged foreign alliances, and developed international infrastructures. Also, as financial transactions have migrated from cash and negotiable instruments to electronic transfers, it has become easier for outlaws to pilfer and move funds more quickly and over greater distances than ever before.


2


Transnational organized crime has also thrived because information sharing and investigative cooperation between nation-states, though improving, has been “cumbersome” and “weak” (United Nations, 2004). Criminals are adapting and taking advantage of technological and geopolitical fluctuations more quickly and effectively than the governments and regulators seeking to prevent, restrain, and redress their lawless conduct. According to Bruce Ohr (2001), Chief of the Department of Justice’s Organized Crime and Racketeering Section, “We, and our colleagues in other countries, have therefore been caught unprepared by the sudden rise in transnational organized crime activities. We are not used to criminals who might reside in country A and travel to country B in order to commit a crime that takes place in countries C, D and E” (p. 40). Because rapid advances in technology, communication, and travel have outpaced the growth of mechanisms for global governance, geographic seclusion does not offer the insulation it once provided the United States, among other nations, and physical boundaries are no longer sacrosanct. Organized crime groups have adapted their structures as well as the scope of their operations in the current regulation vacuum. Members may coalesce because of common geography, ethnicity, skills, relationships, or niches within the world’s illicit marketplaces, but their compositions can quickly morph to strategically exploit discrete opportunities. This flexibility manifests, among other ways, in an increasing willingness to form non-traditional alliances that allow criminal groups to overcome cultural, geographical, and technological barriers that historically limited them. Consequently, criminals TOC are spreading their tentacles. Senator John Kerry (1997) aptly described the situation in this regard: The vast poppy fields in eastern Turkey are linked to the heroin dealer in downtown Detroit; the banker laundering drug money in Vienna is in league with the thriving cocaine refineries in Colombia. The men of the Chinese triads who control gambling and extortion in San Francisco's Chinatown work the same network as the Singapore gang that turns out millions of fake credit cards. The contract hit man who flies from

Moscow to kill an uncooperative store owner in New York, on behalf of the Organizatsiya, gets his fake papers by supplying the Sicilian Mafia with Soviet Army surplus ground-to-air missiles to smuggle into the Balkans to supply the Bosnian Serbs with firepower to take on UN security forces (“The New War”). While traditional groups like the Italian Mafia in the United States have typically maintained a strict hierarchy, today’s transnational groups employ flatter, more fluid, more flexible networks, and this makes them more dangerous. Major TOC Activities The ruinous effects of transnational organized crime groups on the world, in general, and American society, in particular, is attributable largely to the wide swath of serious criminal activity in which they participate. Indeed, they are heavily involved in the darkest, most distressing offenses of the modern era, including drug trafficking, human trafficking, weapons trafficking, money laundering, and a variety of financial frauds. The range of illicit activities itself presents special dangers because it creates synergies and economies of scale that magnify the groups’ toxic influence. Drug Trafficking Drug trafficking, a staple for organized crime groups, is quintessentially global. Products are cultivated in source nations, remitted through transit countries, and sold in consumer States. For example, cocaine is produced in remote parts of South American countries like Colombia, Bolivia, and Peru. For decades, Central America has served as a strategic transit route from these areas to the world’s largest market in the United States and elsewhere. Similarly, opium is grown in the Golden Triangle, which encompasses Burma, Thailand and Laos, along with the Golden Crescent of Afghanistan and Pakistan. It is then processed into heroin and transported from the Golden Triangle via Hong Kong, among other ports, to Canada and the United States, and from the Golden Crescent via Iran, Turkey, and the Balkan countries (including Albania,


3

Melvin L. Otey

Bosnia and Herzegovina, Bulgaria, Croatia, Greece, Montenegro, Romania, and Serbia) to Europe. Due largely to the global marketplace, drug trafficking has long been the most lucrative enterprise for organized crime groups, and it presents serious threats to the United States. Domestic effects include addiction and the corresponding physical and emotional damage, the spread of sickness and disease and the consequent drain on heath care systems, and the increase in violence that attends local trafficking and consumption. Further consequences include the overall exacerbation of lawlessness, the overwhelming burden on America’s criminal justice and penal systems, and the overall degradation of family units and the fabric of society. Illicit drug use also indirectly siphons productivity from the labor pool because of premature deaths, drug-related unemployment and absenteeism. Truly, illegal drug trafficking is a scourge on nearly every facet of American society. In addition to direct domestic effects, it is important to note that America’s participation in the global drug market fuels the power, impunity, and violence of criminal organizations worldwide (National Security Staff, 2011). For instance, there is growing evidence of a link between terrorist financing and narcotics profits (Cole, 2012), and there is a clear connection between fighting to control valuable trafficking areas and the murder rates in transit countries like Honduras and Guatemala (UNODC, “Transnational Organized Crime in Central America,” 2012). Additionally, Mexican cartels use extreme and pervasive violence to consolidate and control market share, protect their operations and expand their reach. In 2009, Secretary of State Hillary Clinton explained that the United States is experiencing the domestic effects of the growing power of foreign drug trafficking groups: [T]hese drug gangs have penetrated to America. Just a few weeks ago, hundreds of associates of these Mexican drug cartels were picked up from Atlanta to Seattle. They were everywhere in America. These are

vicious criminals who know that they can make billions of dollars on getting American young people, primarily, addicted to illegal drugs. And so Wisconsin, Illinois, no place is immune from their ruthless effort to try to dominate the drug trade (“Interview by Greta Van Susteren”). Human Trafficking Human trafficking refers to acquiring people through force, fraud or deceit for the purpose of exploiting them. This burgeoning transnational threat is second only to drug trafficking in profitability. Globally, more than 20 million people are trafficking victims (U.S. Department of State, 2014, p. 2), and at least 700,000 persons, mostly women and children, are trafficked within or across international borders each year (22 U.S.C. § 7101(b)(1), 2000). Victims typically come from Russia and former Soviet countries, Eastern Europe, and Asia and are trafficked principally into the United States, Canada, and Western Europe, but “[v]irtually every country in the world is a source, transit point, and/or destination for individuals being trafficked” (Clapper, 2014). Approximately 50,000 women and children are trafficked into the United States alone each year (22 U.S.C. § 7101(a)-(b)(1), 2000). Victims are ensnared in various ways. In some cases, poor families sell their children into bondage, wittingly or unwittingly. In others, adults from poor regions are lured to affluent countries with false promises of a better life and employment in domestic service as nannies or maids, in the restaurant industry as waitresses or clerks, or in the entertainment industry as dancers or models. Sometimes, victims are simply kidnapped, bought and sold in one nation, smuggled into another, and forced into servitude. In the destination countries, where victims are bereft of support and ignorant of the laws, languages and cultures, their dependence and isolation make them easy prey for exceptionally inhumane treatment. Victims are typically subjected to forced labor or sexual abuse, but they are sometimes targeted for, among other things, organ piracy, illegal


4


adoption and forced marriages. Psychological abuse, including threats of harm to family members remaining in victims’ countries of origin, is common. So too are sexual abuse (including rape), torture, starvation, and imprisonment. Enslaved persons are often kept in squalid, dungeonlike conditions; exposed to deadly diseases and denied proper medical treatment; and sometimes worked or brutalized to death. In light of these tortuous realities, it is easy to see why the United States Congress called human trafficking the largest modern manifestation of slavery (22 U.S.C. § 7101(a)-(b)(1), 2000). While sexual exploitation of women and children is particularly heinous and shocking, it probably seems remote for most Americans. However, human trafficking touches American lives in ways most citizens never imagine because it impacts the nationwide employment network and labor market. For example, between the years 2000 and 2007, a group of Ukrainian brothers recruited workers from Ukraine with promises of employment, room, and board. Operatives coached the workers on how to enter the United States illegally and, once they did so, the victims were compelled to clean large chain stores like Target and Walmart, as well as smaller stores. They lived with up to five people in one room, slept on dirty mattresses on the floor, and were never paid. They were also told that they had to work for the brothers until their debts, ranging from $10,000 to $50,000, were paid and were controlled with actual and threatened use of force, including brutal sexual assaults (U.S. Department of Justice, “Five Brothers Charged,” 2010). Human trafficking is obviously a plague with national and international implications, and transnational organized crime groups are at the heart of this trouble. Congress soberly explained the growing connection between human trafficking and organized crime in the “Purposes and Findings” of the Trafficking Victims Protection Act: Trafficking in persons is increasingly perpetrated by organized, sophisticated criminal enterprises. Such trafficking is the fastest growing

source of profits for organized criminal enterprises worldwide. Profits from the trafficking industry contribute to the expansion of organized crime in the United States and worldwide. Trafficking in persons is often aided by official corruption in countries of origin, transit, and destination, thereby threatening the rule of law (22 U.S.C. § 7101(b)(8), 2000). Weapons Trafficking In addition to trafficking in narcotics and people, TOC groups are heavily involved in illicit weapons trafficking, which primarily services those who require arms for criminal or political purposes. Because guns, in particular, are durable and the manpower and security needs for their transport pale in comparison to narcotics or human trafficking operations, they are trafficked differently than other commodities. As an initial matter, fewer criminal associations are necessary to move firearms internationally. A single broker with strong connections can purchase them lawfully in one country and transport them through regular commercial channels either by falsifying the requisite documentation or bribing key officials. In this way, outlaws can use domestic and international merchants as tools in their transnational transgressions. Notably, the flow of weapons is precisely the inverse of the flow of drugs and enslaved persons. While narcotics and people generally flow to more affluent States, arms typically travel from wealthier, more developed nations to regions that are less stable. For instance, guns can be acquired easily and cheaply in the United States (whose citizens constitute the most heavily armed civilian population in the world), and America is the primary source of firearms for the Mexican drug cartels that constitute such a bane to its society (UNODC, “The Globalization of Crime,” 2010, p. 129, 134; Clinton, “Interview by Greta Van Susteren,” 2009). Similarly, following the end of the Cold War, the former Soviet states generally downsized their vast military stockpiles, and as they deescalated their military spending, these resources were sometimes redirected to combat zones in Africa and other places (UNODC, “The Globalization of Crime,” 2010, p.130-131).


5

Melvin L. Otey

The conviction of Viktor Bout in 2011 illustrates some of the dangers international weapons trafficking poses for America’s citizenry. Between November 2007 and March 2008, Bout, a Russian citizen, agreed to sell millions of dollars’ worth of weapons to the Fuerzas Armadas Revolucionarias de Colombia (FARC), which has been designated a Foreign Terrorist Organization by the U.S. State Department. The weapons included 800 surface-to-air missiles, 30,000 AK-47 assault rifles, five tons of C-4 plastic explosives, airplanes outfitted with grenade launchers and unmanned aerial vehicles, and Bout, who was arrested in Thailand, specifically agreed that they would be used to attack U.S. citizens in Colombia (U.S. Department of Justice, “International Arms Dealer,” 2011). Of course, weapons trafficking also involves trade in nuclear, chemical and biological weapons and components that might readily be used in terror attacks. While weapons of this ilk were once only available to the world’s most powerful nations, the new global marketplace in which fantastically wealthy and well-connected TOC groups operate, affords criminal groups access as well (Rotman, 2000, p. 4). Although they may have no intention of using such weapons themselves, their willingness to forge alliances with others who would use them as tools to achieve their political goals makes the world far more volatile and dangerous for America and all other nation-states. Money Laundering In order to obfuscate the sources of their ill-gotten gains, criminals must launder the proceeds. Using the tools of global commerce, they are increasingly doing so transnationally through shell companies and offshore accounts. Today, dirty money easily migrates through a myriad of banking systems across the globe, along with a high volume of legal funds, in a matter of minutes. Billions of dollars in ill-gotten gains are moved this way and subsequently placed in various financial institutions, invested in real and personal property, or used to fund subsequent criminal activities. These machinations make illicit funds less conspicuous

and frustrates efforts by national and international investigative and regulatory agencies to prevent and combat organized crime. More than $1 trillion in illegal profits are laundered in various ways each year, and the U.S. financial system is particularly attractive and vulnerable to illicit financial flows (Clapper, 2014). The harm to America’s national security and economy that comes with corruption of its financial systems and institutions should not be underestimated. First, it undermines national interests in discovering and deterring criminal conduct. Second, it allows domestic and international outlaws to more fully enjoy the benefit of their unlawful gains by, among other things, plowing them back into their criminal enterprises. According to the State Department’s “International Narcotics Control Strategy Report,” such activity presents a plethora of serious global threats as well: Jurisdictions flooded with illicit funds are vulnerable to the breakdown of the rule of law, the corruption of public officials, and destabilization of their economies. The development of new technologies and the possibility of linkages among illegal activities that generate considerable proceeds, transnational criminal organizations, and the funding of terrorist groups only exacerbate the challenges faced by the financial, law enforcement, supervisory, legal, and intelligence communities (2014). Financial Frauds America’s citizens, businesses and governments (local, state and federal) are more exposed to financial frauds than ever before, and TOC groups persistently target them. Indeed, criminals using anonymous web sites to buy and sell stolen identities have caused billions of dollars in losses to the United States’ financial infrastructure. Some estimate that online frauds perpetrated by Central European cybercrime networks alone have defrauded U.S. citizens and entities of approximately $1 billion in a single year (Cole, 2012). Also, Nigerian groups are infamous globally for their financial frauds, and the Federal Bureau of Investigation estimates that they cost the U.S. an estimated $1 billion to $2 billion each year in auto


6


and life insurance schemes; bank, check, and credit card frauds; and document fraud to develop false identities, among other scams (“Organized Crime: African Criminal Enterprises,” 2015). Public frauds include welfare fraud, healthcare fraud, and government grant and loan program fraud. Eurasian Organized Crime groups, in particular, are heavily involved in some of the largest fraud schemes in American history. For example, in 2010, more than 40 members and associates of an Armenian-American organized crime group with leadership in New York and Los Angeles and strong ties to Armenia, were charged with a range of offenses, including the operation of more than 100 medical clinics located in 25 states that submitted over $100 million in false claims to Medicare (FBI, “Manhattan U.S. Attorney Charges 44,” 2010). In 2012, two leaders of Armenian Power, a gang that works closely with powerful crime figures in Russia and Armenia, were convicted of participating in a racketeering conspiracy that targeted elderly bank customers for extortion, bank fraud, and identity theft. The group also ran a sophisticated credit and debit card skimming scheme that stole account numbers and personal identification numbers (PINs) from thousands of people across Southern California. Today, internet fraudsters and identity thieves can find victims in wealthy countries while safely ensconced in nations on the other side of the world with little power or will to stop them (UNODC, “The Globalization Of Crime,” 2010, p. 131). Hence, they and their minions are able to bilk Americans with unprecedented anonymity and impunity. While this impacts individual victims most immediately, it ultimately drives up costs and magnifies inconveniences for all Americans as institutions work to redress and prevent systemic compromises.

preeminent paradigm. As the economic and geopolitical affairs of nationstates have globalized, so too have organized crime groups. They have become extremely aggressive, diverse and versatile in exploiting differences between nations, and, as a result, are flourishing in the current regulation vacuum. Street corner shakedowns and policy rackets are increasingly giving way to complex cyber frauds and offshore gambling. Bandits still aggregate to generate the continuity, synergies, and insulation characteristic of such criminal associations, but their networks are global and the mounting level of their sophistication is staggering. More than ever before, we are faced with collections of highly adaptable crooks that expand and contract over time to maximize their profits as discrete opportunities arise across the globe. These transnational organized crime groups are pilfering billions of dollars from the American economy alone. Their huge profits from supplying illicit goods to the world’s wealthy markets make them particularly challenging for state enforcement agencies, and no single nation can quell the threat they present. Transnational organized crime, with its dire implications for public safety, public health, democratic institutions, and economic stability, accelerates many of the most serious threats to national and international security in our brave new world and consequently poses a significant and growing threat to global stability.

Concluding Observations The typical American organized crime model, where outlaws with a shared ethnicity in a given area coalesce to prey upon members of their own communities independent of other groups, is no longer the The Norwich Review of International and Transnational Crime, 2015 Edition

7

References 22 U.S.C. § 7101 (2000). Victims of Trafficking and Violence Protection Act. Clapper, James R. (2014). Statement for the Record: US Intelligence Community Worldwide Threat Assessment of the US Intelligence Community. Clinton, Hillary Rodham (2009, March 26). Interview by Greta Van Susteren in Monterrey, Mexico. Retrieved from http://www.state.gov/secretary/ 20092013clinton/rm/2009a/03/121187.htm Cole, James (2012, March 1). Deputy Attorney General James Cole Speaks at High Level Hemispheric Meeting Against Transnational Organized Crime, available at 2012 WL 9246465. Federal Bureau of Investigation (2010, Oct 13). Manhattan U.S. Attorney Charges 44 Members and Associates of an Armenian-American Organized Crime Enterprise with $100 Million Medicare Fraud. Retrieved from https://www.fbi.gov/newyork/press-releases/2010/ nyfo101310.htm. Federal Bureau of Investigation (2015). Organized Crime: African Criminal Enterprises. Retrieved from https://www.fbi.gov/about-us/investigate/ organizedcrime/african Federal Bureau of Investigation, (2015). Organized Crime: Overview. Retrieved from http://www.fbi.gov/about-us/investigate/organizedcrime/ overview Kerry, John (1997). The New War: The Web of Crime That Threatens America's Security. Ohr, Bruce G., (2001, Dec). Effective Methods to Combat Transnational Organized Crime in Criminal Justice Processes, Resource Material Series (116th Int’l Training Course Visiting Experts’ Papers, Tokyo, Japan). Rotman Edgardo (2000). The Globalization of Criminal Violence, 10 Cornell J.L. & Pub. Pol’y. United Nations High-Level Panel on Threats, Challenges and Change (2004, Dec 2). A More Secure World: Our Shared Responsibility, 59th Sess., para. 165; U.N. Doc A/59/565. Retrieved from http://www.unrol.org/files/gaA.59.565_En.pdf. United Nations Office on Drugs & Crime (UNODC) (2010). The Globalization of Crime: A Transnational Organized Crime Threat Assessment, U.N. Sales No. E.10.IV.6 (2010). United Nations Office on Drugs & Crime (UNODC) (2012, Sep.). Transnational Organized Crime in Central America and the Caribbean: A Threat Assessment. U.S. Department of Justice (2010, June 30). Five Brothers Charged in Human Trafficking Scheme That Smuggled Young Ukrainian Migrants. Retrieved from http://www.justice.gov/opa/pr/five-brothers-charged-human-trafficking-scheme-smuggled-young-ukrainian-migrants. U.S. Department of Justice, (2011, Nov. 2). International Arms Dealer Viktor Bout Convicted in New York of Terrorism Crimes. Retrieved from http://www.justice.gov/opa/pr/international-arms-dealer-viktor-bout-convicted-new-york-terrorism-crimes. U.S. Department of State (2014). Trafficking in Persons Report. U.S. Department of State, Bureau for International Narcotics & Law Enforcement Affairs (2014, Mar.). International Narcotics Control Strategy Report Volume II: Money Laundering and Financial Crimes. Retrieved from http://www.state.gov/documents/organization/222880.pdf U.S. National Security Staff (2011). Strategy to Combat Transnational Organized Crime: Addressing Converging Threats to National Security.


8

About the Author

Melvin L. Otey received his formal education from St. Louis University (BS in business administration, 1997), Howard University School of Law (JD, 2000), and Amridge University (BS, 2008; MDiv, 2014). After graduating from Howard Law, he served as a Trial Attorney in DOJ's Organized Crime & Gang Section (2000-2003) and Organized Crime & Gang Section (2007-2014). In addition to litigating racketeering, white collar crime and gang cases, he served in the Review and Policy Unit, the DOJ unit responsible for reviewing all Racketeer Influenced and Corrupt Organizations (RICO) and Violent Crimes in Aid of Racketeering (VICAR) prosecutions nationwide. Otey personally reviewed complex organized crime, public corruption and racketeering prosecutions, contributed to the Criminal RICO and Civil RICO manuals for prosecutors, and taught courses at the National Advocacy Center. He currently serves as an Associate Professor of Law at Faulkner University’s Jones School of Law, where he teaches criminal law and criminal procedure courses, and is a Reviewing Editor for the Journal of Gang Research. His current research and scholarship interests include the RICO statute, gangs, international and transnational crime, the extraterritorial reach of U.S. laws, and police-community relations.


9

2

Supply and Demand: Drug Smuggling in 2015

Al Saibini

Al Saibini

Figure 2.1: US Government Assessment of Illicit Trafficking (University of Texas Library)

Smuggling is the movement of goods from one point to another in such a way as to avoid duties or taxes or to satisfy the demand for prohibited goods. It may involve otherwise legal commodities such as cigarettes or alcohol or contraband such as heroin or automatic weapons. Drug smuggling can be as small as a few ounces of marijuana sent through the mail to multi-hundred pounds of cocaine transported by aircraft and literally everything you can imagine in between.

Drugs are smuggled in a worldwide market via various conveyances, from container ships and commercial aircraft to commercial and passenger vehicles. Southwest and Southeast Asian heroin transits Russia or Iran to supply Europe. Colombian and Peruvian cocaine is shipped north via Mexico and the Caribbean to the United States and Canada and east via West Africa to Europe and the Middle East. Wherever demand exists, supply flows to satisfy it.


11


Figure 2.2: Global Flows of Heroin from Asian Points of Origin (UNODC World Drug Report 2010)

The United Nations Office on Drugs and Crime (UNODC) estimates current world heroin consumption at 340 tons per year and that heroin seizures represent an annual flow of 430-450 tons into the world heroin market. The vast bulk of that heroin originates in Afghanistan, Burma, and Laos. Afghan heroin transits Iran and the Russian Federation to Europe. Southwest and Southeast Asian heroin sometimes is trafficked to the United States via Africa.

In January, The Economist reported on the Afghanistan – Africa “Smack Track”, with maritime seizures up to 1 metric tonne reported from dhows in the Indian Ocean off the coast of Kenya, and notes that smuggling to the US via Africa began during the 1980s. When the author was assigned to the Drug Enforcement Administration (DEA) Detroit Field Division in the mid-1990s, Enforcement Group 1 dismantled a Nigerian-led trafficking organization body-carrying (“keestering”, to be precise) multi-pound


12

Al Saibini

Opium poppies are cultivated in the mountains along the Pacific coast of Mexico and processed into “black tar” heroin before being moved across the Southwest border or up the coast in small vessels. As with Afghanistan and other source and transshipment countries, notably Iran and Russia, some of the product is diverted to the local addict population.

Figure 2.3: Southwest Asian Heroin Trafficking Routes via Africa (The Economist 17 JAN 2015)

loads of heroin from Lagos, Nigeria to Detroit, Michigan. During the same period, traditional organized crime groups in the DetroitWindsor, Ontario area were importing SW Asian heroin concealed in shipments of Italian marble. Currently, most US heroin is sourced in Mexico or South America and trafficked into the US by Mexican drug trafficking organizations (DTOs), some of which control the traffic as vertical monopolies.

Heroin is smuggled across the border in a variety of ways. Large loads can be concealed within commercial cargo while smaller ones can be backpacked overland. The border fence, while formidable in some areas, is more porous in others. One novel means of smuggling small amounts of tar heroin in the past was to press it into beer bottle caps, scatter the caps on the floorboard of the car, and drive through the border crossing. Bearing in mind the volume of vehicle traffic through the major ports of entry, Customs and Border Protection (CBP) can’t possibly scrutinize every vehicle. The author was assigned to the DEA Las Cruces Resident Office in the early 90s. In those pre-NAFTA days, Customs inspectors at the ports in El Paso were expected to average two seconds per vehicle. In March 2015, almost 1.05 million passenger vehicles carrying 1.6 million passengers crossed the border in El Paso. Once inside the US, quantities of heroin are wholesaled to distributors and sub-distributors and moved to market through a variety of means, depending on the size of the shipment. Larger loads may be driven hidden in commercial cargo or in passenger vehicles with, or without, concealed compartments (“traps”). It may be flown via commercial aircraft in checked luggage, though checked luggage is subject to search if Transportation Security can’t


13


identify an object via x-ray, requiring concealment within the luggage. According to the DEA 2014 National Drug Threat Assessment (NDTA), the Mid-Atlantic, New England, Great Lakes, and New York/ New Jersey Organized Crime Drug Enforcement Task Force (OCDETF) regions reported heroin as the greatest threat, with high availability. US heroin seizures increased from just over 2500 kilograms in 2009 to over 4700 kilograms in 2013 with the average seizure increasing from 860 grams to 1.56 kilograms. Heroin seizures at the Southwest Border increased from 846 kilograms in 2009 to nearly 2200 kilograms in 2013. Seizure incidents increased in the same period from 295 to 580. (To put this in perspective, during the author’s tenure in Las Cruces from 1989 to 1992, the US Border Patrol Las Cruces Sector seized no heroin.) Heroin use, after declining during the 1970s and 1980s, has rebounded in the 2000s. Part of the reason for this is the increased abuse of prescription opioid analgesics, such as OxyContin. The abuse of opioid analgesics has resulted in more sophisticated prescription tracking, which makes doctor shopping more difficult. Addicts, facing obstacles to obtaining prescription narcotics, turn to more widely available and less expensive heroin. The decrease in cocaine consumption has caused producers in Colombia to divert agricultural resources from coca production to poppy. (Most of the heroin consumed in the Eastern US is South American, according to DEA, with Mexico primarily supplying the States west of the Mississippi.)

Illicit cocaine is exclusively produced in South America. Though coca was grown for pharmaceutical production in other places, most notably by the Dutch in Java and by Japan in Formosa (Taiwan), by the mid-twentieth century cultivation had returned to the indigenous areas of the eastern slopes of the Andes or the adjacent highlands. From the cultivation areas, coca leaf is transported to cocaine production “laboratories” (in reality, generally crude facilities located in the jungle where they are more easily concealed) where the cocaine alkaloid is extracted and converted to cocaine HCl. Finished cocaine is then pressed into kilogram bricks and wrapped for shipment. Cocaine production in Colombia is controlled by criminal groups, leftist militias (such as the Fuerzas Armadas Revolucionarias de Colombia, or FARC), and right-wing paramilitaries. Destination countries for smuggled cocaine are primarily the US and Western Europe. Cocaine is generally moved from the production

Figure 2.4: CIA Map of International Drug Smuggling 2009 The Norwich Review of International and Transnational Crime, 2015 Edition

14

Al Saibini

site to Colombia, where it is then transshipped to Mexico either by aircraft or vessel. It is sometimes smuggled across the border from Colombia to Venezuela, and then onward to the US. On 19 May 2015, the Wall Street Journal and the Miami Herald published stories detailing the involvement of Venezuelan politicians in the cocaine trade, effectively turning the country into a “narco-state.” Venezuela has denied this characterization, insisting that, since expelling the DEA in 2005 for allegedly spying, Venezuelan cocaine seizures have gone up 60 percent. While, historically, cocaine was smuggled on small vessels via the Caribbean to south Florida, enforcement pressure moved the traffic to Mexico and overland or maritime smuggling into California, Arizona, New Mexico, and Texas. Improved detection has resulted in novel smuggling methods, including “cocaine torpedoes” (cargo containers which can be towed below the surface), submarines (in at least one case surplus, in others purpose built), and the ubiquitous “go-fast” boat, originally open-ocean racing boats with the berth stuffed with cocaine; then open hulled 30-40 foot fiberglass-hulled “panga” vessels with two or more high-horsepower marine motors and full to the gunwales with Image 2.1: Panga Boat Found Off Refugio Beach CA cocaine, most January 2012 (Santa Barbara Independent)

commonly used along the Pacific coasts of Mexico and California. Latterly, Caribbean smugglers have returned to the use of openocean “Picuda” vessels, which are more difficult to detect, given their long, thin design and fib e r g l a s s h u l l s . I n c re a s e d enforcement pressure on air and land smuggling has caused a return to maritime routes through the eastern Caribbean, as illustrated by a firefight between Image 2.2: Unmanned Smuggling U S C u s t o m s a n d B o r d e r Submersible (“Cocaine Torpedo”) Seized Protection (CPB) and smugglers b y C o l o m b i a i n 2 0 0 8 ( N a t i o n a l Geographic) in British Virgin Islands waters on 17 May. This “water balloon effect” has been evident since the mid-1980s when enforcement initiatives in the Caribbean moved smuggling to Mexican land routes. Cocaine trafficking via Mexico is controlled by Mexican drug cartels. Mexican smugglers were originally employed by Colombian cocaine producers to move product over existing marijuana and heroin smuggling routes. The Mexican traffickers were savvy enough to take their payment in product and, ultimately, to control the traffic to its final destination. Cocaine is smuggled over the land border via commercial truck traffic, private vehicles (many times “trapped”), or backpacked across the unfenced or less-than-adequately fenced portions of the SW border. The author was once undercover with a smuggler in southern New Mexico who claimed to bring his


15


marijuana through the ports of entry in El Paso in trapped vehicles and to employ a “mule” to backpack cocaine in 25-kilogram loads over the Mexico/New Mexico border. Cocaine transported to Europe may be smuggled via commercial shipping containers or commercial aircraft, trapped merchant vessels (though this is less common that it was), or by one-way flights of surplus commercial aircraft across the Atlantic to West Africa where the aircraft are off-loaded and abandoned (sometimes torched), having been purchased for cash on the used aircraft market. The cocaine is subsequently transported to the Mediterranean coast across the Maghreb and transshipped to southern Europe for distribution. Since the late 2000s, the Sinaloa Cartel and other DTOs have been moving cocaine to Australia via Chile and distributing through Australian outlaw motorcycle gangs (OMGs) and other organized crime groups. According to the Australian Crime Commission, most cocaine smuggled into Australia arrives from Chile, with Canada second. The National Post reports that a kilo of cocaine sells in Australia for up to $250,000, approximately five times its value in Canada, already significantly higher than its US value. In 2012 and 2013, the Australian Federal Police made seizures of 200 kg and 750 kg, in cooperation with Tongan authorities, and 1650 kg in Vanuatu, in all cases concealed in private motor vessels. The 2014 NDTA reports a decline in cocaine consumption in the US, dating to 2006, as shown by various indicators, including number of emergency department admissions, percentage of drug testing positives, retail purity (which declined by 40 percent 2006 to 2013),

and Colombian production (which declined over 40 percent 2006 to 2013). It is possible that some of the cocaine user population has transitioned to methamphetamine. The author’s observation of the local drug market in Reno NV in the mid-1980s indicated that the relative popularity of cocaine and methamphetamine largely depended on the relative price in any given week. Historically, methamphetamine was produced by West Coast OMGs, using the phenyl-2-propanone (P2P)/methylamine synthesis. In the early 1990’s, Mexican trafficking groups began taking over the trade, manufacturing with ephedrine/red phosphorus/lithium, as P2P and methylamine became more tightly controlled, and substituting pseudoephedrine when ephedrine became difficult to obtain. With the current controls on over-the-counter (OTC) cold remedies, largescale methamphetamine manufacture has moved to Mexico, where precursors are easier to obtain and finished product is more easily smuggled into the US via existing heroin, cocaine, and marijuana smuggling routes than are bulk precursors. According to the 2014 NDTA, “Between calendar year (CY) 2012 and CY 2013, the amount of powder and crystal methamphetamine seized at the Southwest Border increased 18.5 percent. From CY 2009 to CY 2013, seizures at the border increased over 200 percent,” and seizures of 50 pounds or more are increasingly common. This is a far cry from the author’s experience in 1989-92, when the only methamphetamine seizure in the Las Cruces USBP sector was a boxed lab being transported from West Texas to Southern California. An increasing number of seizures from the Southwest, West, and Midwest regions are of “liquid methamphetamine” or methamphetamine in suspension.


16

Al Saibini

Figure 2.5: Methamphetamine Trafficking Routes (National Drug Intelligence Center (NDIC) 2014)

Methamphetamine dissolved in a solvent or other liquid is difficult to detect and has been found concealed in gas tanks, windshield washer reservoirs, liquor bottles, etc. Although seizure data from the National Seizure System indicates increased availability, results from the National Survey on Drug Use and Health indicate no corresponding increase in use, although local officials in some parts of the US (Minneapolis-St. Paul MN,

King County WA, Ohio, and San Diego CA among them) report increased use and/or overdose deaths. Marijuana smuggling continues to be a worldwide phenomenon. Even though modern hydroponic and indoor growing facilities allow for the production of high-THC strains close to the end-user, demand drives a global market in bulk crops produced in traditional source countries.


17


Figure 2.6: International Marijuana and Hashish Smuggling Routes (European Parliament www.europarl.europa.eu/topics/drugs/images/drmarhas.jpg)

Despite legalization/decriminalization measures in states such as Colorado and Washington, marijuana continues to be smuggled into the US from Mexico. The 2014 NDTA cites CBP seizures during the period 2010-2013 at 1.3 to 1.4 million kilograms per year. Seizures of Mexican marijuana are typically larger than seizures of domestically produced marijuana, though there was a period in 1991 when the typical seizure in the Las Cruces sector went from upwards of 100 pounds on average to less than ten pounds. (The traffickers the author and other special agents interviewed attributed the trend to the unwillingness of drivers to be caught with large quantities that resulted in long prison terms under the sentencing guidelines.)

Marijuana is sometimes smuggled from Mexico via tunnel, with at least 80 tunnels discovered since 2006 in California and Arizona, many times having rail and lighting systems. Eight tons was recovered linked to one sophisticated tunnel system in October 2013. Marijuana is also smuggled by shipping container or tractortrailer, or concealed in trapped passenger vehicles. Once inside the US, the marijuana is shipped from source cities, such as Houston, San Diego, or Los Angeles to other parts of the country. In 2009, the DEA Little Rock District Office and the Arkansas State Police intercepted a sophisticated trapped motor home containing several hundred pounds of marijuana. The load was also equipped with a GPS tracker placed by the smugglers to ensure that any deviation from the schedule or route would be


18

Al Saibini

evident. By back-tracing the online GPS log of the device, the DEA Office of Investigative Technology was able to determine the point of origin of the shipments, as well as the destination, since the motor home had made the trip previously. Canadian marijuana, notably, but not exclusively, “BC bud”, continues to be smuggled across the largely unmonitored USCanadian border into the US interior where it commands premium prices. At least one tunnel was discovered in northern Washington State during a DEA investigation, as well as helicopter smuggling operations into northern Washington and Idaho. The author also encountered a smuggling group during his time in the Seattle Field Division Intelligence Group kayaking loads of up to 50 pounds of marijuana from British Columbia to the San Juan Islands in Puget Sound. The kayaker would then board the ferry to Seattle, carrying the loaded kayak, and continue on to Portland OR via commercial bus. Not to be ignored is the continued smuggling of cocaine, methamphetamine, and other drugs from the US across the Canadian border, where they command much higher prices. A seizure of 15 kilograms of cocaine and nine kilograms of methamphetamine in Ferndale WA had a street value of $550,000 on the US side, but would have been worth over $1,000,000 had it reached its destination in British Columbia, 15 miles north. A smuggling group dismantled by US and Canadian authorities in 2011 smuggled Canadian marijuana south and used the proceeds to purchase cocaine in California to be trafficked back to British Columbia for delivery to the Hells Angels OMG.

Synthetic designer drugs, or new psychoactive substances, are frequently not under international control, due to their origins as chemical analogues of controlled substances. They are frequently manufactured in China and fall into the categories of synthetic cannabinoids and synthetic cathinones. DEA reports encountering more than 240 new synthetics since 2009, including 99 cannabinoids, 52 cathinones, and 89 other substances. They tend to be purchased over the Internet and shipped from Chinese distributors. Synthetic cannabinoids are marketed as “synthetic marijuana” and sold as “K2”, “spice”, or other branding and are admixtures of the cannabinoids and some sort of plant matter. Synthetic cathinones are commonly sold as “bath salts”. Many of these compounds have been restricted or controlled via emergency regulation, either by DEA or by various State boards of pharmacy. MDMA (3,4-methylenedioxy-methamphetamineis, also known as ecstasy), another synthetic with a history of abuse dating to the 1970s when the method of synthesis became public. By the late 1970s, there was a small recreational market and by 1980, production was controlled by “the Boston Group”, a small group of chemists in the Boston area. MDMA synthesis is complex and hazardous; consequently, relatively few MDMA labs have been seized in the US. Most MDMA is produced in Canada and, to a lesser extent, the Netherlands, then smuggled to the US. Organized crime groups, often Eastern European or Israeli in origin, generally control the traffic in MDMA. MDMA is shipped from ports of entry in


19


Figure 2.7: MDMA Transportation Routes (NDIC 2014)

Washington State, Michigan, New York, and Vermont to markets throughout the US. The author’s enforcement group in the New Orleans Division dismantled an MDMA trafficking ring moving multi-hundred tablet shipments to New Orleans from Miami. An Israeli organized crime group supplied the tablets, which originated in the Netherlands, and were smuggled into the US via the Port of New York. Like any other commodity, global and domestic traffic in drugs is driven by demand. Demand reduction would result in lower prices and consequently fewer producers. The substances highest in demand generate the greatest profit. Marijuana and its sub-products,

hashish, hashish oil, etc., remain the greatest source of illicit drug revenue, followed by cocaine, methamphetamine, heroin, and synthetics. The revenue stream from drug trafficking funds organized criminal groups and insurgencies, from the Taliban to the FARC, and exerts a corrosive effect on the rule of law from Afghanistan to Nigeria to Bolivia to Mexico. Counter-smuggling efforts are manpower-intensive and expensive. Consequently, they tend to be focused on the hot area of the day, squeezing the balloon and moving smuggling from one area to another.


20

About the Author

Al Saibini was a deputy sheriff at the Washoe County Sheriff’s Office from 1977 to 1989 and a Drug Enforcement Administration Special Agent and Supervisory Special Agent from 1989 to 2010. After retiring from DEA, he was an Embedded Law Enforcement Professional in Iraq and Afghanistan from 2010 to 2012, and the Senior Law Enforcement Advisor on the Commander, International Security Assistance Force (COMISAF) Advisory and Assistance Team at ISAF Headquarters in Kabul from 2012 to 2014.


21

3

LOSING TOOLS IN THE INTELLIGENCE TOOLBOX: PREDICTING FUTURE CHANGES TO FISA TO PROTECT FUTURE NATIONAL SECURITY PROSECUTIONS

Patrick Walsh

Patrick Walsh

I. Introduction National Security Professionals charged with protecting the country from harm must feel like an auto mechanic who can’t find his favorite wrench. Foreign intelligence surveillance tools that were once considered lawful and reliable ways to gather information are being rescinded by Congress, declared unlawful by the courts and restricted by the executive branch (U.S. Department of Justice, 1995). Any information gathered using these lost tools may not be admissible in a criminal case, even though the methods were considered lawful when the information was acquired (American Civil Liberties Union v. Clapper, 2015). How can those in the intelligence community determine which tools are at risk of being removed from the toolbox and which will be an enduring lawful means to build solid intelligence for the future? In an era of increasing scrutiny on the intelligence community and its tools, national security professionals must look beyond the statutory authorization for intelligence gathering and evaluate each intelligence tool for the likelihood that it will be revoked by the court, rescinded by Congress or restricted by the executive branch. This article will discuss an approach to scrutinize our current intelligence gathering tools and determine which ones are at risk to be removed by future executive, legislative or judicial action. To do this, one must analyze the historical struggle between the intelligence community’s need for broad powers to protect our nation from foreign enemies and our nation’s strong commitment to protect our civil liberties from government intrusion. Understanding the development of this debate, which led to the Foreign Intelligence Surveillance Act, will give context to how our nation has expanded, modified, restricted

and rescinded the various intelligence gathering tools to meet the nation’s national security goals. Intelligence professionals who know how we got to our current intelligence gathering tools will better be able to assess which tools may disappear. II. The Beginning of the Intelligence Toolbox Debate—Life Before FISA In the beginning, intelligence collection was conducted at the pleasure of the President without interference from the other branches of government (Zweibon v. Mitchell, 1975). President Franklin Delano Roosevelt is the first President known to rely on National Security wiretaps; he sanctioned telephone wiretaps for national security conducted without judicial warrants before and during World War II (Brownell, 1954). Successive presidents, following Roosevelt’s lead, expanded the use of these warrantless wiretaps to obtain national security and foreign intelligence information (U.S. Senate, 1976). There were far fewer wiretaps approved and there was little concern or controversy from the legislative or judicial branches of government during the 1940s, 50s and early 60s. But that changed in the late 1960s when intelligence wiretaps were being used as evidence in criminal trials (Katz v. United States, 1967). The courts were the first to act to curb the use of national security wiretaps. In 1967, the United States Supreme Court reversed forty years of precedence and held that criminal telephone wiretaps were “searches” and unlawful without a search warrant (Katz v. United States, 1967). In Katz v. United States the Court determined that the Federal Bureau of Investigation violated the Fourth Amendment


23

Losing Tools in the Intelligence Toolbox

when they obtained a telephone wiretap without first seeking a judicially authorized warrant (Katz v. United States, 1967). Katz left a ray of hope for national security cases (Katz v. United States, 1967). Katz was a criminal case with no national security or intelligence nexus, and the Court left open the possibility that agents can conduct national security and foreign intelligence searches without obtaining a search warrant (Katz v. United States, 1967). The Court invited Congress to create a legislative framework for the application and approval of criminal wiretaps (Katz v. United States, 1967). So law enforcement who sought to turn information gathered from intelligence tools into evidence at a criminal trial were left unsure whether their national security wiretaps obtained without a search warrant were lawful. Congress enacted a broad framework for criminal wiretaps in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (commonly referred to now as “Title III”) (Title III, 1968). But Title III addressed only criminal wiretaps and left open the possibility that intelligence searches may be permitted without a need for a Title III judicially authorized warrant (Title III, 1968). In vague language Congress suggested that the President may have constitutional power to authorize intelligence searches without seeking judicial approval for cases involving national security (Title III, 1968). Congress stated that Title III was not intended to “limit the constitutional power of the President . . . to protect the Nation against actual or potential attack,” or “to obtain foreign intelligence information” or “to protect the United States against any clear and

p re s e n t d a n g e r t o t h e s t r u c t u re o r e x i s t e n c e o f t h e Government” (Title III, 1968). But this language could also be read much more narrowly to suggest that Congress did not agree that the President had such authority but was not trying to resolve that issue in this legislation (Atkinson, 2013). The executive branch took the former, more expansive view, and continued to conduct national security wiretaps without judicial oversight or approval (Atkinson, 2013). The issue returned to the courts four years later, with a case involving the bombing of a Central Intelligence Agency Office in Ann Arbor, Michigan (United States v. U.S. District Court, 1972). In United States v. United States District Court (now called the Keith case), the Supreme Court found that a warrantless national security wiretap conducted inside the United States violated the Fourth Amendment (United States v. U.S. District Court, 1972). The fact that it was labeled a “national security case” did not make the warrantless surveillance lawful (United States v. U.S. District Court, 1972). Once again, the Supreme Court left some doubt as to the scope of its decision to require warrants in national security cases (United States v. U.S. District Court, 1972). The Court clearly held that search warrants are required for domestic national security cases (United States v. U.S. District Court, 1972). But the Court left open the possibility that warrantless wiretaps for national security cases outside the United States may be lawful (United States v. U.S. District Court, 1972). The Court did not decide that issue, it left it for resolution in a future case (United States v. U.S. District Court, 1972).


24

Patrick Walsh

Keith marked the beginning of increased concern and growing restrictions on the ability of intelligence professions to collect and share national security information. But the executive branch did not heed the concerns expressed in Keith, and continued to gather intelligence information (or more precisely, information claimed to be for intelligence) without obtaining a search warrant (U.S. Dep't of Justice, 1973). But Congress was beginning to take notice of the executive action and began to view the efforts to gather intelligence as overreaching and abusive (O'Connor & Rumann, 2003). So Congress acted to investigate and eventually curb these perceived executive branch misuse of intelligence tools (U.S. Senate, 1976). III. The Foreign Intelligence Surveillance Act—the Building of a Wall The Watergate scandal brought the concern of misuse of the intelligence apparatus by the executive branch to the forefront of the national consciousness. The United States Senate responded by setting up the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, more commonly known as the Church Committee (U.S. Senate, 1976). The Church Committee conducted many public hearings and published a detailed report citing numerous abuses of the executive branch, including cloaking warrantless surveillance of political dissidents and opponents under the guise of “national security” (Lee, 2006). These misdeeds extended to the military, the Federal Bureau of Investigation and occurred in both the Nixon administration and previous administrations (Lee, 2006). Congress decided to create a comprehensive statutory framework requiring the executive branch to regulate intelligence collection within the United States (50 U.S.C. § 1801, 1978).

Congress passed the Foreign Intelligence Surveillance Act of 1978 (FISA) in part as a response to government abuses of wiretaps and in part as an answer to the invitation of the Keith court to address the issue of national security wiretaps (Banks, 2007). Congress created in FISA a comprehensive statutory framework for the executive branch to obtain judicially sanctioned wiretaps to gather foreign intelligence and provide for national security (50 U.S.C. § 1801, 1978). Congress clearly declared its view that wiretaps for intelligence purposes required judicial authorization through the newly created Foreign Intelligence Surveillance Court (FISC) (50 U.S.C. § 1801, 1978). After Katz, Title III, Keith and FISA, there were clearly defined limits on the ability of the intelligence community to gather intelligence information, particularly domestic intelligence information (Katz v. United States, 1967). But concerns of abuse were still prevalent, and a push began to restrict not just the ability to obtain intelligence information, but also to restrict the ability to share the information once it is collected by the government. These restrictions were designed to limit the sharing of intelligence information with law enforcement personnel. IV. How FISA Worked and How it Restricted Sharing The FISA created an alternate path for the government to obtain wiretaps and search warrants in foreign intelligence cases (50 U.S.C. § 1801, 1978). For intelligence professionals, FISA had advantages over Title III criminal wiretaps; the court was conducted in a classified setting, interceptions could last for a longer duration and the monitoring procedures were more advantageous to the government (50 U.S.C. §§ 1801(h) and 1802(a)). These advantages raised the concern that the executive branch would use the FISA as a way to circumvent the criminal court process in cases not involving


25


foreign intelligence. Therefore, Congress wrote into the statute protections to ensure the FISA would be used only for the purpose of gathering foreign intelligence (50 U.S.C. § 1804(a)(7)(B)). The statute required that “the purpose” of a surveillance was to obtain “foreign intelligence information” (Kris & Wilson, 2012, §10.3). But this language was subject to more than one interpretation (U.S. v. Truong Dinh Hung, 1980). What if the government wanted to obtain foreign intelligence information but also wanted to investigate a crime? The courts were left to resolve the meaning of the “the purpose” of the surveillance was to gather foreign intelligence (Kris & Wilson, 2012, §10.3). Federal courts took a very restrictive view of “the purpose” of FISA (In re Sealed Case, 2002). Every court to review the issue determined that “purpose” really meant “the primary purpose” (In re Sealed Case, 2002). Put another way, the national security professionals seeking Foreign Intelligence Surveillance Court permission to wiretap an individual’s phone must establish that the primary purpose of the investigation is to gather foreign intelligence (U.S. v. Johnson, 1991). The primary purpose test still left theoretical room for law enforcement in intelligence investigations. As long as foreign intelligence gathering was the primary purpose, there could potentially be secondary purposes. One of those secondary purposes could be law enforcement. But involving law enforcement in the investigation created risk; a reviewing court might disagree and decide—after the fact—the primary purpose was really law enforcement and not foreign intelligence (In re Sealed Case, 2002).

Alternatively, a reviewing court may agree that the primary purpose was initially to gather foreign intelligence, but during the course of the investigation the primary purpose switched to a law enforcement purpose (In re Sealed Case, 2002). This can happen when investigators begin to determine that prosecution is warranted and continue to use FISA approved surveillance while developing a criminal case. Federal courts assumed that the sharing of FISA derived information after the investigation ended was permissible (In re Sealed Case, 2002). But a cautious executive branch, perhaps chastened by the past abuses, placed additional policy restrictions on the sharing of intelligence information (U.S. Department of Justice, 1995). C. The Department of Justice and Its Restrictions On Access to the Intelligence Toolbox The Department of Justice attorneys created policy restrictions on the sharing of intelligence information with law enforcement as a way to manage the uncertainty of the after the fact judicial review of the “primary purpose” of the investigation (U.S. Senate, 1984). After reviewing the judicial opinions mentioned above and the approving statements of the Congressional committees that oversee FISA cases, the Department of Justice decided to add additional regulations to ensure that all intelligence investigations complied with the primary purpose test (U.S. Senate, 1984). These procedures— and their implementation—made it nearly impossible to share intelligence information with law enforcement officials (Kean & Hamilton, 2004).


26

Patrick Walsh

The procedures were intended to separate the counterintelligence investigation from criminal investigations and to prevent any appearance that the intelligence tools were being used solely to further a criminal investigation (U.S. Department of Justice, 1995). These restrictions created what one court later called a ‘wall’ to prevent the FBI intelligence officials from communicating with the Criminal Division regarding intelligence investigations (In re Sealed Case, 2002). These restrictions that limited sharing intelligence information with law enforcement were in effect on September 11, 2001, and may have contributed to the failure to identify and stop the September 11 attacks (Kean & Hamilton, 2004). After the September 11, 2001 attacks, Congress amended FISA to eliminate the restrictions imposed by the judicial and executive branches, and began to expand the tools available to the intelligence community to address the threat of terrorism (122 Stat. 2463, 2473, 2008). V. The Country’s About-Face: Opening the FISA Toolbox to Everyone After the attacks of September 11, 2001, the executive and legislative branches realized that the restrictions placed on the intelligence tools from 1968 to 2001 created a system ill-fitted to protect the nation from the current threats (Kean & Hamilton, 2004). Both Congress and the President took actions to remove these long standing restrictions and create new and broader tools to aid in the collection of intelligence, the sharing of it with law enforcement and the protection of the nation from these threats (50 U.S.C. § 1804(a) (6)(B) (2006)). Some of these changes involved the FISA (122 Stat. 2463, 2473).

Congress dealt with the wall that was erected around the primary purpose requirement in FISA. Congress changed “the purpose” to a “significant purpose” with the intention of destroying this wall and encouraging information sharing between intelligence and law enforcement (50 U.S.C. § 1804(a)(6)(B) (2006)). Under the revised law, FISA tools could be used even if there was a law enforcement purpose to the investigation (122 Stat. 2463, 2473). The intelligence community was now strongly encouraged to share relevant information with law enforcement. Further efforts were undertaken to increase the gathering of foreign intelligence. From President Bush’s warrantless Terrorist Surveillance Program to the FISA Amendments Act of 2008, restrictions on intelligence gathering were eased to permit widespread collecting and sharing of information (Public Declaration of James R. Clapper, 2007). Faced with the external threats from terrorist organizations, Congress, the executive branch and the courts found a common purpose in approving greater communication between the intelligence and law enforcement communities (Public Declaration of James R. Clapper, 2007). But many of these expansions were approved or conducted in secret or without significant public discussion. As these programs became public, the public raised concerns about the expansive and intrusive intelligence tools given to law enforcement. These concerns mirrored those raised forty years before. VI. Rising Concerns of Misuse of the Intelligence Toolbox Changes to FISA were debated and enacted in public, but other tools were passed in secret either by executive action or through expansive interpretations of FISA made in classified setting by the


27


Foreign Intelligence Surveillance Court (Risen & Lichblau, 2005). These secret intelligence tools were subsequently disclosed to the world either through leaks of classified information or through declassification by the executive branch. It is the reaction to these intelligence tools that is causing the greatest debate and calls for restrictions on intelligence gathering today. On October 4, 2001, President George W. Bush secretly authorized the Terrorist Surveillance Program, permitting the National Security Agency (NSA) to wiretap communications from members of Al Qaeda to individuals within the United States (Risen & Lichblau, 2005). The President later claimed that he had executive authority, based in the Constitution itself, to conduct this action (U.S. Department of Justice, 2006). These wiretaps were conducted outside of the FISA process and without any judicial oversight or approval (U.S. Department of Justice, 2006). Once these programs were disclosed to the public, there was significant outcry over these warrantless wiretaps (Risen & Lichblau, 2005). Many argued these wiretaps were illegal and in violation of FISA or other federal law (Risen & Lichblau, 2005). One federal district court agreed, determining that the program violated the Constitution because it permitted searches without judicially authorized warrants (ACLU v. NSA, 2006). Instead of appealing the decision, the executive branch sought Congressional approval for the program. Congress eventually agreed to a modified version of the program and passed the FISA Amendment Act of 2008 (F.A.A.). But the legislative solution in response to the Terrorist Surveillance Program’s warrantless wiretaps had its own concerns, because it

legislated an avenue for the government to obtain wiretaps without a judicially authorized search warrant (122 Stat. 2463, 2473). Section 702 of the F.A.A. permits the executive branch to conduct warrantless wiretaps of foreign persons outside the United States to gather foreign intelligence (50 U.S.C. § 1881a(a) (2008)). While the FISC is involved, it does not approve individual surveillance, it merely approves the targeting and minimization procedures used generally by the intelligence community (50 U.S.C. § 1881a(a) (2008)). The FISC does not approve any individual interception, nor does it determine that there is probable cause that the interception will gather foreign intelligence information (50 U.S.C. § 1881a(a) (2008)). Since the inception of Section 702 interceptions, there have been numerous mistakes, misuse and abuses of the program (Feinstein, 2012). Individual intelligence analysts have made improper queries without permission, have queried Section 702 databases accidentally, and have queried Section 702 databases for U.S. persons when they should have only queried foreign nationals (Director of National Intelligence, 2013). There have also been systematic errors, where the collection system collects too much information because of technical errors that cannot be fixed (Director of National Intelligence, 2013). In short, the government has conceded that its collection process is flawed and a certain portion of its interceptions will be wholly domestic communications (50 U.S.C. § 1881a(a)). In other words, the program cannot be conducted without a small portion of its activity being outside of its permissible interception. So far, no court has ruled the Section 702 program is per se unlawful because of this problem, but this issue is just beginning to be reviewed in federal courts.


28

Patrick Walsh

The Terrorist Surveillance Program and the enactment of Section 702 were not the only instances of warrantless collection of information. The disclosure of classified surveillance programs by Edward Snowden created significant public outcry (Greenwald, 2013). Although the programs disclosed by Snowden dealt with the interception of “metadata” and not the content of communications, the collection of vast amounts of information on ordinary Americans caused a national uproar (Greenwald, 2013). This program— approved by the FISC based on an expansive reading of a section of FISA relating to the search of business records—permitted the government to collect limited information on all Americans (a bulk collection), on the condition that it could not be searched unless the government had specific suspicion that it was connected to foreign intelligence (50 U.S.C. § 1861). The program leaked by Snowden was approved by the FISC but it nonetheless raised concerns similar to those found during the Church Committee 45 years earlier (Piette & Radack, 2006). The public concern was that current oversight of the government’s use of intelligence tools was insufficient to protect the liberties of everyday Americans (Greenwald, 2013). Public perception once again shifted to the belief that these intelligence tools were being misused to spy domestically on Americans with little connection to national security (Ball & Ackerman, 2013). The courts eventually weighed in, and the Second Circuit Court of Appeals has ruled that this bulk collection program is inconsistent with the statutory language of FISA, and thus, is unlawful (ACLU v. Clapper, 2015). Any information gathered from the bulk collection program is now likely inadmissible in a criminal prosecution as the fruit of an illegal search (50 U.S.C. 1806(e)).

Congress has responded to these concerns and eliminated the government’s bulk collection of limited information on Americans but has transferred this collection to private companies, who are required to retain information they collect and have it available for search (Kelly, 2015). Only time will tell if this revision meets with the Court’s interpretation of the statute and the Fourth Amendment to the Constitution, and if Congress and the Executive will remain satisfied that this revised provision achieves the appropriate balance between civil liberty and national security. VI. Planning for Change: What Intelligence Tools Are at Risk Today The debate over the Snowden-leaked program of bulk collection of information on Americans highlights the concern that national security professionals must face: how do they turn intelligence information into criminal evidence when they cannot be certain that current intelligence tools will be lawful at the time of trial? This program was a statutory based (FISA Section 215) tool that had permission from multiple courts before it was ultimately ruled unlawful (In re Application of the FBI for an Order Requiring the Prod. of Tangible Things From [Redacted], 2015). If national security professionals cannot rely on judicial interpretations of statutory law to build cases, how can they continue to use the federal courts as a reliable solution to responding to current and future national security threats? The answer involves risk analysis, something that is at the heart of intelligence analysis. But in today’s changing legal climate, national security professionals must conduct a risk analysis not only of the threats to the nation, but also analyze the risks that intelligence tools


29


will become unavailable in the future. A careful review of the past and present controversies around intelligence collection demonstrate there are three factors that national security professionals can use to evaluate the risk of losing intelligence tools information gathered from them. These factors are: (1) whether knowledge of the tool is public or secret, (2) whether courts have issued approval of the use of the tool and (3) whether the intelligence tool resembles criminal tools that courts are comfortable with. Classified sources and methods will eventually be made public— through leaks, declassification or other means (Kravets, 2013). National security professionals must accept this as fact. Each time one of the classified intelligence tools mentioned above was made public, there were negative consequences for the intelligence tool and the information gained from it (Donahue, 2013). The Terrorist Surveillance Program was leaked to the media and admitted to by the President (Risen & Lichblau, 2005). Subsequently, a district judge found the program to be unlawful (ACLU v. NSA, 2006). The Section 215 bulk data collection program was leaked by Edward Snowden—and a federal appellate court found it was unlawful (ACLU v. Clapper, 2015). The lesson from this is that programs that are entirely secret carry increased risk that upon disclosure they may be determined to be unlawful. Many intelligence tools are well known, even though their use in a particular case is classified (50 U.S. C. §§ 1801-1805, 1861). Traditional FISA warrants are a perfect example (50 U.S. C. §§ 1801-1805). The program, the process to obtain them and their use are recognized and accepted by the Congress and the courts.

These public intelligence tools carry less risk that they will be unavailable in the future. Intelligence tools that require court approval carry less risk than those done without judicial oversight. The more input a judicial officer had in approving the collection of information, the more likely a subsequent judge will permit the introduction of that information as evidence in court. The gathering of information under Executive Order 12333 and FISA Section 702 are examples of programs that have less judicial oversight (Executive Order 12,333). This lack of judicial input during collection creates risk that a court overseeing the admission of that evidence in a criminal case will determine it is inadmissible. Programs that involve judicial officers in the process and obtain judicially sanctioned collection efforts are far more likely to be sustained in the future. The Section 215 bulk collection program may seem like an exception to this point, but it actually proves the point (50 U.S.C. § 1861). The program was ruled to violate the statute, not comply with it (ACLU v. Clapper, 2015). The bulk collection program is an example of an intelligence tool that has risk of being lost because it was conducted in secret and without any corollary to a traditional criminal program (ACLU v. Clapper, 2015). There is significantly less risk when using intelligence tools that have similarities to ordinary criminal investigative tools. When attempting to turn intelligence information into criminal evidence it helps to be working with an intelligence tool that has similar procedures to traditional criminal tools. Again, traditional FISA wiretaps are a good example. FISA wiretaps require an application to a judge, with a sworn affidavit, where a judge finds probable cause and issues a


30

Patrick Walsh

limited warrant (50 U.S. C. § 1805). While the specific procedures and findings differ from a criminal Title III warrant, the similarities between the intelligence tool and the criminal tool make it more palpable to courts and juries to accept the evidence (Federal Rule of Criminal Procedure 41, 2015). Using tools that have no corollary in the criminal system raises concerns that the information was obtained without following the normal checks on government conduct. Courts are more likely to question the tool’s legality if it was not involved in the process to use the tool.

requirement and also endure the current increased scrutiny so the information gathered is useful in the future. Doing so will ensure that tools being used to collect intelligence today will be able to be used to construct evidence for the criminal trial next year.

VII. Conclusion Our nation has only begun to evaluate what changes to make to the intelligence tools available in our national security toolbox. United States history demonstrates that Congress, the courts and the executive branch will constantly struggle with the balance of giving national security professionals the tools needed to protect the nation from threats and giving our citizens the protections needed to secure their civil liberties. Intelligence professionals need to carefully examine the current use of intelligence tools because the tools and their use will change. Some intelligence tools will be modified and restricted. Others will be removed by executive, legislative or judicial action. Those charged with turning intelligence into evidence in criminal cases must be especially wary. The intelligence tools used today may be determined to be unlawful tomorrow. Any evidence gathered using those tools may not be admissible when the national security case comes to trial. But a cautious national security professional can carefully decide which of the currently available intelligence tools is likely to both meet the current collection The Norwich Review of International and Transnational Crime, 2015 Edition

31

References 50 U.S.C. § 1801 (1978). Foreign Intelligence Surveillance Act. 50 U.S.C. § 1804(a)(6)(B) (2006). USA Patriot Act of 2001. 50 U.S.C. § 1881a(a) (2008). FISA Amendments Act of 2008. 82 Stat. 197 (1968). Title III, Omnibus Crime Control Act. 122 Stat. 2463, 2473 (2008). FISA Amendments Act of 2008. ACLU v. NSA, 438 F.Supp.2d 754 (E.D. Mich. 2006). ACLU v. Clapper, 785 F.3d 787 (2nd Cir. 2015). Atkinson, L. (2013). The Fourth Amendment’s National Security Exception: Its History and Limits. 66 Vand. L. Rev. 1343, 1380. Ball, J., & Ackerman, S. (2013, August 9). NSA loophole allows warrantless search for US citizens' emails and phone calls. The Guardian. Retrieved from http://www.theguardian.com/world/ 2013/ aug/09/nsa-loophole-warrantless-searches-email-calls Banks, W. (2007). The Death of FISA. 91 Minn. L. Rev, 1209, 1211, 1226-27. Brownell, H. (1954). The Public Security and Wire Tapping. Cornell L. Q., 39, 195, 197-98. Director of National Intelligence. (2013, August). Semiannual Assessment of Compliance With Procedures and Guidelines Issues Pursuant to Section 702 of the Foreign Intelligence Surveillance Act, August 2013 (p. 33). Washington. Retrieved from http://1.usa.gov/1FRozan Donahue, L. (2013, June 21).NSA surveillance may be legal—but it’s unconstitutional. Washington Post. Retrieved from:http://wapo.st/1Fs7ROi Executive Order 12,333. Federal Rule of Criminal Procedure 41 (2015). Feinstein, D. (2012). Statement of Dianne Feinstein Dec. 28, 2012. 158 Cong. Rec. S8457 Washington. Greenwald, G. (2013, June 9). Edward Snowden: The Whistleblower Behind the NSA Surveillance Revelations. The Guardian. Retrieved from: http://www.theguardian.com/world/2013 /jun/09/edward-snowden-nsa-whistleblower-surveillance In re Application of the FBI for an Order Requiring the Prod. of Tangible Things From [Redacted], No. BR 15–24 (Foreign Intel. Surv. Court, Feb. 26, 2015). In re Sealed Case, 310 F.3d 717 (Foreign Intel. Surv. Ct. Rev. 2002). Jewel v. NSA, No. 08-cv-04373 (N.D. Cal.). (2007). Public Declaration of James R. Clapper, Director of National Intelligence, 6. Katz v. United States, 389 U.S. 347 (U.S. Supreme Court 1967). Kean, T., & Hamilton, L. (2004). The 9/11 Commission Report. [Washington, DC]: [National Commission on Terrorist Attacks upon the United States]. The Norwich Review of International and Transnational Crime, 2015 Edition

32

Kelly, E. (2015, June 2). Senate Approves USA Freedom Act. USA Today. Retrieved from http://www.usatoday.com/story/news/politics/ 2015/06/02/patriot-act-usa-freedom-act-senate-vote/28345747/ Kravets, D. (2013, August). Declassified Documents Prove NSA is Tapping the Internet. Wired Magazine. Retrieved from http://www.wired.com/ 2013/08/nsa-tapping-internet/ Kris, D., & Wilson, J. (2012). National Security Investigations & Prosecutions 2d. [Eagan, Minn.]: West. Lee, E. (2006). The Legality of the NSA Wiretapping Program. 12 Tex. J.C.L. & C.R., 1, 39. O'Connor, M., & Rumann, C. (2003). Going, Going, Gone: Sealing the Fate of the Fourth Amendment. 26 Fordham Int’l L.J., 1234, 1255. Piette, D., & Radack, J. (2006). Piercing the “Historical Mists”: The People and Events Behind the Passage of FISA and the Creation of the “Wall". 17 Stan. L. & Pol’y Rev., 437, 448. Risen, J., & Lichblau, E. (2005, December 16). Bush Lets U.S. Spy on Callers Without Courts. New York Times, p. A1. U.S. Department of Justice, (1995). Memorandum from Jamie S. Gorelick, Deputy Attorney General to Mary Jo White, U.S. Attorney. Washington, D.C. U.S. Department of Justice,. (2006). Legal Authorities Supporting the Activities of the National Security Agency Described by the President (pp. 5, 17). Washington. Retrieved from http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf. U.S. Department of Justice, (1973). Press Release. 14 Crim. L. Rep. 2042. U.S. Senate, (1976). Memorandum from Attorney Gen. Herbert Brownell for J. Edgar Hoover, Dir. FBI 1 (May20, 1954); Memorandum from Attorney Gen. Nicholas Katzenbach for J. Edgar Hoover, Dir., FBI (Sept. 27, 1965), quoted in Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, Supplementary Detailed Staff Reports of Intelligence Activities and the Rights of Americans, Book III, S. Rep. No. 94-755 (p. 287). Washington: U.S. Senate. U.S. Senate. (1976). Select Comm. To Study Governmental Operations With Respect To Intelligence Activities, Supplementary Detailed Staff Reports On Intelligence Activities and the Rights of Americans (p. 3-4). Washington. U.S. Senate. (1984). Report of the Select Committee on Intelligence, United States Senate, The Foreign Intelligence Surveillance Act of 1978: The First Five Years (p. 15). Washington. U.S. v. Johnson, 952 F.2d 565 (1st Cir. 1991). U.S. v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980). United States v. U.S. District Court, 407 U.S. 297 (U.S. Supreme Court 1972).Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975)

About the Author


33

About the Author

Major Patrick Walsh is an Associate Professor in the International and Operational Law Department of the U.S. Army Judge Advocate General’s Legal Center and School. Major Walsh is a military reservist currently serving on active duty. He deployed to Iraq in 2008 and served as a judge advocate advising commanders on international and operational law matters. As a civilian, Mr. Walsh is an Assistant U.S. Attorney in the District of Nevada, where he served as the lead national security and terrorism prosecutor for the district. He has also taught as an adjunct professor at the University of Nevada at Las Vegas, Boyd School of Law. Major Walsh received his undergraduate degree from Loyola Marymount University, his law degree from the University of California at Berkeley, Boalt Hall School of Law and his L.L.M. in Military Law with an emphasis in International and Operation Law from the U.S. Army’s Judge Advocate General’s Legal Center and School. He teaches courses on Terrorism and the Law, National Security Law, the Domestic Operations of the Military and Reserve Component Affairs.


34

4 The Intersection of Wildlife Trafficking and Insurgencies in Africa Jerome M. Conley

Jerome M. Conley

The significance of wildlife trafficking as a risk to U.S. and international security increases on a daily basis. No longer just an issue of concern primarily to environmentalist and conservation organizations, the rapid growth of global networks in illicit wildlife goods is emerging as an important and sustaining source of funding for insurgent and terrorist organizations in Africa, Asia, and elsewhere. Enabling the expansion of war chests for groups such as The Lord’s Resistance Army (LRA) under Joseph Kony; Janjaweed in Sudan; RENAMO in Mozambique; and potentially Al-Shabaab in Somalia and Boko Haram in Nigeria; the killing of elephants and rhinos, especially, for their ivory and horns is providing a low risk, high profit solution for these cash-strapped insurgent organizations which are in need of weapons, food, communication equipment, and other supplies. Though not a new phenomenon, this intersection of insurgent and terrorist networks with illicit trade in wildlife products appears to have escalated over the past decade and can only be mitigated through joint action and cooperation between conservation, judicial, law enforcement, intelligence, philanthropic, and other stakeholder organizations around the world which typically do not partner together. Quantifying and qualifying the extent of this overlap between insurgent and wildlife trafficking networks remains challenging in the nearterm, however, due to limited open source information as well as conflicting motivations for those organizations highlighting these potential links. What It Is and Why It Matters With an estimated value of $20 billion a year, according to Global Financial Integrity, wildlife trafficking goes beyond the killing or poaching of protected or managed species and also includes illegal trade in wildlife parts and products which may otherwise have been legally acquired through licensed trophy hunting and similar activities. For the insurgent and terrorist groups referenced above which operate in Africa, however, their primary involvement in this trade centers around the direct poaching of wildlife or brokering of supply-side transactions, with the ivory from a single elephant fetching approximately $30,000 to $40,000 and the

market value for a single rhino horn exceeding $250,000. Though this illicit activity is currently less than a tenth of the estimated value of the global narcotics trade, it has risen to one of the top five criminal networks in the world with the barriers to entry and the risk of getting caught – or effectively prosecuted – extremely low. And unlike the open-ended supply side of the drug trade, the supply of elephants and rhinos is finite with escalating death rates for some species exceeding their birth rates, thus pushing those species closer to extinction. In this regard, the trafficking of wildlife forms a unique community of common interests between regional, national, and international NGOs and defense and security agencies which must leverage these common interests to overcome their traditional barriers to trust and cooperation. From the perspective of conservation, environmental and development organizations, the illegal trade in wildlife not only threatens specific species, but it also destabilizes local economic growth and development as it undermines the biodiversity which is so critical to the rural poor by denying wildlife revenue sources, to include ecotourism. This point was made by Kirstin Siex, who is a Senior Biodiversity Policy Advisor of the Bureau for Africa at USAID, when she stated in a July 2015 forum in Washington, DC, that “Biodiversity is the foundation for development. Wildlife crime is therefore a development issue.” Though the specific economic impact of ecotourism varies from country to country in Africa, its primary benefits are the insertion of revenue directly into local economies as well as creating a catalyst for improvements to local infrastructure (roads, medical clinics, water supplies, etc.) to support the ecotourism. A cascading downward spiral thus results from wildlife trafficking, with the loss of limited revenue sources associated with biodiversity increasing the attractiveness of poaching as an alternate – albeit illegal – income option for local residents. This point is discussed in more detail below.


36

The Intersection of Wildlife Trafficking and Insurgencies in Africa

Similar to biodiversity-focused organizations, law enforcement and security organizations are reacting with alarm to the sharp increase in poaching activities over the past decade. According to TRAFFIC, in the six-year period from 2007 to 2013, the number of rhinos poached in South Africa alone rose from 13 a year to 1,004, while in the Selous Game Reserve in Tanzania, the total population of elephants in that one location decreased from 70,000 to just 13,000. In parallel with these rapid changes, the role of terror and insurgent organizations within the wildlife trafficking trade has become more prominent with several African groups turning to the poaching of elephants and/or rhinos as a key financial resource for their operations. Perhaps the best known occurrence happened in Bouba Ndjida National Park in Cameroon from January to April 2012, when approximately 650 elephants were killed by 50-100 poachers on horseback later identified as janjaweed fighters from Sudan who are the notorious militia known for the atrocities they committed in Darfur. Continuing to serve as a terror arm of President alBashir who is wanted for war crimes and genocide, the janjaweed’s aggressive pursuit of elephant ivory in a national park over 600 miles away has been linked by the non-profit group C4ADS as a response to a growing demand for weapons, ammunition, food, communication systems, and other critical supplies to sustain their operations. With the once thriving elephant population in South Sudan having been sharply reduced from 80,000 to approximately 2,500 elephants during the civil war – in many cases due to the need for bushmeat for fighters on both sides – these long range poaching activities by the Janjaweed are becoming more common. Similarly, Joseph Kony and the Lord’s Resistance Army (LRA) have also been recently linked to using elephant poaching as a “conflict resource” with a report from America Abroad stating that the LRA was receiving $30,000-$40,000k per elephant they killed with approximately 70 elephants killed in the Democratic Republic of the Congo (DRC) Garamba National park in a two-month period in 2013. As with many illicit network and terror financing reports, there is difficulty in directly attributing a crime

to both the perpetrator and the reason for the perpetrator conducting the crime, especially when there is an overlap of illicit networks as well as varied allegiances and motivations for those operating within these networks. There is also difficulty in assessing the exact financial value of the poached commodity at various points in the supply chain since $30,000 appears to be more of a market value. Nonetheless, a sharp rise in poaching activities in the border region of the DRC, the Central African Republic (CAR), and the Republic of South Sudan where the LRA operates has coincided with reports stating that Kony directed his LRA fighters to poach elephants, but the ability to attribute an exact percentage of this increase to Kony’s orders is difficult. These complexities as well as allegations that the LRA trades poached ivory in exchange for weapons, food and other critical supplies, are detailed in a 2013 report from the Enough Project titled, “Kony’s Ivory: How Elephant Poaching in Congo Helps Support the Lord’s Resistance Army.” Moreover, the steady decline of the LRA from a force of over 2,700 rebels in 1999 to approximately 150-250 today underscores the potential role of elephants as a critical survival resource for the fighters. A recent analysis from National Geographic also makes the point that Kony has institutionalized the practice of burying ivory in the jungle and even in rivers so as to have the conflict resource readily available when needed. “Ivory operates as a savings account for Kony,” the article quotes one State Department official from the Bureau of Conflict and Stabilization as observing. In Eastern Africa, the potential role of al-Shabaab in Somalia as a middleman in the trade of illicit ivory poached in Uganda, Kenya, Tanzania, and elsewhere has also emerged. Brought to the forefront of the media by a 2012 report from the Elephant Action League, the trafficking of “Africa’s White Gold of Jihad” claims that al-Shabaab provides access to Somali smuggling routes for wildlife traffickers and that up to 40% of al-Shabaab funding – close to $500,000 a month – may derive from its role in this illicit trade. Though these claims are still being investigated by independent sources and are not supported in a


37

Jerome M. Conley

recent ivory trade-route analysis by National Geographic, the linking of elephant poaching to the terrorist group responsible for such high profile attacks as those on Garissa University College in Kenya; the Westgate Mall in Nairobi; and the 2010 attack in Kampala on bars packed with World Cup soccer fans; elicits concern from security experts and a high degree of scrutiny for further details. Moreover, if this reporting is correct, it signals a deviation from the normal role played by insurgents in wildlife trafficking in that insurgent groups are usually associated with the direct harvesting of wildlife products rather than a middleman role that sits between the poachers and the external, overseas shippers and marketers. Two additional insurgent groups in Africa which have recently garnered attention for their possible involvement in wildlife trafficking are RENAMO in Mozambique and Boko Haram in Nigeria. RENAMO, no stranger to wildlife poaching as a form of organizational subsistence dating back to its role in the civil war in the 1970’s and 1980’s, has been flagged as a potential key contributor to the recent spike in rhino poaching at Kruger National Park along the South Africa-Mozambique border, due to a short resurgence in the RENAMO movement in 2013-2014 and the estimation that approximately 90% of the well-armed and well trained poachers entering Kruger during that period were coming from across the border in Mozambique. As with other assessments which draw the connections between insurgents and poachers, however, it is difficult to assess if those doing the tracking and pulling the triggers are in fact former RENAMO fighters, and if so, is their motivation to support the revival of the movement or to simply use skills they previously acquired in support of new, purely criminal activities. On the opposite side of the continent in Nigeria, the growing Islamist and separatist movement of Boko Haram has shown a willingness to engage in a full-spectrum of criminal activities in order to fund its operations, ranging from robbery, to kidnapping, to drug smuggling to potentially oil bunkering. With a growing number of interdictions of wildlife contraband

which have shipped through Nigerian ports, speculation in the media and among local government officials is on the involvement of Boko Haram in some of these activities, with some of this speculation based on geographic proximity between Boko Haram’s operational bases in Northern Nigeria and poaching activities across the border in Cameroon. Similar to the discussions about RENAMO and al-Shabaab, however, additional open source information is required in order to further substantiate and validate these connections. A final complexity in linking “well-armed, highly trained” poaching groups in Africa to insurgent or terrorist organizations is the historical and ongoing involvement of some law enforcement and military agencies in illicit wildlife trade. Going back to the reported involvement of the South African Defence Force (SADF) in wildlife trafficking to support UNITA operations in Angola, a more recent example includes the March 2012 killing of a herd of twenty-two elephants in the Garamba National Park in the DRC which was attributed to an MI-17 helicopter owned by the Ugandan military. Though no witnesses of the attack have come forward, the manner in which the elephants were herded together and killed with single AK-47 headshots from above, as well as the absence of any tracks leading to or from the kill zone, have led park rangers to conclude that a Ugandan helicopter photographed flying at low-level in the park on two occasions in the following weeks was the helicopter involved in the poaching incident. Garmba park rangers have also stated that they have engaged in firefights with Sudan People’s Liberation Army soldiers from South Sudan and even Congolese government soldiers who have been caught wearing the red beret of the elite presidential guard. In response to this allegation, Maj. Jean-Pierrot Mulaku, a Congolese military prosecutor, acknowledged to a reporter from the New York Times in 2012 that, “An element of our army is involved. It’s easy money.” Challenges Similar to the challenges faced by the United States and the international community during three-decades of the “war on drugs,” there are


38


significant supply and demand factors which converge to enable a sharp rise in illicit wildlife trafficking and thus necessitate a multi-pronged, multiorganizational, transnational, and layered approach to contain and mitigate this spiraling trade. Though the United States has only a supporting role in most instances, its financial resources, technical innovation, and potential leadership role – to include setting an example by addressing its own domestic demand for illicit wildlife products – should not be underestimated. Moreover, the lessons, skills and ongoing experiences gained during another global war (the “war on terrorism”) provide some unique and compatible insights into strategies and tactics for limiting support to these illicit wildlife trafficking networks. The ability to contain and address the myriad of factors which promote and enable the supply-side of wildlife trafficking are complex, usually deeply interwoven with the local population and the operating environment, and often mirror those seen in traditional analyses of underground networks which support insurgencies. A publication in January 2013 by the project on Assessing Revolutionary and Insurgent Strategies (ARIS) titled Human Factors Considerations of Undergrounds in Insurgencies highlights several factors which contribute to the rise of the underground networks that support and sustain insurgent movements. These factors include economic deprivation; poor governance; lack of government legitimacy; marginalization or persecution of selected groups; history of conflict in the country or nearby countries; demographic youth bulge; exploitable primary resource commodity; and types of terrain. Poverty and limited options for other sources of revenue are key catalysts pushing members of local communities to engage in poaching which supplies the transnational trafficking networks. In an August 2014 interview with Africa Geographic, Major-General Johan Jooste, who heads the South Africa National Parks (SANParks) anti-poaching unit, stated that a group of three poachers can earn R100,000 to R200,000 (or about $7,500-$15,000) for a single two or three-day poaching

excursion, and this can serve as a significant incentive for them. ”If you’ve grown up in destitute poverty, that changes your life. And if you do it a few times, your life is changed forever. It’s the powerful social force that we are dealing with.” Concerning the risk of getting caught, or even killed, while conducting poaching activities, Colonel Nceba Bobelo, the Commanding Officer in 2013 for the Joint Operations Tactical Headquarters in Mpumalanga, told the South African Defence magazine that, “These people are desperate because we are told they get a deposit from leaders of the syndicates before they carry out the job. Some of the poachers are young unemployed South African men driven by poverty and lured by foreign syndicates to do the dirty job in exchange for attractive amounts of money.” Through the use of these patron systems, an indentured relationship is created between the local syndicate leader and the poachers who are often too poor to afford the weapons, ammunition, and supplies needed to carry out the poaching operations on their own. Within the topic of poverty and destitution, an additional contributing factor towards this surge in wildlife poaching which merits mention – though which may not be a central contributor to the financing of insurgent groups – is the rising demand for bushmeat in Africa and abroad. With people in the Congo Basin consuming volumes of meat on par with their counterparts in Europe and the United States, and approximately 80% of this meat coming from wildlife, there is a rapid rise in the demand for bushmeat for domestic consumption as well as black market sales to expats living abroad. The scope of this international illicit trafficking of bushmeat is smaller but not insignificant in comparison to that of ivory, rhino horns, and other wildlife products, and some direct links to the financing of insurgent and terrorist groups can be anticipated due to the overlap with other illicit wildlife trafficking networks. As additional factors which enable the growth of illicit networks, poor governance and a lack of government legitimacy serve to not only stymie economic development within those destitute regions that are impacted


39

Jerome M. Conley

by poaching, but the attributes of corruption and limited rule of law also cause significant challenges for implementing anti-poaching strategies. This issue serves as one of the main challenges for global efforts to combat wildlife trafficking in that the absence of basic governing functions, transparency, and accountability inhibit the integration and sustainment of protection and conservation efforts. Stated differently, if local or even national officials and stakeholders are potentially influenced by near-term rewards, such as bribes or salaried positions in exchange for facilitating poaching activities, then the attempts by external entities to promote good governance and rule of law will fall on unfertile ground. This statement is not to imply that all stakeholders within the antipoaching community are corrupt, but rather that a few corrupt individuals within the system have the ability to undermine the strength and validity of the entire process and system. This vulnerability has been shown repeatedly with arrests in Uganda, Tanzania, South Africa, and elsewhere of politicians, law enforcement officers, wildlife officials, and other key personnel within the system. According to a report on America Abroad, such was the case in November 2014 when five officials from the Uganda Wildlife Authority were suspended from their jobs after 1½ tons of ivory worth an estimated value of $1 million disappeared from a storage locker. Further allegations of corruption surfaced when the suspended executive director of the Authority was returned to duty a few months later without explanation or apparent accountability for the missing ivory. In addition to the prevalence of corruption in some of the regions most at risk for wildlife trafficking, a second concern is the limited law enforcement and judicial authority to prosecute and punish poachers and enablers who are captured and brought to court. This includes limited bilateral and multilateral agreements to facilitate cross-border cooperation between law enforcement and judicial systems. Because these border regions are often porous and unguarded, the potential to get caught is limited. Moreover, the penalties and fees associated with poaching are often light and further undermine the potential for the criminal justice system to deter these illicit activities. “Within two months [of operations]

we had over 56 arrests but the dockets got lost. Once the dockets have gone missing the case is over and the suspects are released,” was one perspective and degree of frustration relayed by Colonel Nceba Bobelo in his 2013 interview with the South Africa Defence magazine. Perhaps the most significant issue undermining the implementation of effective strategies and tools for combating wildlife trafficking in Africa is the challenge of integrating local communities into these efforts. In many cases, the population surrounding the wildlife parks and protected habitats are active participants in the poaching activities due to the need for food and/or money. Traditionally, these communities would be stakeholders in local land use planning as well as the access and use of wildlife within these lands. But these traditions and authorities rarely rest anymore with the local community leaders, and the creation of fenced-in protected areas has the wildlife looking out and the local populations looking in. Major-General Johan Jooste from SANParks expressed this situation well – “The adjacent communities don’t own the park. It has never been theirs. If you’re living in an adjacent community, you’re going to ask: ‘What do I get from that park? A few of my community work there, but most of us, what do we get?’” No longer vested in the land use planning for these areas, the population from these marginalized communities has transitioned from potentially being a strong advocate for wildlife conservation to being a critical node on the supply-side of the global trade in wildlife trafficking. This phenomenon of being a “conservation refugee” is a significant theme and challenge for integrating global and regional conservation strategies and goals with the local realities of day-to-day survival. As one Nigerian blogger wrote in response to a 2013 Council on Foreign Relations (CFR) commentary on wildlife trafficking in Africa – “People neither have the time, energy nor money to engage in ‘conservation’ in Africa – they need jobs and want to eat….. Elephants and other wildlife are of little more than sentimental value in states with appalling human capital indices. We can actually live without them.”


40


Some additional contributing factors which enable trafficking and are echoed in the ARIS research on human factors and underground networks include the presence of an exploitable primary resource as well as a history of conflict in the country or nearby countries. For this discussion, the exploitable resource is clearly the variety of wildlife products available to poachers at relatively low levels of risk. And when assessing Africa as a source for these products, there is a significant history of conflict throughout the continent with almost every country having experienced a coup, conflict, or significant insurgency at some point over the last fifty years. For those countries currently engaged in an active conflict or insurgency, law enforcement and security elements within these countries are often outgunned and “low-tech” in comparison to the poachers they face who may carry night-vision devices, rocket propelled grenades, high-caliber rifles, and even employ helicopters. The result has been a steady rise in the number of park rangers killed, with over 140 rangers killed in the DRC’s Virunga National Park alone over the last fifteen years. What Is Driving Demand Though the primary potential linkage between insurgent groups and wildlife trafficking exists mainly on the supplyside of trafficking networks, an appreciation of the demand-side of the network is also needed in order to enact any comprehensive strategies to degrade these networks. Asia specifically sits as the primary consumer for ivory and rhino horn products, with China and Vietnam considered central actors due to their rapidly expanding middle classes which now

have the resources to purchase these luxury items. A previous spike in ivory smuggling to China in the 1970s and 1980s was sharply reduced through the implementation of international treaties and enforcement actions, but a renewed appetite for ivory as a decorative status symbol and executive gift during business transactions undermined these earlier successes. Perhaps not surprisingly, Chinese government officials and military personnel have been linked to the illegal trade in ivory with one report documenting rapid increases in ivory prices in Tanzania in 2013 when Chinese naval vessels arrived on port calls as well as the doubling of prices with the arrival of a large diplomatic delegation that joined Chinese President Xi Jinping on a state visit to Tanzania. It should also be noted that the United States and Europe are also large consumers of illegal ivory, so enforcement actions must thoroughly address these markets as well. Though rhino horn has long been considered an important ingredient in traditional Chinese medicine, demand significantly increased over the past decade due to rumors that it could serve as a cure for cancer and that ground up horn mixed in drinks could also preempt the onset of hangovers. Members of the new Asian middle and upper classes were therefore often faced with the emotional decision to seek rhino horn as a perceived cancer treatment for loved ones or the status-seeking ability to flaunt their wealth by ingesting rhino horn when out socializing with friends and business associates. As highlighted below, a variety of enforcement and education initiatives are underway in Asia and around the world to


41

Jerome M. Conley

address the misperceptions and deliberate false marketing efforts which are driving these surges in demand. Ongoing Initiatives In February 2014, the White House released the new “National Strategy for Combating Wildlife Trafficking” which emphasized three key pillars to counter the illegal trade in wildlife products. These pillars mirror efforts underway around the globe and focus on: improving enforcement mechanisms and resources domestically and across the world; reducing the demand for the illegal products; and strengthening and forming new partnerships with stakeholders around the globe, including NGOs, local communities, and private industry. Key events which complimented this strategy was the recognition of wildlife trafficking as a “serious crime” during the June 2015 United Nations meeting in Peru – thus enabling nations to seize assets, request multinational assistance, and raise penalties against traffickers (Louis Arraya, CSIS) – as well as a high-level Chinese delegation visit to Washington, DC in July 2015 to openly discuss and enable bilateral measures to stem the illegal wildlife trade which complimented an earlier trip to China and Vietnam by Secretary of the Interior Sally Jewell. Beyond these high-level talks and diplomatic advancements, direct action by the international community is occurring on the ground in Africa to improve law enforcement, judicial and security capabilities. In August 2015, the BBC reported that twelve British soldiers were being deployed to Gabon to assist local rangers at a training facility in Mokekou to counter elephant poaching. For the first time, the US Fish and Wildlife Agency has deployed agents overseas at U.S. embassies in China, Vietnam, Botswana, Peru, and Tanzania to coordinate counter-trafficking efforts, with additional deployments of five more agents planned in other locations by the end of 2015. The U.S. government has also provided funding for the International Law Enforcement Academy (ILEA) in Botswana which has provided courses in “wildlife investigations” to attendees from twelve African countries in 2015 alone. To enable more

robust capabilities for forensic investigation and attribution, the World Bank is funding a program for DNA analysis of seized wildlife products to assist in better defining sources as well as potential trafficking routes for products. And the implementation of harsher fines and sentences for traffickers in several African countries, backed by more rigorous investigative procedures, may slowly increase the deterrent value of these enhanced criminal justice systems. Much attention continues to be given in the media to the donation and deployment of technologies to assist park rangers and law enforcement personnel in Africa. Though unmanned aerial vehicles (UAVs), night vision devices, and sensor systems may enhance awareness of activities within the parks, the logistical challenges of timely movement to poaching sites remains a key issue as well as being reactive to decisions being made by poachers rather than proactive. In this regard, the introduction and integration of data gathering and management tools has shown promise with their ability to improve more efficient employment of limited assets while also providing capabilities for network and nodal analyses of local supply chains. Tools such as the Spatial Monitoring and Reporting Tool (SMART) – which gathers data and provides best practices for wildlife law enforcement patrols – and the EAGLE Network (Eco Activists for Governance and Law Enforcement) for countering corruption and raising awareness of international and national judicial activities, provide examples of complimentary, low cost, and grass-roots capabilities to target the supply side of wildlife trafficking. In addition, like any sustainable strategy that targets underground networks and insurgencies, a primary requirement in combating wildlife trafficking is the promotion of community-based initiatives which limit the incentives for local poachers who supply the trafficking networks. This is a long-term problem that requires time and patience and has no simple solution as it involves the alignment of economic development opportunities with wildlife conservation goals. In this regard, programs such as the Communal Areas Management Program for Indigenous


42


Resources (CAMPFIRE) in Zimbabwe provides a potent – albeit controversial – example of community-based resource management which allows economic development through sustainable consumption of wildlife species by means of sport hunting and other legalized activities. Despite perceived shortcomings, such efforts require further examination to determine if these perceived flaws rest in the intention or the implementation of the programs. Finally, the need for impartial, open source data is critical. Many of the recently cited reports on the linkages between terrorism and wildlife trafficking come from non-governmental organizations which are heavily involved in wildlife conservation efforts. As they are on the ground in these critical locations and thus have direct access to the raw data where poaching occurs, these NGOs are a natural source for information about changes in activities as well as poacher profiles. However, some government agencies have been suspicious of NGOs that report tight linkages between wildlife trafficking and the growth of insurgent groups, especially when there are claims not backed by clear facts about groups such as Boko Haram using wildlife trafficking to support their activities, to include the kidnapping of school girls, etc. Even the role of al-Shabaab as a conduit in the illicit ivory trade in East Africa has been called into question because of the logistical impracticality of their involvement. In order to garner more attention and additional resources for their conservation causes, there is a perceived benefit for these NGOs in highlighting potential linkages to terrorist groups since “terrorism sells” when it comes to government funding. Overall, there is no questioning the staggering rise in poaching activities over the past decade and there is a firm need for sustained international cooperation to stem this flow in wildlife death before more species face extinction. To help guide and prioritize the global response, better access to open source data for quantifying and qualifying the connections between insurgent groups and trafficking networks, as well as the ability to better characterize these networks, should be a near-term imperative.


43

References Agger, Kasper and Jonathan Hutson (June 2013). Kony’s Ivory: How Elephant Poaching in Congo Helps Support the Lord’s Resistance Army. Enough Project. Christy, Bryan (Sept. 2015). How Killing Elephants Finances Terror in Africa. National Geographic. Combating Wildlife Poaching and Insecurity in Africa (2015). Center for Strategic and International Studies. Retrieved at http://csis.org/press/pressrelease/combating-wildlife-poaching-and-insecurity-africa Howard, Brian (2015). U.S. Steps Up Fight Against Poaching and Wildlife Trafficking. National Geographic. Retrieved at http:// news.nationalgeographic.com/2015/07/150715-poaching-wildlife-trafficking-elephants-rhinos-ivory/ Jones, KerriAnn (2014). Testimony on International Wildlife Trafficking Threats to Conservation and National Security. Assistant Secretary, Bureau of Oceans and International Environmental and Scientific Affairs, Before the Committee on Foreign Affairs, U.S. House of Representatives, Washington, DC Maissels F, Strindberg S, Blake S, Wittemyer G, Hart J, et al. (2013) Devastating Decline of Forest Elephants in Central Africa. PLoS ONE 8(3). Milliken, Tom (2014). Illegal Trade in Ivory and Rhino Horn: An Assessment to Improve Law Enforcement under the Wildlife TRAPS Project. A TRAFFIC Report. Moves Against Rhino Poachers Are Starting to Bear Fruit (2013). Defence. Retrieved at http://www.dod.mil.za/operations/poaching/rhino.htm Nir Kalron, Nir and Andrea Crosta (2012). Africa’s White Gold of Jihad: al-Shabaab and Conflict Ivory. Retrieved from http://elephantleague.org/project/ africas-white-gold-of-jihad-al-shabaab-and-conflict-ivory/ Poaching and Terrorism: The Race to Protect Wildlife and National Security (2015). America Abroad. Retrieved at http://americaabroadmedia.org/radio/ poaching-and-terrorism-race-protect-wildlife-and-national-security Somerville, Ketih (2014). Ivory, Insurgency and Crime in Central Africa: the Sudans Connection. African Arguments. Retrieved at http:// africanarguments.org/2014/09/16/ivory-insurgency-and-crime-in-central-africa-the-sudans-connection-by-keith-somerville/ Stokstad, Eric (18 June 2015). DNA from Elephant Tusks Reveals Poaching Routes. Retrieved from http://news.sciencemag.org/africa/2015/06/dnaelephant-tusks-reveals-poaching-routes Vanishing Point: Criminality, Corruption and the Devastation of Tanzania’s Elephants (2014). Environmental Investigation Agency (EIA). Vira, Varun and Thomas Ewing (2014). Ivory’s Curse: The Militarization & Professionalization of Poaching in Africa. C4ADS

Jerome M. Conley

About the Author


44

About the Author

Jerome M. (Jerry) Conley is the Senior Director for Programs at the Virginia Tech Applied Research Corporation (VT-ARC). Prior to joining VT-ARC, he was an Adjunct Fellow for National Security Analysis at the Johns Hopkins University Applied Physics Laboratory (JHU/APL) and a Senior Research Scientist at the Institute for Crisis, Disaster and Risk Management (ICDRM) at The George Washington University. He previously served in the United States Marine Corps with tours of duty including Southwest Asia, the Horn of Africa and the Pacific Rim region. His publications include a book on Indo-Russian military and nuclear cooperation; a book chapter on nuclear command and control in the 21st century; and eight book chapters concerning insurgencies in Africa, underground networks, and human factors within insurgencies. He has also co-authored journal articles on the topic of public health emergencies. Author contact information: [email protected]


45

5

Engagement or Pressure? Dealing with North Korea’s Crimes against Humanity

Yangmo Ku

Yangmo Ku

North Korea has been involved in human rights violations in a wide and systematic manner during a period of relative peace.1 According to a report made by the Commission of Inquiry (COI) on Human Rights in North Korea, which was established in March 2013 by the Human Rights Council of the United Nations, the North Korean regime has been and is committing systematic, widespread, and grave human rights abuses (Human Rights Council 2014). North Korea almost completely denies its citizens’ rights to freedom of thought, conscience, and religion as well as the rights to freedom of opinion, expression, information, and association. Discrimination based on state-assigned social class and birth and discrimination against women are pervasive in North Korea. The regime also violates freedom of movement, as the state does not allow people to travel without official authorization. The COI report also estimates that between 80,000 and 120,000 political prisoners are currently detained in four large prison camps. Inmates have suffered from deliberate starvation, forced labor, rape, torture, and forced abortion and infanticide. About 45,000 North Korean workers who have jobs overseas suffer another serious human rights abuse. To earn hard currency, North Korea has dispatched a number of workers to foreign countries since 1967 when it signed a bilateral trade agreement with Russia.2 The laborers work for sixteen hours per day in inhumane and unsafe work conditions, and approximately 80-90 percent of their wages is taken by the North Korean state as a “loyalty fund” (Han, et al 2014). Given these facts, international law and norms are significantly damaged because the North Korean regime’s serious human rights abuses have long continued without actions taken by the international community. In this article, I first address how grave North Korea’s human rights violations, particularly crimes against humanity, have been.3 I then 1. With three nuclear tests thus far, the North Korean regime often shoots off missiles and has occasional clashes with South Korea. However, there has been no active armed conflict on the Korean peninsula since the Korean War (1950-1953). For this reason, I use the term ‘a period of relative peace.’ 2. In 2013, 16 countries were known to host North Korean workers: Algeria, Angola, China, Equatorial Guinea, Ethiopia, Kuwait, Libya, Malaysia, Mongolia, Myanmar, Nigeria, Oman, Poland, Qatar, Russia and the UAE (Shin and Go 2014, 21).

examine the direct and indirect reasons for the regime’s violations of human rights. Finally, I evaluate the validity of a commonly advocated approach by state leaders and pundits—pushing for the regime’s collapse—and suggest a better approach to improving North Korea’s human rights conditions in the short and long term. Crimes against Humanity in North Korea The concept of crimes against humanity in customary international law was first articulated in the 1945 Nuremberg Charter, although the same idea appeared as the laws of humanity in the 1907 Hague Conventions (Hwang 1998). Its concept evolved further with the 1993 Statute of the International Criminal Tribunal for the former Yugoslavia and the 1994 Statute of the International Criminal Tribunal for Rwanda. The former suggested that a nexus to armed conflict was required to define a crime against humanity, while the latter suggested that a discriminatory motive was required (Robinson 1999). After intensive discussions and debates, the definition of crimes against humanity was firmly established in the 1998 Rome Statute of the International Criminal Court (ICC). Article 7 of the statute defines crimes against humanity as: Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) murder; (b) extermination; (c) enslavement; (d) deportation or forcible transfer of population; (e) imprisonment or other severe deprivation of physical liberty; (f) torture; (g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, 3. This article places more emphasis on ‘crimes against humanity’ than ‘ordinary human rights abuses,’ as the former causes more direct and grave human rights violations than the latter and thus it should be dealt with more urgently. Despite the existence of a ‘grey zone’ between the two terms, I assume that although all crimes against humanity are violations of human rights, not all violations of human rights would fall under the International Criminal Court (ICC) Statute’s definition of crimes against humanity. For instance, a government’s blanket prohibition on free political speech would constitute a violation of human rights but not necessarily a crime against humanity unless individuals are systematically incarcerated, tortured, or killed for their speech.


47

Engagement or Pressure? Dealing with North Korea’s Crimes Against Humanity

gender grounds…; (i) enforced disappearance of persons; (j) the crime of apartheid; (k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. This concept of crimes against humanity clearly applies to the North Korean case. The COI report reveals that North Korea has been committing such offenses according to deliberate policies established at the highest level of the State. These crimes include “extermination, murder, enslavement, torture, imprisonment, rape, forced abortions and other sexual violence, persecution on political, religious, racial and gender grounds, the forcible transfer of populations, the enforced disappearance of persons and the inhumane act of knowingly causing prolonged starvation (Human Rights Council 2014).” The primary perpetrators are officials of the State Security Department, the Ministry of People’s Security, the Korean People’s Army, the Office of the Public Prosecutor, the Judiciary, the Workers’ Party of Korea, the National Defense Commission and the Supreme Leader of North Korea. Particularly, two elements qualify the regime’s actions as crimes against humanity. First, the primary targets of systematic and widespread attacks are persons detained in political prison camps, those who try to flee the state, professing Christians, and others considered as subversive influences. The North Korean regime considers them all threats to the stability of the political system. Thus these alleged criminals suffer from deliberate starvation, forced labor, rape, torture, and forced abortion and infanticide. For instance, a young man who spent four years in a North Korean prison camp said, “We were always hungry and resorted to eating grass in spring. Three or four people died of malnutrition. When someone died, fellow prisoners delayed reporting his death to the authorities so that they could eat his allocated breakfast (Amnesty International 2004, 35).” A former prison guard also describes how prisoners are treated: “People in the facility were beaten every day with sticks or with fists…Those who attempted to escape…had their hands

tied behind their backs and they were hung on the wall for three to seven days (Human Rights Watch 2002, 24-25).” In addition, a female defector who was in a prison camp explains, “If it is found that a woman is pregnant, they administered a medicine to abort. If the woman gave birth to a baby, they covered it with vinyl and placed it facedown and killed it. Seven women gave birth to children in that prison and they killed all of them (Human Rights Watch 2002, 23-24).” Second, starving populations have been the victims of crimes against humanity, particularly during the 1995-1998 period, when about 600,000 to 900,000 people perished due to a great famine (Lankov 2013, 179). The famine was caused by the significant decrease of subsidized trade with and aid from the Soviet Union and other communist countries after the demise of the Cold War, as well as catastrophic natural disasters such as flooding and drought. However, North Korea’s misguided government policy was the primary cause. The North Korean case is qualitatively different from past famines in failed states such as Somalia. As Victor Cha argues, the North Korean state strictly controlled the bulk of its population and “the regime was certainly aware of the crisis early on…but continued to spend vast sums of money on luxury goods, sophisticated defense technology, and allocated food rations away from North Korean civilians to its military personnel (Cha 2012, 189).” These decisions and policies violated the internationally recognized right to food because they were applied to sustain the present political system, in full awareness that such decisions would lead to starvation and the related deaths of hundreds of thousands of people. Reasons for North Korea’s Crimes against Humanity As described above, the North Korean regime has seriously violated human rights, inflicting huge suffering on its own people. In recent human history, the North Korean case is unprecedented in the sense that these systematic and widespread human rights abuses have taken place during a period of relative peace. Why has the North Korean regime


48

Yangmo Ku

committed such grave violations of human rights? It is necessary to take into consideration both direct and indirect reasons. A direct reason may lie in North Korea’s totalitarian state system and hereditary power transitions. This political system is based on the Juche ideology. The term consists of three main principles—independence in politics (jaju), self-sustenance in the economy (jarip), and self-defense in national defense (jawi) (Ku 2013, 82-83). Since its inception in 1948, North Korea has maintained a totalitarian state system that is ruled by a supreme leader (Suryong). As the apex of the North Korean regime, the Suryong plays central roles in social revolution and construction by using Juche ideology, command, and direction. Thus the North Korean regime developed a cult of personality around Kim Il-sung (1948-1994), the founding father of the country, and continued its monolithic political system by transferring power to his son Kim Jong-il (1994-2011) and grandson Kim Jong-un (2012-present). The Juche ideology, however, brought isolation from the international community, which significantly worsened economic conditions. Under such circumstances, the Kim dynasty could not have acquired solid political legitimacy due to the harsh totalitarian rule and subsequent miserable living conditions of the general North Korean public. This weak legitimacy prompted the Kim regime to tighten its grip over the thoughts and actions of its citizens in order to maintain and enhance the regime’s security. In this process, the North Korean regime has seriously abused the human rights of people regarded as agents to subvert the Kim regime, even committing crimes against humanity such as extermination, forced labor and sexual violence. Additionally, an indirect reason might be the structural environment surrounding the Korean peninsula, because it has provided the North Korean regime with an excuse for violating human rights. Following the end of World War II, Korea failed to become an independent and unified country as the two superpowers, the Soviet Union and the United States, entered their intensive Cold War rivalry. This led to the division of the

peninsula into two Koreas. In this geopolitical context, the North Korean regime has identified its main security threats as emanating from the United States and its close ally South Korea. Specifically, during the Korean War (1950-1953), U.S. General Douglas MacArthur advocated the use of nuclear weapons to President Harry Truman in order to defeat North Korea early. This occasion proved to be a great threat to the North Korean regime’s survival, even though the president did not approve such an action (Clemens 2010). Moreover, U.S. President Dwight Eisenhower deployed numerous tactical nuclear weapons in South Korea in the 1950s. More than 700 nuclear weapons were deployed on the Korean peninsula at its peak in the 1970s, augmenting North Korean leaders’ perception of external threats. The demise of the Cold War further increased North Korea’s threat perception as its patrons, the Soviet Union and China, betrayed North Korea and normalized relationships with South Korea. Therefore, to uphold its regime security vis-à-vis perceived external threats stemming from the structural environment surrounding the Korean peninsula, the totalitarian North Korean state with weak legitimacy has more harshly violated human rights of people who are suspected subversives. Policy Implications Given the direct and indirect reasons for North Korea’s grave human rights abuses, what approach should or can the international community adopt to improve North Korean human rights conditions? Would it be best as many argue for the international community to exert economic and diplomatic pressure on North Korea so as to cause its government to collapse? How can the international community persuade the North Korean regime to come out of its long-standing isolation and become a responsible member of the world community? It will not be easy for the international community to address the direct cause of North Korea’s serious human rights abuses—its totalitarian political system—unless the regime collapses by itself or the international community pushes it to collapse. However, waiting for North Korea’s


49

Engagement or Pressure? Dealing with North Korea’s Crimes Against Humanity

natural regime collapse and adopting a pressure-centered approach solely aimed at toppling the regime has seemed to be ineffective and dangerous. Many pundits have predicted the North Korean regime’s demise since 1994, but its leaders have shown significant level of resilience in response to various internal and external shocks, including the death of top leaders Kim Il-sung and Kim Jong-il, harsh economic crises, and international economic sanctions. Not the elites, but common people have usually suffered most from the international community’s harsh economic sanctions, which have been imposed mainly due to North Korea’s nuclear and missile tests. In addition, it appears that the North Korean regime will not easily collapse as long as its patron, China, supports its regime’s survival. More than 80 percent of North Korea’s international trade is with China (Noland 2015). As a permanent member of the UN Security Council, China has not been eager to impose sanctions on North Korea. Furthermore, even if possible, the North Korean regime collapse could produce far more catastrophic consequences on the Korean peninsula, since it could generate chaotic security conditions and refuge flows and could spark an unintended military conflict between South and North Korea. For instance, supreme leader Kim Jong-un could initiate an armed conflict with South Korea if he feels he is at the brink of losing power due to an external military intervention, an internal economic crisis, a military coup, or public uprisings. In the North Korean political context, losing power would be equivalent to a death sentence for the top North Korean leaders, motivating them to spark an armed conflict that they still may not survive anyway. Such a strategy could lead to an all-out war on the Korean peninsula, which is one of the most militarized areas in the world. This type of conflict could produce huge human casualties, which would mean much harsher human rights violations. For these reasons, it would be inappropriate for the international community ardently to push for the North Korean regime’s collapse. Therefore, instead of the pressure-focused approach for regime collapse, I suggest both short-term and long-term strategies for improving North

Korean human rights situation in a practical manner. As a short-term strategy, it would be necessary for the international community, including UN agencies and NGOs, to continue to raise the issue of specific human rights abuses, committed by the North Korean state. As mentioned before, transnational human rights organizations such as the Human Rights Watch and the Amnesty International persuaded the UN Human Rights Council to establish the Commission of Inquiry on Human Rights in North Korea in March 2013, which issued a comprehensive report in February 2014. The COI report contained numerous accounts from survivors and escapees of North Korea’s prison system of government atrocities, revealing horrible human rights abuses in the hermit kingdom. The Commission of Inquiry even recommended that the UN Security Council refer the North Korean situation to the International Criminal Court for action. In March 2014, the UN Human Rights Council adopted a resolution supporting the commission’s findings. In December 2014, the UN General Assembly plenum endorsed the findings and the UN Security Council debated human rights situation in North Korea for the first time (Human Rights Watch 2015). Unlike its typical reaction or ignoring international criticism completely, the North Korean government actively defended its position by publishing a serious, considered and professional self-portrait of its human rights situation. The regime also took a series of high-level diplomatic initiatives, including sending highlevel former nuclear negotiator Kang Sok Ju to visit to the European Union and North Korean Foreign Minister Ri Su Yong to visit to the UN General Assembly for renewed dialogue (Hawk 2014). Although it is hard to ascertain that the North Korean regime has made any meaningful effort to improve its human rights conditions, the above-mentioned international actions might push the totalitarian regime to think of and reform its human rights practices. Moving beyond this short-term strategy, it is crucial for the international community to soothe the Cold War-like conditions surrounding the Korean peninsula. This is to address the indirect cause of North Korea’s human rights violations, which is the structural environment around the


50

Yangmo Ku

two Koreas. In the international political system, the Cold War ended 25 years ago; the Korean peninsula, however, is still fraught with intense military tensions between North Korea, on the one hand, and South Korea and the United States on the other. The recent intensification of the US-Chinese and Sino-Japanese rivalries further worsen the Cold War-like conditions in the East Asian region. The more militarized the region is, the more excuses the North Korean regime has to violate human rights in an attempt to maintain power and stability in the face of these external vulnerabilities. The North Korean regime will continue to constrain its own people’s human rights using the excuse that it must utilize a large portion of its already limited resources for defense purposes. As a result of this military-first policy, it is reported that about 18 million people out of North Korea’s total 24 million people are experiencing some kind of food shortage; and about 2 million people, in particular many children, pregnant women, and the elderly, are suffering serious malnutrition (Shim 2015). Thus the international community, particularly the U.S. and South Korea, should strive to lessen military tensions around the Korean peninsula. The U.S. needs to change its current policy toward North Korea from ‘strategic patience,’ which involves waiting for North Korea’s regime collapse without any concrete policy, into a cautious engagement. For this purpose, the Obama administration could try to resume the SixParty talks in which the U.S., China, Japan, Russia, and the two Koreas negotiated over North Korea nuclear issues between 2003 and 2008. South Korea also needs to decrease the militarization of the region by helping to resume the Six-Party talks and reengaging North Korea with bilateral talks covering enhanced economic cooperation.

collective leadership system rather than sticking to a monolithic system based on one-man rule. These policy changes contributed to China’s rapid economic development and improvement in living standards. Similarly, Vietnam initiated new economic reforms, the so-called Doi Moi (renovation) policy, in the mid-1980s. It received support from ASEAN countries and former adversaries such as the U.S. and led to significant economic and societal development. If North Korea could adopt parts of these models, its human rights conditions could practically improve as its economic conditions become better. Of course, it would not be easy for the North Korean regime to enact the Chinese and Vietnamese models fully, as such a dramatic change could increase the danger of a regime collapse thanks to the inflow of external information into the hermit kingdom of North Korea. Also, the international community would not be very supportive of North Korea’s pragmatic policies if the regime does not give up its nuclear ambitions as well. In this regard, it would be extremely important for top North Korean leaders to have confidence regarding their regime’s security and to make a decision to resolve the nuclear deadlock more sincerely. The international community will not allow North Korea to succeed in the so-called Byungjin line—to develop nuclear weapons and economy simultaneously.

Additionally, to improve North Korea’s human rights situation in the long term, the international community needs to encourage the North Korean regime to follow Chinese and Vietnamese economic and political models. Starting in the late 1970s, China, led by Deng Xiaoping, discarded its ineffective planned economy and adopted a more pragmatic economic system that included market-oriented economic policies and an opendoor policy with the international market. China also employed a The Norwich Review of International and Transnational Crime, 2015 Edition

51

References Amnesty International, (2004, January). “Starved for Rights: Human Rights and the Food Crisis in the Democratic People’s Republic of Korea,” Cha, Victor, (2012). The Impossible State: North Korea, Past and Future. New York: HarperCollins Publishers. Clemens, Walter C. (2010). “North Korea’s Quest for Nuclear Weapons: New Historical Evidence,” Journal of East Asian Studies 10: 127-154. Han, Dongho, Suam Kim, Gyuchang Lee, Geumsoon Lee, and Jungah Cho (2014). White Paper on Human Rights in North Korea, Seoul: Korea Institute for National Unification. Human Rights Council of the United Nations (2014, February 7) “Report of the commission of inquiry on human rights in the Democratic People’s Republic of Korea,” A/HRC/25/63. Human Rights Watch (2002, November) “The Invisible Exodus: North Koreans in the People’s Republic of China,” Vol. 14, No. 8. Human Rights Watch (2015, February 13). “North Korea: Nothing to Celebrate About Kim Jong-Il: Birthday Recalls Mass Starvation, Executions, Forced Labor.” Hwak, David (2014, October 16, 2014). “North Korea Responds to the UN Commission of Inquiry,” Foreign Affairs. Hwang, Phylilis (1998). “Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court,” Fordham International Law Journal, Vol. 22, No. 2: 457-504. International Criminal Court (1998). “Rome Statute of the International Criminal Court.” Ku, Yangmo (2013, Summer). “The Emergence of Deng Xiaoping in North Korea? Determining the Prospects for North Korean Economic Reform,” Yale Journal of International Affairs, Vol. 8, No. 2: 76-86. Lankov, Andrei (2013) “Low-Profile Capitalism: The Emergence of the New Merchant/Entrepreneurial Class in Post-Famine North Korea,” in Kyung-Ae Park and Scott Snyder, eds., North Korea in Transition: Politics, Economy, and Society, New York: Rowman & Littlefield Publishers. Noland, Marcus (2015, August 17) “China Sneezes, North Korea Catches a Cold,” Peterson Institute for International Economics. Robinson, Darryl (1999). “Defining Crimes Against Humanity at the Rome Conference,” The American Journal of International Law, Vol. 93, No. 1 43-57. Shin, Chang-Hoon and Myong-Hyun Go (2014, December 11). “Beyond the UN COI Report on Human Rights in DPRK,” Asan Report. Shim, Elizabeth (2015, April 9). “Majority of North Koreans suffer from food insecurity, says U.N.,” UPI News.


52

About the Author

Yangmo Ku is assistant professor of political science at Norwich University. His research focuses on East Asian security, Korean politics and foreign policy, US foreign policy, and the politics of memory and reconciliation in East Asia and Europe. His previous research has appeared in the Journal of East Asian Studies, Asian Perspective, Pacific Focus, the Yale Journal of International Affairs, and the Journal of Educational Media, Memory, and Society, as well as in an edited volume, The Routledge Handbook of Memory and Reconciliation in East Asia (forthcoming). He previously taught in the School of International Service at American University and received his Ph.D. in Political Science from George Washington University.


53

6

Challenges for Cybercrime Theory, Research, and Policy

Kristy Holtfreter and Travis J. Meyers


The year 2014 was marked by several high profile cyberattacks targeting large, American-based retailers, including Home Depot, Target, and Staples. In addition to attacks against American retailers, 2014 also included a wave of security breaches in the online systems of insurance providers, technology companies, and financial institutions like JP Morgan Chase. As the year closed, U.S. governmental organizations and healthcare institutions were subject to massive breaches of employee and client information. In all, these cyberattacks are estimated to have cost the global economy US$400 billion in direct costs (e.g., financial losses) and indirect costs (e.g., corporate reputations) during 2014 (Center for Strategic and International Studies, 2014). The security breach at JP Morgan Chase alone compromised the personal information of more than 76 million households and 7 million small businesses. While staggering, these statistics are not surprising to those who study cybercrime. And, as discussed further, some scholars would argue that they are entirely consistent with theoretical expectations. Before delving into the research literature, it is useful to state that our conceptualization of cybercrime encompasses any crime in which the Internet is used as a tool; in other words, the offense(s) is highly dependent upon technology for its successful perpetration. This large conceptual net captures a range of offenses that may overlap with other specialized priorities of national and international law enforcement that are also of concern to the general public, including but not limited to terrorism, intellectual property theft, and crimes against children. On a less global level, offenses that are more common in specific age segments of the general population (e.g., online stalking and harassment by and against teenagers) would also fall within our conceptualization of cybercrime. Some of these behaviors do not in fact violate any laws; as such, they are better conceptualized as deviance. We discuss various subcategories of cybercrime that may also be committed without the use of technology (e.g., identity theft) in more detail in the sections that follow. With the widespread growth of Internet use on a global level, large-scale attacks and a variety of less damaging (albeit still serious) offenses falling

under the umbrella of cybercrime have become increasingly common. In the past year, approximately one-third of the world population, or roughly 3 billion people, accessed the Internet (International Telecommunication Union, 2015). According to one astonishing estimate, 18 of these Internet users became a victim of cybercrime every second, resulting in more than 1.5 million-cybercrime victims each day (United Nations Office on Drugs and Crime, 2013). In terms of gross domestic product, the Netherlands and Germany experienced the highest levels of cybercrime at 1.5 and 1.6 percent, respectively. In the U.S. alone, more than 40 million individuals had their personal information compromised or stolen (Center for Strategic and International Studies, 2014). These forms of victimization have become so common that the Federal Bureau of Investigation (F.B.I.) consistently ranks cybercrime as one of its top law enforcement priorities. As of late, these data breaches have been subjected to less individualized fraudulent activity and instead, current trends indicate a growing number of widespread cyberattacks orchestrated by organized or semi-organized criminal groups (Ortner, 2015). Complicating the picture, there does not appear to be an official definition—legal or otherwise—of cybercrime (Finklea & Theohary, 2015). And, just as there is no universal definition for cybercrime, there exists no single agency that has been tasked with combating cybercrime. As alluded to above, criminals committing cybercrime seek a variety of targets depending on their goal. They may be looking to steal personal account information for financial gain, obtain classified or copyrighted materials, or even traffic in stolen goods or identities. This heterogeneity in cyber offending has made classification and detection of perpetrators difficult. As scholars studying cybercrime are well aware, the alarming statistics underscore the need for theoretically informed, empirical research that is also policy relevant. In light of the aforementioned concerns, this essay examines current challenges to theory, research, and policy. We review some promising theoretical approaches to the study of cybercrime


55

Challenges for Cybercrime Theory, Research and Policy

victims and offenders, and also highlight some of the current approaches to punishment and innovations in online security within an international context. We conclude with a discussion of directions for future research. In doing so, it is our hope and larger goal that the current contribution stimulates meaningful cybercrime scholarship that will further inform both policy and practice. Cybercrime Theory While cybercrime certainly entails some unique aspects, it is not distinct from offline crimes in the sense that criminologists find value in the application of general theory. After all, general theories purport to explain all crimes at all times (Gottfredson & Hirschi, 1990). The challenges to theory lie in translating what are often complicated theoretical concepts into meaningful variables than can then be measured in an online context. To the extent that theories originally developed and tested in more “traditional” situational contexts can also explain varied forms of cybercrime, theory-based empirical research on cybercrime can also be used to lend support to the broader general theories. While there are a multitude of general theories that may be applied to the study of cybercrime (see e.g., Bernard, Snipes, & Gerould, 2009, for a review), we focus here on just a few that we believe offer the most promise for guiding research as well as policy. We include individual level theories such as self-control within our broader discussion of research on victims and offenders. Before doing so, we first review the theoretical framework that we believe best explains the vast proliferation of cybercrime: Cohen and Felson’s (1979) Routine Activity Theory (RAT). According to RAT, aggregate level changes in opportunity structures, working in tandem with lack of capable guardianship, will increase the convergence in time and space of motivated offenders and attractive targets for victimization. Although this perspective was first articulated long before the creation and expansion of the Internet, it reflects perhaps the most logical explanation for the vast proliferation of cybercrime (Newman & Clarke, 2003; Wall, 2007). Indeed, while crimes targeting

consumers have been around for hundreds of years, the Internet has simply provided yet another tool and venue for crime commission (Holtfreter, VanSlyke, & Blomberg, 2005). Along these lines, RAT is an insightful explanation for the occurrence of cybercrime and the continued increases that have been observed. The Internet itself is a source of opportunity, while the relatively unguarded nature of this landscape makes the potential benefits of crime appealing to motivated offenders. For cybercriminals, personal information (e.g., social security numbers, financial account details) is the primary attractive target; such information may be obtained via sophisticated hacking into third-party databases or making direct contact with unsuspecting consumers through phishing or spoofing attempts. Although motivation for crime is largely irrelevant in discussions of RAT, it perhaps goes without saying that offenders who target personal information online are likely motivated by the financial benefits such information may provide them, either in selling consumers’ personal details to other motivated offenders, or using it directly themselves (e.g., to open a new account and purchases goods or services). RAT has received considerable empirical support in general studies of consumer fraud victimization (i.e., offline contexts) as well as those focused more specifically on crimes facilitated by technology (Holtfreter, Reisig, & Pratt, 2008; Kigerl, 2012; Pratt, Holtfreter, & Reisig, 2010; Reyns, 2013). Consistent with the theory, Kigerl’s (2012) study of 132 countries revealed that wealthier nations and those with higher per capita rates of Internet use had greater amounts of cybercrime. Taking the lead from researchers who study violent crime, RAT applications to online crime at the individual level have focused on the identification of risky behaviors (e.g., using a credit card on a non-secure website, making purchases from unknown vendors) that put potential victims into contact with motivated offenders. A recent tradition in this literature is the linking of RAT with low self-control theory to explain individual level victimization. Along those lines, while risky online activities do in fact increase the likelihood of targeting, it is those individuals lacking in self-control who are


56


subsequently more likely to be victimized. We return to more specific findings (e.g., on self-control and/or its integration with RAT) from these studies in the section on victimization research below. Unlike many general criminological theories, RAT has added value in that findings based on the theory can directly guide policy implications in the form of situational crime prevention (SCP). These implications are quite straightforward: reduce opportunities through “target hardening,” and increase the presence of capable guardianship. This approach is appealing in the prevention of cybercrimes directed at organizations and security systems, as well as those geared toward individual victims. Guided by SCP, cybercrime may also be reduced by increasing the risk of detection as well as the severity of punishments for offenders (Choo, 2011). These strategies are not inconsistent with rational choice and general deterrence perspectives, which suggest that would-be offenders carefully weigh the potential costs and benefits of crime before choosing to offend. A limitation of deterrence-based strategies, however, is the reliance on the assumption of rationality among offenders. Future research might test this approach using a vignette-based design that taps into behavioral intentions to commit cybercrime. In sum much of the promising work to date has been guided by RAT, but additional research on general and specific deterrence for cybercrime offenders would add to the extant literature base and also inform policy. Cybercrime Research Cybercrime researchers share many of the same challenges that have historically plagued scholars of white-collar crime. These issues include, but are not limited to: a lack of an overarching, operational definition of cybercrime, limited availability and access to official sources of data on cybercrime (both offenders and victims), variation in the laws and sanctions directed toward prevention and punishment of cybercrime, limited research attention, and (although this appears to be changing), general public apathy toward financial forms of cybercrime given a typical media focus on crimes of violence (Holtfreter, 2005; Simpson, 2013).

Added to these numerous challenges, the fact that much cybercrime spans transnational borders—hence obscuring the traditional criminological notions of “place” or “space”—creates additional hurdles for scholars hoping to shed light on this growing phenomenon. Such trepidations notwithstanding, the application of theories originally intended to explain traditional “street” crimes have provided some important contributions to the extant literature base. Below, we review some of the more promising theoretical approaches to cybercrime, focusing our assessment on studies of offenders as well as victims. The strengths and weaknesses of each of these areas of research are also presented. Research on Victims Similar to what the data on white-collar crime have revealed, the available evidence regarding cybercrime suggests that there is no consistent “profile” of cybercrime victims. Indeed, the type of victimization varies widely according to the nature and scale of the crime itself. For example, cybercrimes may involve one offender and one individual victim (e.g., online harassment), one offender and several individual victims (e.g., phishing attempts directed at multiple email addresses), or in the case of the more severe data breaches and attacks, the offenders may consist of complex, criminal networks who first target organizational victims (i.e., a large multinational corporation and its secure data itself) and then, subsequently, its numerous individual clients whose personal and/or credit related information is compromised. The complexity of cybercrime victim-offender dyads presents considerable challenges to victimization research; some key issues are articulated in more detail below. For instance, unlike more traditional, direct contact forms of victimization (e.g., robbery), an individual who is the subject of cybercrime may not be aware of the criminal event until after notification from an organization, such as a bank, credit card company, or vendor. Indeed, this sequence of events is due to the fact that the target of cybercrime is not always the individual, but the individual’s personal information, which can then be


57


used or sold to perpetrate additional crimes (e.g., identity theft). Many of the details associated with the criminal incident, such as when and how access to personal information occurred, are often unknown to the victim. Subsequently, victim reporting to law enforcement, consumer protection agencies, or survey researchers is often difficult given the lack of information about the criminal even itself. These interrelated issues make victimization research a challenging endeavor. While those studying violent crime have at their disposal numerous official sources of publicly available data (e.g., the National Crime Victimization Survey and the National Longitudinal Study of Adolescent Health), there is no comparable longitudinal data source on cybercrime in the United States. Likewise, the Crime Survey for England and Wales (formerly known as the British Crime Survey) excludes fraud and cybercrime, although efforts to address this limitation in future surveys are underway (Office for National Statistics, 2014). In the United States, at least two government sources of national data have provided insights into various forms of cybercrime reported by consumers: the Internet Crime Complaint Center (IC3) and the Federal Trade Commission (FTC). The IC3, a partnership between the Federal Bureau of Investigation (FBI) and National White Collar Crime Center (NW3C) receives Internet-related crime complaints, and refers them to legal authorities for further action. The IC3 also routinely compiles data on cybercrime, and releases this information to the general public. Similarly, the Federal Trade Commission (FTC) provides national and state-by-state data on consumer-based crimes, including fraud, identity theft, and other offenses committed online (FTC, 2015). While both of these rich data sources provide important information to law enforcement, unfortunately they tend to lack theoretical variables known to predict victimization (e.g., risky lifestyle measures) and have rarely been utilized by criminologists. The uniqueness of cybercrime and the associated limitations regarding available data have resulted in some creative approaches by victimization researchers. The dominant approaches employed by survey researchers

take one of two forms: general population studies (e.g., national studies) or studies of specific groups (e.g., college students and the elderly). The former have allowed scholars to test theory and estimate rates of cybercrime targeting and victimization, and have also been useful in identifying segments of the general population that may be at increased risk (Holtfreter, Reisig, & Blomberg, 2006; Reisig, Pratt, & Holtfreter, 2009). The latter have also been particularly beneficial in generating results that can then be used to develop population-specific crime prevention strategies (Reisig & Holtfreter, 2013). For example, a recent study of older adult Internet users revealed that risky purchasing behavior—an activity that is influenced by low selfcontrol—increases the probability of identity theft victimization (Holtfreter, Reisig, Pratt, & Holtfreter, 2015). The findings from this study add to the empirical support for the integrated low self-control/risky lifestyles perspective, and also imply that older Internet users can reduce their risk of identity theft by reducing online risky behaviors. While the available research on victims of cybercrime has revealed some important findings, efforts have almost exclusively focused on consumers as individual victims. A glaring omission in the study of cybercrime victimization is the lack of attention given to organizational victims of cybercrime. This oversight is not intentional; rather, it simply reflects the difficulties inherent in this area of study. We return to this issue in our discussion of future research directions. Research on Offenders While the research on cybercrime victimization has produced some noteworthy findings and provided some critical insights, research on offenders has unfortunately not advanced at a comparable pace. The available statistics on the prevalence of cybercrime have largely been drawn from government agency sources on victim complaints, while details on loss estimates are often culled from single albeit large scale cyberattacks (e.g., the recent Target data breach). In the literature on traditional offending, researchers have long relied on offender self-reports


58


to get at the “dark figure” of crime, i.e., offenses unknown to the police and other official agencies. Efforts to reach cybercrime offenders have been more limited, largely due to the complex nature of cybercrime itself. After all, the organized criminal networks likely responsible for the lion’s share of cybercrime have remained undetected by law enforcement; as such, there is little hope for social scientists seeking access to these obscure populations. To further understand cybercrime and develop evidence-based prevention strategies, the gap in research on offending must be addressed.

offenses that may be connected to other potentially devastating crimes (e.g., terrorism). The potential for these online offenses to be “connected” to other forms of crime creates a complicated problem for those tasked with enforcing laws and regulations related to cyber activity. As addressed in the discussion section, the use of cutting-edge methodological approaches could help shed light on the potential networks of cybercrime offenses, offenders, and victims.

One area of offending research which has generated some insight into specialized types of cybercrime is the growing body of scholarship focused on online harassment, cyberstalking, and related forms of digital activities that may be more accurately described as deviant, rather than criminal (e.g., “sexting,” consensual participation in online pornography). The bulk of this research has used samples of college students, the population that is primarily affected by these specific types of online behaviors (Reyns, Henson, & Fisher, 2014; 2011; Seigfried-Spellar & Treadway, 2014). While these kinds of online activities undoubtedly cause considerable emotional distress to intended victims, and are also of great concern to universities charged with monitoring and disciplining student behavior, they do not carry the associated widespread financial harm that is of the utmost concern to legal officials. The bulk of this work has been informed by RAT and self-control theories, and the results to date largely conform to theoretical expectations, which speaks to the generality and breadth of these theories.

Cybercrime Policy As discussed earlier in this article, RAT is an appealing perspective because it has direct policy implications in the form of situational crime prevention. Many criminological theories rely on an implicit understanding of offender motivation in developing deterrence strategies. By comparison, a related advantage of RAT is that it need not account for offender motivation; as such, the lack of available data on offenders does not necessarily hinder law enforcement’s response to cybercrime. Put differently, RAT suggests that crime can be deterred through the manipulation of features in the offending environment (Newman & Clarke, 2003). Whether online or offline, then, environmental features can be altered to decrease the anticipated payoff of the crime and simultaneously increase the efforts it takes to accomplish it. In the context of cybercrime, deterrence strategies should primarily focus on increasing capable guardianship. We return to the benefits of RAT later this section. However, it is important to first examine existing legislation. Given the transnational reach of cybercrime, we focus largely on national and international efforts.

Taking the lead from decades of qualitative research on deviant street networks, scholars of cybercrime would be well advised to conduct detailed interviews with convicted cybercriminals. As a preliminary step in this direction, a recent, innovative study by Holt and colleagues (2015) analyzed posts from participants in English and Russian web forums selling stolen data. To the extent that such forums are accessible by researchers, this type of analysis could also provide insight into online

The rapid advancement of technology associated with cybercrime means that legislation must account for unfamiliar forms and subsequent outcomes of crime. While existing laws can be applied to contemporary cybercrimes, many are largely inadequate. Specifically, motives for cybercrime often include the acquisition of intangible objects, such as personal information or data. Existing laws typically do not account for crime that is associated with information-generating crimes; as such,


59


they may be limited in providing the necessary level of capable guardianship that is required for effective deterrence. Given the current landscape of cybercrime and its particulars, newly designed legal measures are critical to combat and subsequently prevent cybercrime. The United Nations Office on Drugs and Crime (UNODC) for example, recently called for the proliferation of legal measures that address criminalization, international cooperation and Internet service provider responsibility to combat the growing threat of cybercrime (UNDOC, 2014). A number of steps have been taken to address the calls articulated by the UNODC, however, just as the nature of identifying and subsequently defining cybercrime and its actors presents a complicated account of the true nature of cybercrime, so too does the legislation that has been enacted to enforce these crimes. U.S. and International Responses to Cybercrime In the United States, computer related crimes are considered a federal crime. Punishments of federal crimes, as is the case with cybercrime, are informed by the United States Sentencing Guidelines (Marcum, Higgins, & Tewksbury, 2011). The growth of cybercrime victimization under these guidelines led to the enactment of several polices to address the growing threat of cybercrime in the U.S. Beginning in 1986, the U.S. passed the Electronic Communication Privacy Act (ECPA). The ECPA was enacted for the specific purpose of maintaining the privacy of users who access the Internet. Specifically, this act prohibited the unauthorized access of personal networks and the subsequent interception of data from those networks. The ECPA further specified the criminal and civil penalties for these offenses, which often include statutory charges and restitution of damages. Citing the continual growth and development of cybercrime in the U.S., legal methods began to transition to a deterrence framework through the increased punitiveness in the sentencing of cybercrime. Consistent with the philosophy of general deterrence, multiple pieces of legislation have been passed with the intention of toughening punishments for the various forms of cybercrime offenders. One of these, the Sarbanes-Oxley Act (2002), was specifically aimed at increasing the

penalties for white-collar offenders. The rationale for this shift lied in the belief that swift and harsh penalties would effectively deter criminals who use Internet technologies to victimize others. However, as we observed with other deterrence-based policy initiatives, the overall effects on rates of cybercrime have been minimal (Marcum et al., 2011). Most recently, legislative attempts to curb cybercrime in the U.S. have attended to the growing rate of identity theft. For example, the U.S. federal government recently enacted the Identity Theft Assumption and Deterrence Act in 1998, which specifically addresses the sentencing of criminals who use the Internet to obtain the personal information of victims; primarily to be used for financial exploitation (Holtfreter & Holtfreter, 2006; Holtfreter, Reisig, Pratt, & Holtfreter, 2015). As of 2013, all of the states in the U.S. have enacted statutes against identity theft (Morton, 2013). As is the case with offline crime, then, the enactment of new legislation often follows public concern and fear over growing “new” offenses. Beyond the context of the U.S., the rapid growth of identity theft appears to be of primary concern to legal authorities. While other forms of cybercrime, like piracy and human trafficking continue to be prominent threats, recent data breaches suggest a movement towards organized, criminal involvement in financial exploitation using the stolen identities of victims. Global responses to these growing threats are aided by the United Nations (UN). As early as the 1990s the UN promulgated policy discussions on controlling cyberspace and the inherent threat of cybercrime. At the World Summit on Information Society (WSIS), the United Nations sought to develop a comprehensive response to cybercrime by targeting the investigative methods, jurisdictional permeation, and international cooperation required to combat cybercrime. The WSIS was implemented in two phases. First, a global conference was held in Geneva, Switzerland in 2003. The first phase of the WSIS


60


included representatives from over 175 different counties who were committed to a global plan focused on increasing transnational cooperation through security awareness and the enactment of legislation (World Summit on Information Society, 2003). The second phase of the WSIS took place in Tunis, Tunisia in 2005. The original goals of the first phase of WSIS were refined to produce a plan of action to address the growing threat of cybercrime and Internet security (World Summit on Information Society, 2005). The plan included solutions that addressed information sharing in the developing world. This type of comprehensive response to cybercrime is in line with RAT because at a very basic level it reduces the opportunities available to motivated offenders through increased guardianship. The U.N. continues to advance the goals of the WSIS, with specific emphasis on sustainability of the cyber environment. Citing the growing threat of organized criminal groups involved in cybercrime, the United Nations Office on Drugs and Crime (UNODC) advocates for effective international cooperation in real time via information sharing technologies. To address the growing threat, the UNODC developed the U.N. Convention Against Transnational Organized Crime. Through an international conference with key stakeholders, the UNODC promotes the use of technology and collaboration between “experts and institutions which have already developed and delivered tools and/or training to combat cybercrime” (United Nations Office on Drugs and Crime, 2013). Recent resolutions that have been adopted by the UNODC center on providing technical, legislative and capacity building assistance for combating cybercrime. This approach—at least on its face—is promising in that it appears to be providing at least a minimal level of capable guardianship. Major emphasis is placed on providing this assistance to developing countries, where the rate of Internet growth exceeds that of developed countries and where capable guardianship is limited. Again, the concurrent growth of organized criminal activity in these countries, according to the UNODC (2013) requires comprehensive approaches, which combine crime prevention and cyber security at a transnational

level. While it is impossible to measure general deterrence (i.e., we can never know the number of potential offenders who might have been influenced not to commit a crime), a comparison of pre- and postUNODC rates of detected cybercrime might shed some light on the effectiveness of the new strategies. Policing Cybercrime The continued growth of cybercrime coupled with the increasing involvement of organized criminal groups requires new cybercrime laws that address “investigative measures, jurisdiction, electronic evidence and international cooperation” (UNODC, 2013, p. 51). The transnational nature of cybercrime require both substantive and investigative jurisdictional changes to the online environment that reduce opportunities for motivated offenders. Accordingly, these transnational cyber threats should be addressed through a central authority, such as the U.N., in order to develop criminal laws that can be consistently applied between nations. In the end, this would facilitate international investigative efforts by providing resources and centralized information. The transnational nature of cybercrime in today’s society requires extensive legal maneuvers that can be very costly. There are, however, a number of security measures already in place that can be used to address and subsequently prevent cybercrime through a reduction in offender opportunities by way of target hardening. Internet users and Internet Service Providers (ISPs) are each a source of capable guardianship in combatting cybercrime. At the very basic level, individual Internet users can prevent cyber-victimization through the installation of software that restricts access to personal information. Another common measure that has been used to control cyber activity has been the use of moderators who monitor the activity of a certain online environment, such as a website or chat room. Sanctions applied by moderators in online environments are relatively minor. These sanctions are traditionally limited to temporary or permanent removal from the environment. The monitoring of online environments by


61


moderators, however, does increase the likelihood of detection of illegal activity that can then be used by law enforcement agencies whom possess legal power to pursue investigations. A more advanced level of cyber security that could be used involves network infrastructure providers. Specifically, ISPs can influence the behavior of users—and subsequently, the virtual environment—via contractual governance provided by terms and conditions of Internet use (Wall, 2007). In addition, they are able to employ software infrastructures that limit cyber-offending opportunities, such as system firewalls and spam filters.

statistics, we presented some of the more promising theoretical approaches to cybercrime, highlighting the extant research that has applied these theories to empirical research on offenders and victims. Similarly, we outlined national and international legislation governing cybercrime, with particular attention to the strengths and weaknesses of these approaches. Taken together, the research and policy efforts examined here provide a meaningful point of departure for scholars and practitioners moving forward in the fight against international and transnational cybercrime. It is toward future directions that we now turn.

There are also non-governmental interest groups who play an important role in the enforcement of cybercrime. For example, the Internet Watch Foundation (IWF) monitors online activity through an established hotline where users can report criminal activity. The IWF works with Internet service providers in the United Kingdom and local police and will report criminal activity by informing the Internet service provider under which the offense occurred. In addition, the IWF maintains a network of communication in other jurisdictions where appropriate legal action can be taken. The growing trend of non-governmental organization involvement in the enforcement of cyber activity is consistent with the calls from the United Nations to improve the international cooperation to address the growing threat of cybercrime. While police play a role in the enforcement of cyber activity, it is relatively minor. Efficient enforcement of cyber activity can only be enabled through the international cooperation of the actors described above. These relationships can then be facilitated through global initiatives such as international conferences promoted by the United Nations. Consistent with RAT, we would argue that proactive opportunity-reduction and target hardening strategies are likely more effective at achieving situational crime prevention.

Future Research Apart from a small number of noteworthy exceptions, much of the theoretically-informed research on cybercrime has been tested using data from a single country. However, it is important to note that the available international work on cybercrime has largely confirmed findings from the United States, a fact that speaks to the generality of the theories tested and the phenomena at hand (van Wilsem, 2011; Williams, 2015). The international and transnational reach of cybercrime highlights the need for research that incorporates data from multiple countries, which would generate cross-cultural comparisons. Although comparative work is obviously quite time consuming, research collaborations between cybercrime scholars in multiple countries would be a much needed addition to the literature. We also point out that cybercrime researchers need not reach beyond their own countries to generate meaningful collaborations. Cross-disciplinary research, such as work that blends criminology and the more applied computer sciences, would also add to our understanding of cybercrime. Although cybercrime has clearly been of interest to computer science and related fields, results produced by such studies have been largely descriptive, lacking a theoretical base. RAT and related perspectives drawn from criminology, coupled with the sophisticated technological approaches of computer science, could shed more light on cybercrime.

Future Directions As noted at the outset, our intent here was to provide an overview of the research and policy challenges associated with the myriad forms of cybercrime. Against the backdrop of recent and troubling cybercrime


62


Most theoretical applications to victimization have focused on individual victims of cybercrime; this population is arguably more accessible to social scientists relying on survey research methods. The focus on individuals has left a void in our understanding of the organizations victimized by cybercrime. While the media have called attention to attacks against large, multinational retailers, financial institutions, and even governments, little is known about the factors—apart from compromised security—that may put these companies at risk. What is more, we know even less about small, privately held businesses or nonprofit entities. Given the white-collar crime research suggesting that the effectiveness of control mechanisms and prevention efforts vary by organizational type, a goal of cybercrime research should be the advancement of scholarship on organizational victims (Holtfreter, 2004).

experience of having their private and deeply personal information stolen. The current review has only briefly scratched the surface with regard to the diverse forms of cybercrime and the myriad challenges associated with researching and policing what has become the dominant crime of the new millennium. Open discourse such as the approach undertaken here is an important first step in encouraging further research. Moving forward, a next critical step is the development and refinement of policy and practice that also attends to the theoretically informed efforts discussed here.

Some promising methodological approaches commonly used in other crime contexts could also provide valuable insights into cybercrime. White-collar crime researchers, for example, responded to moderate advances in recent research by calling for a wider-range of methodological procedures to uncover the true nature of white-collar offending (for discussion see Simpson, 2013). One route that has been revitalized has been the application of social network analysis (SNA). Of particular advantage over other forms of analysis, SNA links individual and organizational level actors in a network based on their interdependent relationships and ties (Simpson, 2013; Wasserman & Faust, 1994). This approach has been subsequently used to examine the growing trend of cybercrimes orchestrated by organized criminal groups. This, and other theoretically driven research efforts should be the focus of future research on cybercrime. Conclusion In the end, there is consensus that cybercrime is associated with considerable financial losses to individuals, organizations, and governments around the globe. Even when monetary losses are partially or fully recovered, many victims remain emotionally traumatized by the The Norwich Review of International and Transnational Crime, 2015 Edition

63

References Center for Strategic and International Studies. (2014). Net losses: Estimating the global cost of cybercrime. Washington, DC: McAfee, Inc. Choo, K-K.R. (2011). The cyber threat landscape: Challenges and future research directions. Computers & Security, 30, 719-731. Cohen, L.E., & Felson, M. (1979). Social change and crime rate trends: A routine activity approach. American Sociological Review, 52, 170-183. Federal Trade Commission (2015). Consumer sentinel network databook for January-December 2014. Washington, DC: Federal Trade Commission. Finklea, K.M., & Theohary, C.A. (2012). Cybercrime: Conceptual issues for congress and US law enforcement. Washington, DC: Congressional Research Service, Library of Congress. Gottfredson, M.R., & Hirschi, T. (1990). A General Theory of Crime. Stanford, CA: Stanford University Press. Holt, T.J., Smirnova, O., Chou, Y.T., & Copes, H. (2015). Examining the risk reduction strategies of actors in online criminal markets. Global Crime, 16, 81-103. Holtfreter, K. (2005). Is occupational fraud ‘typical’ white-collar crime: A comparison of individual and organizational characteristics. Journal of Criminal Justice, 33, 353-365. Holtfreter, K. (2004). Fraud in U.S. organizations: An examination of control mechanism. Journal of Financial Crime, 12, 88-95. Holtfreter, K., Reisig, M.D., & Blomberg, T.G. (2006 Consumer fraud victimization in Florida: An empirical study. St. Thomas Law Review, 18, 761-789. Holtfreter, K., Reisig, M.D., & Pratt, T.C. (2008). Low self-control, routine activities, and fraud victimization. Criminology, 46, 189-220. Holtfreter, K., Reisig, M.D., Pratt, T.C., & Holtfreter, R.E. (2015). Risky remote purchasing and identity theft victimization among older Internet users. Psychology, Crime & Law, 21, 691-698. Holtfreter, K., VanSlyke, S., & Blomberg, T.G. (2005). Sociolegal change in consumer fraud: From victim-offender interactions to global networks. Crime, Law, & Social Change, 44, 251-275. Holtfreter, R.E., & Holtfreter, K. (2006). Gauging the effectiveness of US identity theft legislation. Journal of Financial Crime, 13(1), 56-64. International Telecommunications Union. (2015). ICT facts and figures, 2014. Geneva, Switzerland: ICT Data and Statistics Division Telecommunication Development Bureau, Telecommunication Development Bureau. Kigerl, A. (2012). Routine activity theory and the determinants of high cybercrime countries. Social Science Computer Review, 30, 470-486. Marcum, C. D., Higgins, G. E., & Tewksbury, R. (2011). Doing time for cybercrime: An examination of the correlates of sentence length in the United States. International Journal of Cyber Criminology, 5, 825-835. Morton, H. (2013). Identity theft legislation, 2013. Denver, CO: National Conference of State Legislators. Newman, G.R. & Clarke, R.G.V. (2003), Superhighway robbery: Preventing e-commerce crime. London, UK: Willan. Office for National Statistics (2014). Crime in England and Wales, year ending June 2014. London, UK: Office for National Statistics. Ortner, D. (2015). Cybercrime and punishment: The Russian Mafia and Russian responsibility to exercise due diligence to prevent trans-boundary cybercrime. Brigham Young University Law Review, Forthcoming. The Norwich Review of International and Transnational Crime, 2015 Edition

64

Pratt, T.C., Holtfreter, K., & Reisig, M.D. (2010). Routine online activity and internet fraud targeting: Extending the generality of routine activity theory. Journal of Research in Crime & Delinquency, 47, 267-296. Reisig, M.D., & Holtfreter, K. (2013). Shopping fraud victimization among the elderly. Journal of Financial Crime, 20, 324-337. Reisig, M.D., Pratt T.C., & Holtfreter, K. (2009). Perceived risk of internet theft victimization: Examining the effects of social vulnerability and impulsivity. Criminal Justice & Behavior, 36, 369-384. Reyns, B.W. (2013). Online routines and identity theft victimization: Further expanding routine activity theory beyond direct-contact offenses. Journal of Research in Crime & Delinquency, 50, 216-238. Reyns, B.W., Henson, B., & Fisher, B.S. (2011). Being pursued online: Applying cyber lifestyle-routine activities theory to cyberstalking victimization. Criminal Justice & Behavior, 38, 1149-1169. Reyns, B.W., Henson, B., & Fisher, B.S. (2014). Digital deviance: Low self-control and opportunity as explanations of sexting among college students. Sociological Spectrum, 34, 273-292. Rossi, P.H., & Berk, R.A. (1985). Varieties of normative consensus. American Sociological Review, 333-347. Siegfried-Spellar, K.C., & Treadway, K.N. (2014). Differentiating hackers, identity thieves, cyberbullies, and virus writers by college major and individual differences. Deviant Behavior, 10, 782-203. Simpson, S.S. (2013). White-collar crime: A review of recent developments and promising directions for future research. Annual Review of Sociology, 39, 309-331. United Nations Office on Drugs and Crime. (2013). Comprehensive Study on Cybercrime. Vienna, Austria: United Nations Office on Drugs and Crime. van Wilsem, J. (2011). Worlds tied together? Online and non-domestic routine activities and their impact on digital and traditional threat victimization. European Journal of Criminology, 8, 115-127. Wall, D. S. (2007). Policing cybercrimes: Situating the public police in networks of security within cyberspace. Police Practice and Research, 8, 183-205. Wasserman, S. & Faust, K. (1994). Social Network Analysis: Methods and Applications. New York, NY: Cambridge University Press. Williams, M.L. (2015). Guardians upon high: An application of routine activities theory to online identity theft in Europe at the country and individual level. British Journal of Criminology. Advance online publication. doi: 10.1093/bjc/azv011. World Summit on the Information Society. (2003). Final report of the Geneva phase of the WSIS, 2003. Geneva, Switzerland: International Telecommunication Union. World Summit on the Information Society. (2005). Final report of the Tunis phase of the WSIS, 2005. Tunis, Tunisia: International Telecommunication Union.


65

About the Author Kristy Holtfreter* is an Associate Professor and Director of Graduate Programs in the School of Criminology and Criminal Justice at Arizona State University. She earned her Ph.D. and M.S. degrees at Michigan State University and B.A. at the University of Washington. Her research interests include financial crime, gender and crime, and criminological theory. Her research on white-collar crime and fraud victimization has appeared in a variety of scholarly journals, including Criminology, Journal of Research in Crime & Delinquency, Criminal Justice & Behavior, Psychology, Crime, & Law, and the Journal of Financial Crime. She is the Principal Investigator on a United States Department of Health and Human Services funded grant examining scientific research misconduct among a nationally representative sample of tenured and tenure track faculty in the natural and social sciences, and recently completed a three-year, National Institute of Justice funded study on financial exploitation of the elderly in Arizona and Florida. She is the author of Gender, Crime, and Justice (Oxford University Press, forthcoming). She is currently serving as a technical review panelist for the National Crime Victimization Survey (NCVS) redesign efforts, is a member of the Stanford University Financial Fraud Research Center’s Fraud Taxonomy Work Group, and recent participant in a National Academy of Sciences panel examining the role of science in corporate crime theory, policy, and practice. Travis J. Meyers is a doctoral student in the School of Criminology and Criminal Justice at Arizona State University. He earned his M.S. degree in Criminology and Criminal Justice at Arizona State University and B.S. degree in Sociology, with a minor in Criminal Justice, at the University of Wisconsin-La Crosse. His master’s thesis involved the use of meta-analytic techniques to determine the relative and absolute stability of self-control. Travis is currently serving as a research assistant on the Arizona Department of Corrections Mental Health and Restrictive Housing Program evaluation. In 2014, he received the Outstanding Student Paper Award from the White-Collar Crime Research Consortium. His research interests include social network analysis, drug policy, criminological theory, white-collar crime, and offender reentry. *Direct all correspondence to Kristy Holtfreter (Email: [email protected], Phone: (602) 496-2344, Fax: 602-496-0045). School of Criminology and

66

7

A Case Study on Eurasian Organized Crime Groups Recently Indicted In New York

Jennifer Brooke Marshall


I. Introduction Transnational Organized Crime (TOC) is a growing concern among governmental agencies tasked with investigating and prosecuting these criminals and their organizations. These entities are far reaching in their criminal activity, spanning multiple countries and involving many different players.

enforcement for decades. Originally, the main organized crime threat to the United States was from the Italian-American Mafia, known as La Cosa Nostra (LCN). But, with the increase of globalization in today’s economy, it has become much easier for criminal groups to work internationally, necessitating the implementation of new investigative strategies.

This case study focuses on two Eurasian Organized Crime (EOC) groups recently indicted in the United States. The study begins by evaluating the problem of transnational crime and why it is important to neutralize these organizations. Next, the study briefly examines the history of Russian and Eurasian Organized Crime. This is followed by a brief introduction of the case, as well as an evaluation of each organization involved and the leaders indicted. Further, the study looks at how the Federal Bureau of Investigation (FBI) investigated these organizations, the techniques they used, and the charges ultimately filed against those involved. Thereafter, the study evaluates the current status of the case and its impact on the organizations. Finally, the study concludes by discussing the impact these organizations have on American society and lessons learned from these and similar investigations and prosecutions.

Law enforcement agencies often employ investigative tools such as electronic surveillance, criminal informants, wiretaps, witness protection programs and charge violations of racketeering and money laundering statutes to combat organized crime. The goal is to dismantle each organization, but there is difficulty in investigating crimes that have such a global scheme. When the crime is only in one country (such as a gang located in the U.S.) the agencies involved are typically located in the same area or within a reasonable distance from each other. In transnational cases, the law enforcement agency could be investigating one conspirator in the United States talking to another conspirator in Russia. Additionally, with the widespread access to the Internet, organized crimes can go untraced for years before law enforcement is alerted.

We express appreciation to the New York Field Office of the FBI for facilitating research on this investigation. II. Transnational Crime Generally Transnational organized crime has become a higher priority for government agencies over the last decade with new laws, strategies, committees, and councils created to combat the problem. However, TOC has presented problems for law

The White House, the Department of Justice (DOJ), the FBI and other governmental agencies are working together to create a plan to combat the problem. Special attention of TOC groups evolved with the increased advancements of technology, which allow criminals to communicate between cities, states, and countries more easily. Criminals can now interact through email, text messaging, Skype, cell phones, and websites.


68

A Case Study in Eurasian Organized Crime Groups Recently Indicted in New York

Additionally, these groups have progressed from a hierarchical structure to looser networks making them more fluid and evasive, thus more difficult to detect (Ott, 2012). Instead of being involved in one criminal activity, these groups are often engaged in multiple criminal activities simultaneously while law enforcement organizations are divided to investigate by type of crime. Thus, one seemingly independent crime, such as a fraudulent money transfer, could be connected to a loosely run, larger criminal enterprise, making it much more difficult for agencies to uncover the entire racketeering scheme. While TOC is not a new issue, government agencies in the United States agree that these TOC groups pose a significant threat to the country (Ott, 2012). Specifically, the United States has found the evolution of TOC to be a serious threat to national security. A report by the Office of the Director of National Intelligence published in January 2010 found that “Transnational organized crime…groups are threatening U.S. interest by forging alliances with corrupt government officials, destabilizing political institutions in fragile states, undermining competition in key world markets, perpetrating extensive cybercrimes and sophisticated frauds, and expanding their narco-trafficking and illicit smuggling networks” (Ott, 2012). The report also found that the nexus between these organized crime groups and terrorists “presents continuing dangers because terrorists and insurgents use criminal networks for logistical support and funding” (Ott, 2012). Furthermore, these criminals have become more intelligent in the wide-range of crimes they commit, including, but not limited to, sophisticated frauds, public corruption, cybercrime, narcotics trafficking, alien smuggling, violence,

counterfeiting, money laundering, and even the facilitation of terrorism. In the United States, the crimes cultivated by these groups often involve fraud schemes, or money laundering. These people are highly educated, sophisticated, and well-connected to wealthy individuals. They can hire the best accountants and lawyers, and they can bribe the right officials to work with them. The millions of dollars they are able to steal and launder make them a significant threat to American society. III. Threat of Russian/Eurasian Organized Crime Russian Organized Crime (ROC) groups existed long before the world caught on to organized crime as a problem. Many people think of the Russian mafia or mob when they hear the words “Russian” and “organized crime.” However, the mafia is not the only organized crime threat present, and now the world sees the dangers of both Russian and Eurasian groups. Eurasian and Russian organized crime groups are essentially synonymous with the distinction coming from the member’s origins. Traditionally, members of ROC groups were from Russia, whereas Eurasian groups’ members are from the former Soviet Union. Thus, instead of EOC members being located only in Russia, they can be from other countries such as Armenia, Azerbaijan, Belarus, Estonia, Georgia, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan (Federal Bureau of Investigation). Organized crime groups in Russia are not as highly-structured as groups such as the La Cosa Nostra group located in the United


69


States, but they are just as much of a threat. The threat existed well before the 21st century, dating back to the rule of Joseph Stalin. The problem with ROC is that many Russian government officials and powerful people are involved in these criminal organizations. Some leaders receive the “Vor” title, which allows them to exercise authority over lower-level members. The “Vory V Zakone” or “thieves-in- law” were created when criminals banded together in the Soviet prison system to profit and support one another (Federal Bureau of Investigation). Being considered a thief-in-law gives substantial power to someone in Russia. Thus, when the Soviet Union collapsed in 1991, these criminals filled the power vacuum in Russia by aligning with public officials to buy the control of private industries; a free market then emerged and expanded to other parts of the world (Federal Bureau of Investigation). EOC groups have no defined structure and, in many cases, groups of people involved are from the same city or country engaging in criminal activity together. The activity of these criminals, such as the conversion of private industry into criminal enterprise and corrupting of government officials, threatens to destabilize the economy in the former Soviet Union. This is threatening to the rest of the world as the former Soviet Union still retains deployed nuclear weapons. IV. Intro of The Case In April 2013, the FBI announced the unsealing of an indictment charging 34 alleged members and associates of two RussianAmerican Organized Crime Enterprises—the Taiwanchik-Trincher Organization and the Nahmad-Trincher Organization—with operating international sports books and laundering more than 100 million

dollars. These groups ran high-stakes operations that catered to wealthy gamblers in the United States, Russia, and the Ukraine. Each enterprise had principal leaders located in cities like New York City, Los Angeles, Moscow, and Kiev. Their main purposes were to enrich the leaders through gambling, money laundering, extortion, and other crimes; preserve and augment the power, territory, and financial profits of the enterprise through intimidation, violence and threats of physical and economic harm (Taiwanchik-Trencher only); and to avoid detection through illegal conduct. While each organization conducted its business independent of the other, the two share certain members and associates. These two groups, while distinct, conducted the same scheme by laundering money gained through illegal gambling businesses. The money was routed through shell companies and bank accounts located in different parts of the world. Some money was even invested through additional shell companies in the United States in seemingly legitimate investments like hedge funds or real estate. V. The Organizations A. Taiwanchik-Trincher Organization The Taiwanchik-Trincher Organization is an international criminal organization with strong ties to Russia and Ukraine. It went undetected by U.S. authorities for several years prior to the investigation that produced the recent racketeering charges, dating back to 2006. The alleged leaders of the organization are Alimzhan Tokhtakhounov, a.k.a “Taiwanchik,” Vadim Trincher, a.k.a “Dima,”


70


and Anatoly Golubchik, a.k.a “Tony,” who are charged with the conspiracy to run an illegal sports book operation. In this operation, the leaders took bets from clients on sporting events like soccer and NBA games. The leaders then laundered the money by moving it through shell companies from Russia to Cyprus and from Cyprus to the United States. Specifically, the money was wired from the clients in Ukraine and Russia directly to the shell companies or collectors who subsequently wired the money to the shell companies in Cyprus. Once the money reached Cyprus, it was sent to either Tokhtakhounov in Russia or Trincher and Golubchik in the United States (J. Penza, personal communication, Mar. 17, 2015). In addition, money was transferred from the United States to Cyprus and on to Russia and Ukraine. Tokhtakhounov is a “Vor,” and he allegedly used this title to resolve disputes that arose within the illegal gambling enterprise. This organization used threats of violence and economic harm in order to obtain unpaid gambling debts of clients (J. Penza, personal communication, June 04, 2015). Having someone like Tokhtakhounov as a leader gave the group a significant advantage. His status as a “Vor” and connection with the other “thieves” could be used as to intimidate others into paying their debts. For example, clients would be intimidated into paying their debts just by the knowledge that Tokhtakhounov was involved in the enterprise. As of June 2013, Tokhtakhounov was still residing openly in his Moscow mansion despite the United States charges pending against him (Kramer and Glanz, 2013). In addition to the charges pending against him for his involvement in the Taiwanchik-Trincher

Organization, he is also charged with fixing figure skating competitions in the 2002 Salt Lake City Olympics. Federal authorities have been pursuing Tokhtakhounov for over a decade, but his current residence in Moscow makes it difficult because the United States does not have extradition with Russia. Vadim Trincher currently lives in New York City and is a former World Poker Champion having won the World Poker Tour Foxwoods Poker Classic in 2009. According to the indictment, Trincher oversaw the organization’s illegal sports gambling business. Additionally, the racketeering conspiracy also involved extortion, money laundering, and interstate and foreign travel or transportation in aid of the racketeering enterprise. According to the indictment, Anatoly Golubchik worked with Vadim Trincher to oversee the sports gambling business and directed the organization’s sophisticated laundering operations, which involved tens of millions of dollars. The organization had leaders here in America and also had leaders located in Ukraine that helped to operate the business. Furthermore, mid-level members of the organization, Michael Sall and Stan Greenberg, helped to launder the money in the United States. B. Nahmad-Trincher Organization The Nahmad-Trincher Organization is an international criminal organization with leadership in New York City and Los Angeles. The leaders of the organization are Illya Trincher, Hillel Nahmad, a.k.a. “Helly,” and Noah Siegel, a.k.a. “The Oracle.” This organization ran an illegal high-stakes gambling business that catered to multimillionaire and billionaire clients in the United States, Taiwan,


71


Ukraine, and Russia. According to the indictment, the leaders used online gambling websites operated in the United States to place bets, and laundered the money through United States bank accounts, a plumbing company obtained from a client to pay a gambling debt, and other seemingly legitimate businesses. According to the indictment, Nahmad and Illya Trincher led the enterprise and laundered tens of millions of dollars. Illya Trincher, the son of Vadim Trincher, has strong ties to the poker world, and he allegedly oversaw the high-stakes gambling business of the Nahmad-Trincher Organization. Nahmad comes from a well-known family in the art world, and he operates the Helly Nahmad Gallery located in the Carlyle Hotel in New York City. His family owns one of the most influential art collections in the world. Comprised of mostly 19th and 20th century artwork, it has an estimated net worth of three billion dollars (Boucher, 2014). The Helly Nahmad Gallery allegedly financed the organization along with Nahmad’s father, a billionaire art dealer in Europe, and an investment firm called JH Capital, Inc. Nahmad is known to have connections with wealthy clients, including Leonardo DiCaprio, and is accused of recruiting these wealthy celebrities and individuals to become clients of the illegal sportsbook business. According to the FBI, Illya Trincher and Nahmad were the main financiers of the illegal business, but the alleged third leader, Noah Siegel, played a significant role as well. Siegel, who is considered a “sharp” in the gambling world, is really good with numbers (J. Penza, personal communication, June 04, 2015). Allegedly, he received a three percent profit and was responsible for determining

the odds, lines, which sides to take bets from, where to off load bets and when to place bets elsewhere (J. Penza, personal communication, June 04, 2015). Although Illya Trincher, Nahmad, and Siegel are considered the leaders of the organization, many other alleged co-conspirators were charged in the indictment with participating in the financial aspects of the business. Furthermore, a unique aspect of the Nahmad-Trincher’s Organization is the type of money used within the business. Not only were people paid in cash, but also virtual money and casino chips, which further concealed just how much money was laundered and used in this conspiracy (J. Penza, personal communication, June 04, 2015). When money is paid in on-line sports credits, through things like bitcoin, or in casino chips, it is undetectable and more difficult to track since it does not go through banking systems. Bitcoin is a form of virtual currency that first arose in 2009. It does not have any legal tender and is controlled by the programmers that issue it, not a governmental system. The Nahmad-Trincher Organization used its leaders’ connections within the poker, art, and gambling worlds to cater to celebrities, professional poker players, and wealthy individuals within the financial industry. Bets were placed on sporting events and contests and clients were extorted. For example the indictment states, Illya Trincher, Hillel Nahmad, Noah Siegel, and other members involved in the conspiracy were alleged to have collected an unlawful debt of $2,000,000 around 2010 from an unidentified “client three” by acquiring a fifty percent stake in the individual’s plumbing company. The indictment further alleges that the plumbing company was then used to launder money for the organization.


72


C. Conclusion These organizations were comprised of EOC members and associates with strong connections to the former Soviet Union. Each organization worked independent of the other, but the connections among the members allowed the Justice Department to charge them all under the same indictment (J. Penza, personal communication, Mar. 17, 2015). While Vadim Trincher played the role of leader in the Taiwanchik-Trincher Organization, his son, Illya Trincher, was a leader in the Nahmad-Trincher Organization. Leaders such as Golubchik and Siegel would talk on occasion as well as other members within each organization. The groups were highly decentralized. Thus, the illegal activity between the seemingly independent organizations overlapped through money laundering because of the connection with the leaders involved. VI. FBI’s Takedown The twenty-seven count racketeering indictment, which charged thirty-four defendants for involvement with the organizations, was the product of an investigation by the FBI’s Eurasian Organized Crime Squad in New York. This section begins by generally discussing background information on the FBI’s structure and the investigation of EOC, and concludes by discussing the techniques and tools used in the investigation of the Taiwanchik-Trincher and Nahmad-Trincher Organizations. A. FBI’s Structure and Investigation of Eurasian Organized Crime The FBI field office in New York has six divisions. One of those divisions is criminal which has a Transnational Organized Crime Squad, and within that squad is a Eurasian Organized Crime Squad.

The Eurasian Organized Crime Squad is known as a task force, which works in connection with the New York City Police Department to investigate EOC groups (J. Penza, personal communication, Mar. 17, 2015). A task force is a unit of agents specially organized for a task. The FBI has been heavily invested in investigating ROC and EOC for approximately 20 years, since it realized these groups were committing crimes in the United States. Specifically in the early 1990s, places like Brighton Beach in New York and San Francisco had problems with people from the former Soviet Union engaging in criminal activities (J. Penza, personal communication, Mar. 17, 2015). The FBI responded with task forces assigned to investigate these individuals and the organizations to which they were connected. Today, these task forces investigate crimes involving members of the former Soviet Union. According to the FBI website, there are squads focused on EOC in New York, Los Angeles, San Francisco, Miami, Philadelphia, Newark, and Chicago. In addition, the website states EOC groups are heavily involved in various frauds, including healthcare, auto insurance, and securities; money laundering; drug trafficking; extortion; transportation of stolen property, including autos; human smuggling; and prostitution. The FBI’s success comes, in part, from cooperation with other law enforcement, government, and international agencies. Additionally, the FBI cooperates with several international groups that work collectively together in an attempt to combat the domestic and international influence and impact of these EOC groups. Eurasian Organized Crime is a transnational problem that affects many different countries. One enterprise could impact multiple countries


73


with one pattern of racketeering, just as the Taiwanchik-Trincher and Nahmad-Trincher Organizations have in this case. B. FBI’s Investigation of the Taiwanchik-Trincher and NahmadTrincher Organizations The FBI’s EOC Squad began investigating the Taiwanchik-Trincher and Nahmad-Trincher Organizations around October of 2011 and indicted 34 individuals in April 2013. The investigation commenced because of confidential source information (J. Penza, personal communication, Mar. 17, 2015). This section will examine the tools used by the FBI, as well as the evidence uncovered regarding each organization, and conclude with a discussion of the success involved in investigating these groups. Particularly, the investigative techniques used to obtain evidence in these cases included search warrants of locations, emails, and phones to collect evidence involving the suspected crimes (J. Penza, personal communication, Mar. 17, 2015). Moreover, the FBI relied on criminal informants, conducted physical and electronic surveillance of suspects, subpoenaed phone and bank records, relied on connections with foreign agencies, and employed various supplementary techniques in organized crime investigations (J. Penza, personal communication, Mar. 17, 2015). It was these tools and tactics that allowed the FBI to uncover these transnational organizations. Taiwanchik-Trincher Evidence In this case, the FBI was able to use search warrants and wiretaps to uncover communications between the leaders of the TaiwanchikTrincher Organization. Phone calls revealed that Golubchik and

Vadim Trincher spoke to each other on a daily basis about their gambling operation. Additionally, they spoke to their bookies in the former Soviet Union who reported gambling lines on sporting events and bets placed in both the United States and abroad. There were also calls intercepted between Vadim Trincher, Golubchik, and Tokhtakhounov discussing these bets and the management and operation of the enterprise (Sentencing Memorandum, U.S. DOJ). Furthermore, wiretaps exposed telephone conversations where Tokhtakhounov used his status as a “Vor” and the threat of violence to collect the debts owed to the Taiwanchik-Trincher Organization. In addition, the search warrants and wiretaps revealed how Golubchik, Vadim Trincher, and Tokhtakhounov laundered the money into and out of the United States. Specifically, between 2006 and April 2013, Vadim Trincher, Golubchik, and Tokhtakhounov laundered approximately $100 million through at least six Cyprus shell accounts and approximately $50 million was moved into the United States. The gambling proceeds were invested in legitimate businesses to cover the illegality of the money. For example, the illicit proceeds could have been invested in real estate or concealed through companies like car dealerships. The FBI uncovered sophisticated criminal activity through searches of emails and bank accounts. For example, shell companies entered into loans and loan agreements with the betting clients when a payment came through in an attempt to conceal the illegal activity. The Taiwanchik-Trincher Organization used this obfuscation tactic to make the large bets look like legitimate investments. The bets ranged from tens of thousands of dollars to hundreds of thousands of dollars. Cash payments that were wired to shell accounts or


74


directly wired from the client to the shell accounts provided an avenue to launder money. Once the money was in the shell accounts, it was wired directly to Tokhtakhounov or through intermediaries into the United States (J. Penza, personal communication, June 04, 2015). Nahmad-Trincher Organization The FBI’s investigation also uncovered the illegal operations of the Nahmad-Trincher Organization’s business’ activity from around 2006 to April 2013. Evidence confirmed that Nahmad and Trincher were the main financiers of the enterprise. Specifically, bank records and other subpoenaed documents showed that approximately 12 million dollars was sent from Nahmad’s family’s Swiss bank account to promote the gambling business between 2010 and February of 2013 (Sentencing Memorandum, U.S. DOJ). Additionally, records showed that Pinnaclesports.com was a dominant tool used by the organization to operate the illegal gambling enterprise as well as HMS Sports, which was controlled by co-defendant Noah Siegel. HMS Sports was used to pay other bookies, betters, employees, leaders, Pinnacle Sports, and for wire transfers. In addition to laundering money and concealing it within these organizations, the leaders also paid members in virtual currency by giving them on-line sports credits and casino chips. The wiretaps and search warrants also uncovered independent crimes committed by the leaders of these organizations. For example, there were telephone conversations where Trincher and Nahmad were working separately to take bets to have a larger profit margin (Sentencing Memorandum, U.S. DOJ). This exemplifies the

flatter, less rigid organization characteristic of organized crime groups today. Unlike the American mafia, where there is a clear hierarchy and leader, these groups often involve a web of flexible, opportunistic interconnections of criminals. C. Conclusion The FBI’s investigation uncovered a multitude of crimes involving members of these two organizations. The organizations themselves were not working together, except in a few instances where evidence revealed money being sent between members of the organizations, specifically Illya and Vadim Trincher, who are father and son. Each catered to a different group of people, but the leaders of both used their connections with gamblers, celebrities, millionaires and billionaires to draw clients in to place these illegal bets on sports. The FBI’s investigation to expose these criminal activities had a ripple effect. For example, wiretaps on one individual, such as Vadim Trincher, could hypothetically lead to information about Illya Trincher’s illegal activity, which could lead to a wiretap on Hillel Nahmad, which could lead to more criminal activity or even evidence of crimes that have nothing to do with the actual illegal sportsbook operations of the enterprise. While the FBI has not revealed what steps were used to expose these individuals, this illustrative of how wiretaps and search warrants can effectively uncover information about criminal organizations and tie them together. VII. Guilty Pleas and Sentencing Thirty-three individuals indicted for their involvement with the Taiwanchik-Trincher and Nahmad-Trincher Organizations have


75


resolved their charges through plea agreements or deferred prosecution agreements. The sole remaining defendant is Alimzhan Tokhtakhounov, a “Vor” and leader in the Taiwanchik-Trincher Organization. He remains at large because the United States government is unable to reach him in Moscow. If he ever leaves Moscow and enters a jurisdiction that has an extradition agreement with the United States, though, he will likely have to answer for the charges pending against him in the United States (J. Penza, personal communication, Mar. 17, 2015).

cash and property worth over $6,000,000 (FBI, emailed document, Apr. 15, 2015). Additionally, Hillel Nahmad pled guilty to operating an illegal sports gambling business in violation of federal law and received a sentence of one year and one day imprisonment with three years of supervised release and a fine of $30,000 (FBI, emailed document, Apr. 15, 2015). Furthermore, he was required to forfeit $6,427,000 and all his right, title, and interest in Raoul Dufy’s 1937 Carnaval à Nice painting to the United States (FBI, emailed document, Apr. 15, 2015).

Of the thirty-three defendants, two entered into deferred prosecution agreements, while the rest received sentences involving a combination of probation, prison time, home confinement, and/or fines. In addition, several individuals were also required to forfeit millions of dollars of property to the United States. For example, Vadim Trincher and Anatoly Golubchik, both leaders of the Taiwanchik-Trincher Organization, pled guilty to participating in a racketeering conspiracy and received a sentence of 60 months imprisonment with three years supervised release, and were fined $75,000 (FBI, emailed document, Apr. 15, 2015). Vadim Trincher was ordered to forfeit cash and property worth $20,000,000, and Golubchik was ordered to forfeit more than $20,000,000 in property, cash, and investments (FBI, emailed document, Apr. 15, 2015).

The remaining defendants pled guilty to various charges and received sentences ranging from probation to 18 months imprisonment (FBI, emailed document, Apr. 15, 2015). The Nahmad-Trincher Organization has essentially been dismantled by the convictions and sentences. HMS Sports Book, a key business involved in the organization, is no longer operating. With two leaders of the Taiwanchik-Trincher Organization in jail, it has also been crippled. However, because Tokhtakhounov is still at-large, there is a probability that he could still profit from the illegal gambling business.

The leaders of the Nahmad-Trincher Organization also reached agreements with the government. Illya Trincher pled guilty to his leadership role in the high-stakes sports gambling business and received a sentence of six months imprisonment with six months home detention, two years supervised release, and a fine of $30,000 (FBI, emailed document, Apr. 15, 2015). He also agreed to forfeit

VIII. Impact on American Society TOC money laundering cases may not seem on the face to have as great of an impact on American society as cases where drugs are smuggled or human trafficking is involved, but they do have a significant impact. In many ways, these types of crimes are just as dangerous. This section will examine a few of the impacts these crimes have on American Society. First, American society is greatly impacted by these money laundering schemes because the money is not taxed. Thus, America


76


is losing money that could be used to benefit Americans. Also, the money could be invested in legitimate businesses that citizens are unaware operate as fronts for racketeering enterprises. For example, criminals could hide their profits from an illegal gambling operation in an investment firm used legitimately by citizens. Thus, a citizen would be unaware that the investment firm he or she uses was also being used by criminals. Additionally, these EOC members employ people to assist in covering up the illegal transactions and provide advice on how to cheat the American banking system. For instance, in this case, a manager at the JPMorgan Chase Bank located in New York City, Ronald Uy, was indicted for structuring several transactions designed in part to avoid generating currency transaction reports. Basically, Uy told Illya Trincher how to deposit money within the American banking system without raising red flags. Uy pled guilty to the charge and was sentenced to two months imprisonment with three years of supervised release and a $3,000 fine. Second, the sophistication of these organizations in concealing the money and transferring it among multiple countries impacts American society. These proceeds could originate in America and end up in the hands of criminals in Russia or other countries in the world. Moreover, the shell companies used to hide the money could be used to facilitate other criminal activity. For example, the money could be used to support terrorist organizations. The FBI believes EOC groups are a significant threat because people from the former Soviet Union still have access to weapons of mass destruction. If these laundered funds are used to support terrorist groups or

people with weapons of mass destruction, it is an indirect threat on American society and America has a right to be concerned. Next, these organizations use the threat of violence against clients who have not paid their debts. While the targeted clients in this case were wealthy, some also had a gambling problem. These organizations used implicit and explicit threats to collect debts from their clients. On its face, this problem only seems to impact those citizens involved in the illegal operation, but American society atlarge can also be negatively impacted by it. The rise in criminal violence or fear in citizens is a national concern these organizations should not have the power to control. When EOC groups conduct business here in the United States and with other countries, it compromises American security, and the FBI’s goal in investigating organizations like the Taiwanchik-Trincher and Nahmad-Trincher Organizations is to keep the American public safe. Money laundering, in particular, is a serious offense. It promotes corruption and undermines the integrity of the banking system. As mentioned above, it can also be used to corrupt legitimate businesses or fund other criminal operations. Thus, the FBI, DOJ, and other governmental agencies have a right to be concerned about the impact these transnational money laundering schemes have on American people. IX. Difficulties and Lessons Learned for Future Investigations Transnational Organized Crime is a growing national and global concern. These enterprises work like a spider web, where one individual starts the business in one country and the organization webs out to more countries and individuals. This creates further


77


difficulty in investigating the crimes. Unlike other organized crime groups, the Eurasian groups do not have a hierarchy with one person at the very top. Multiple individuals run the organization and give orders to other people employed by the illegal business. The lessons learned by studying this case include the difficulties with language and jargon, the issues involved with investigating transnationally, the complexity and sophistication of the laundering schemes, and finally the structure of the enterprises. First, the FBI faced challenges when investigating these crimes because the defendants often spoke in Russian, Ukrainian, and other languages not native to the United States. The FBI uses the minimization process when monitoring telephone calls under a wiretap or search warrant (J. Penza, personal communication, June 04, 2015). Basically, this process determines what information in the conversation is pertinent. When a non-pertinent topic comes up, the FBI stops listening to the call and checks back in periodically to determine if the call contained evidence of criminal activity. While the FBI has translators on staff, there can be a delay in getting the information to investigators, which creates difficulties in investigating TOC groups (J. Penza, personal communication, June 04, 2015). Often the members speak a different language than the law enforcement agents are accustomed to. Thus, when investigating transnational groups, such as the Eurasian group in this case, law enforcement agents should be aware of the problems that can arise because of the language barriers. Additionally, the FBI encountered problems with jargon in this case. Often the members and associates of these enterprises spoke in gambling jargon that the agents and translators were unfamiliar with

(J. Penza, personal communication, June 04, 2015). Thus, the agents were required to do research and learn the hidden terms used by those in the gambling world to discuss placing bets, odds, and so forth. Therefore, future law enforcement agents should be aware of problems that can arise involving jargon and be prepared to learn the key to understanding the code language spoken by these TOC groups. Also, while the FBI in this case specifically investigates Eurasian crime and thus was aware of cultural issues that may come up, future investigations of TOC crimes should be alert to possible issues involving cultural jargon issues. Next, there are challenges in relation to the national and transnational scope of these organizations. The members were located in places like New York, Los Angeles, Las Vegas, Florida, Taiwan, Ukraine, and Russia (J. Penza, personal communication, June 04, 2015). Thus, not only were investigators working with multiple agencies here in the United States, they were also working with agencies around the world. Coordinating with all the different agencies and countries poses significant challenges for investigative teams. However, with effective communication and collaboration among the various agencies, these TOC groups can be effectively investigated and dismantled, as demonstrated by this case. An additional problem arises when leaders are located in different countries. Specifically in this case, Alimzhan Tokhtakhounov was living in Moscow, outside of the United States’ jurisdiction. When criminals involved in these transnational crimes reside in other countries, especially where the United States does not have a valid extradition treaty, the FBI and DOJ are limited to only issuing a warrant for the individual’s arrest. The agencies are unable to do


78


anything beyond that until the wanted individual travels into a jurisdiction that has extradition with the United States. While the FBI can obtain phone records, emails, and bank account information for individuals or accounts located outside the United States, they are unable to physically search locations. This case is a prime example of just how sophisticated these TOC groups are in their criminal acts. In this case, the groups used fill-inthe-blank forms to disguise bets or payments of bets (J. Penza, personal communication, June 04, 2015). Essentially, the documents were crafted to look like loans or loan agreements in an attempt to conceal the illegality of the activity. Also, the leaders of these organizations paid proceeds in forms of virtual money and casino chips making the money much harder to trace (J. Penza, personal communication, June 04, 2015). When TOC groups use such sophisticated methods of wiring the money and concealing the profits of the business, it becomes more difficult to uncover the crime. Future investigations of TOC groups laundering money should be aware of these concealment methods used by these EOC groups. Also, investigators should take note of just how the connections played out in this case. The organizations were often loosely ran and interconnected by the associations of their members (J. Penza, personal communication, June 04, 2015). While both of these organizations were independent, evidence was found of money transfers among the organizations. Further, investigators were able to uncover additional crimes by the members because of the looseness of each organization. Therefore, future investigators

should make sure to look beyond the surface crimes to fully uncover these TOC groups’ vast criminal activities. Lastly, future investigations into TOC groups could prove effective if the same methods are employed as were utilized in this case. Law enforcements agents can look to the wiretaps and search warrants expended in this case to further future cases. For example, law enforcement agents can look for loans and loan agreements disguised as bets in future organized crime investigations. Moreover, law enforcement agents should be aware of possible language barriers that could arise and interagency cooperation that may be available to them when investigating transnationally. X. Conclusion This case exemplifies just how widespread these organized crime groups reach. While this study focused on Eurasian Organized Crime, it demonstrates just how sophisticated TOC groups are and the threat they present to America and other countries. It will be up to future law enforcement agencies to investigate TOC enterprises to alleviate the effect on American society. Laundering crimes are intertwined with corruption of individuals and legitimate businesses the American citizens interact with. This case is a win for the fight against TOC, but there is still a long way to go to eliminate the threat these groups have on the world.


79

References

Boucher, Brian (2014, April 30). Helly Nahmad Sentenced to One Year in Prison, $30,000 Fine, Must Forfeit $6.4 Million. Retrieved from http://www.artinamericamagazine.com/news-features/news/helly-nahmad-sentenced-to-one-year-prison-30000-fine-mustforfeit-64-million/ Federal Bureau of Investigation. Eurasian Criminal Enterprises.

Retrieved from https://www.fbi.gov/about-us/investigate/organizedcrime/eurasian

Kramer, Andrew, & Glanz, James (2013, June 1). In Russia, Living the High Life; in America, a Wanted Man. Retrieved from http://nyti.ms/ 1Z5FLzm Ott, Thomas (2012). Responding to the Threat of International Organized Crime: A Primer on Programs, Profiles, and Practice Points. United States Attorneys’ Bulletin, 60(6). Retrieved from http://www.justice.gov/sites/default/files/usao/legacy/2012/10/31/usab6006.pdf. United States v. Alimzhan Tokhtakhounov et al (2013). 13 Crim 268, SDNY, Unsealed Indictment.


80

About the Author

Jennifer Brooke Marshall received a Bachelor of Arts degree in Journalism from the University of Alabama (2012) and a Juris Doctorate from Thomas Goode Jones School of Law at Faulkner University (2015). At Jones Law, among other accomplishments, she served as the Managing Editor of the Faulkner Law Review and received the Public Interest Fellow honor. Marshall became interested in criminal law while interning with a District Attorney’s Office and developed an interest in transnational organized crime while working as a research assistant for Professor Melvin L. Otey. She currently practices law in Montgomery, Alabama.


81