The Purpose of Law Enforcement is to Make Good Criminals? How to Effectively Respond to the Crime-Terrorism Nexus

Editor’s note: The following presentation is from a Potomac Institute for Policy Studies seminar entitled, “Convergence of Crime and Terrorism?” held on November 21, 2013. The seminar centered on the concept that criminal activity and international security are related. Drawing from personal experiences in law enforcement, federal government and academia, panelists evidenced the ways in which crime and terrorism are linked and how law enforcement can stem this issue. Complete seminar transcript can be read

here

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Thank you very much. What I think connects Tony’s fascinating presentation and my talk is a plea, a call for nuance, and for distinction in a phenomenon, or a set of phenomena, that are no doubt interacting in ways that are perhaps unique, and that we have perhaps not seen at least in scope and design. Nonetheless, effective policy will be highly dependent on specificity, and I think there is very much a need to avoid falling into gross generalizations and assumptions that can produce policies that may not be effective or under some circumstances, even be counterproductive. So it is very much in the spirit of calling for nuance and distinction, and careful, specific analysis, that I will then violate the premise, and start with some more general comments.

We have increasingly come to focus our attention to the fact there is a lot of organized crime and many illicit economies around the world, which partially is just a function of the fact that the global international polity is becoming one where there are many more restrictions, rules, and legal norms. Tony had worked for many years in counter-narcotics enforcement, and the drug regime has been around for a long time. But increasingly today there are illicit economies such as illegal logging and blood diamonds, and there are more and more notions and understandings that commodities that might be legal are only legal if the production or transportation follow a certain set of rules or restrictions. And increasingly there is a tendency to arbitrate and in fact, make legal decisions at the global level about normative procedures and normative concepts that then generate legal concepts, and their violation produces illegality. To put it very bluntly, a part of the reason why there is far more organized crime and illicit economy is because there are so many more laws and norms. Until recent decades, or in some cases years, many forms of behaviors, even if highly undesirable and socially problematic, would be considered legal, simply because there would have been no procedures, laws, or arbitrations about them.

These normative and legal developments also influence how malignant groups interact with social and economic domains. Indeed they might have interacted with particular illegal economies, or engaged in activity now seen as illegal or normatively undesirable for a long time, but we are only all of a sudden paying attention because now we perceive that there are two sets of illegalities, or two sets of violations of norms. We have a sense that this phenomenon of the crime-militancy nexus is new and acutely threatening. But let me suggest that many aspects of the so-called crime-terror nexus that seem new and acute are perhaps not so new. That does not mean that we should not be concerned about them, but the question is, in what ways does the nexus of organized crime, illicit economies, militant activity and terrorism pose dangers to societies and states?

Illicit economies, such as the drug trade, pose obvious threats to rule of law and to law enforcement, whether it is police being assaulted at the level of Colombia in the 1980s or Mexico today, with judges and prosecutors being killed, or institutions being systematically corrupted or assaulted to the point of the deterrence capacity of law enforcement collapsing.

Other threats, such as the environmental threats that Tony brought up, are the destruction of forest ecosystems from illegal logging, grazing, mining and hunting. In the Sahel for example, such environmental crimes as well as legal environmental exploitation result in desertification, thereby creating some of the underlying conditions for militant activities by Boko Haram in northern Nigeria.

Illicit economies also pose great economic threats. They often generate difficult macroeconomic distortions that can prevent, or at least undermine, legal economic activity and systematically and increasingly privilege illegal economic activity.

In some cases, particularly when militant groups which seek to take over the state or some part of its territory manage to tap into these illicit economies – like the diamond trade in West Africa, logging in Cambodia, or the drug trade in Colombia or Afghanistan – the nexus of militancy and illicit economies can in fact come to pose a fundamental threat to the very survival of the state and the existing political order.

But with all of these threats that illicit economies generate, it is still a fact that hundreds of millions of people around the world participate in and support illicit economies and consider them legitimate. So on the one hand there are these big threats posed by illicit economies; on the other, while they are illegal, many do not consider them to be illegitimate. And in fact this paradox can make devising effective policies that address the threats but also, take into account the political and sustainability realities, excruciatingly challenging.

And the reason why these illicit economies, with all the threats and all the problems they generate, are still very much legitimate for hundreds of millions of people around the world is because these hundreds of millions of people are often fundamentally dependent on the illicit economy for satisfying their human security needs. So the paradox, the difficulty, the core policy dilemma of the 20th and 21st century to resolve is one of the security of states and institutions being fundamentally inconsistent with, if not altogether antagonistic to, the human security of peoples for which the states and global international system are nominally meant to provide.

To stick with the Afghanistan example I brought up a few minutes ago: There is a reason why there is so much poppy in Afghanistan and why it has been there for the past 20 years. The reason is that much of the economic activity of the country is dependent on opium poppy production. Fundamentally, much of the rural population needs still to cultivate opium poppy not simply to generate an income, but also to get access to microcredit, without which people cannot access medicines, food, essential nondurables and durables, without which they cannot make it through the winter since they often don’t have enough land to generate enough economic income without having to borrow. Often opium poppy also provides the only means to rent land, as landowners will not rent land unless the borrower pays them back in opium. In other words, there is a whole set of structural reasons which condition human security of many people to be a function of participating in illegal economic activity.

This reality also means that militant groups or criminal groups that participate in and sponsor these illegal economies, if they are clever enough, can obtain a lot of what I call political capital. By that, I essentially mean acceptance and enough legitimacy from the population to ensure that the population is willing to tolerate them, if not outright, prefer them to the government, and even refuse to cooperate with the state in fighting the militants. This political capital flowing from militants’ sponsorship of illegal economies is particularly large if the state is deeply deficient in addressing the socio-economic aspects of human security and economic survival, as well as a whole variety of other public goods that a state should provide – at least in the way we conceptualize state formation and purpose and institutional development in the West. So whether it is the Taliban or the FARC, militant groups that come to participate in illicit economies, or mafia groups like the Sicilian Mafia, the clever ones learn that by sponsoring the illicit economy, regulating the illicit economy, and using profits from the illicit economy to provide some socio-economic handouts and some public regulation, as well as other public goods and services, they get a lot of political support. They can entrench their survival in a way that would be completely elusive to them otherwise. Some criminal groups, like the PCC in São Paulo or Comando Vermelho in Rio de Janeiro, even come to regulate the level of violence that is perpetrated on the street. Now you can say that is another paradox: these criminals are the source of violence in the first place, often intense violence as they fight over turf with rival groups. True no doubt; but at the same time, they also often regulate other forms of criminality and violence that take place on the street. Sometimes they act against rapes, even unauthorized murders, arbitrate domestic disputes or disputes amongst neighbors, and set and enforce rules that the state should be setting and enforcing, were it not deficient in its presence. Indeed, both criminal and militant groups will sometimes also set up courts – Hezbollah or the Taliban, as well as Brazil’s criminal groups mentioned before, immediately come to mind. In such settings, the population has no motivation or capacity to go to formal courts for dispute resolution.

In short, by sponsoring illicit economies and by taking on these various public security, regulatory, and dispensation functions in a way that could be quite elusive for belligerents and criminals otherwise, the militant and criminal groups can in fact take on the trappings of a proto-state. They become a government entity; a governing entity with a degree of legitimacy and political capital. And that fundamentally changes the way in which the state needs to tackle the crime-militancy nexus. Instead of merely suppressing an aberrant social activity, as one would perhaps conceptualize many predatory crimes such as extortion or kidnapping, the state needs to conceptualize its policy response as a competition in state-making between the state and the criminals and the belligerents over the allegiance of the population. From the perspective of the state, there would ideally emerge an alignment between legality and legitimacy, so that what is illegal is also broadly perceived as illegitimate, and what is legal is legitimate.

Different illicit economies have different structural factors that influence just how much political capital belligerents can obtain from their sponsorship of the illicit economy. I will not go into them, but let me posit however, that if you accept my claim that in many settings an appropriate policy response is not simply about policing and law enforcement in the classic sense, but that policy response moves into a far more delicate and complex strategic game over the allegiance of the population, then there is a whole other set of factors that need to become part of the tool kit for policy makers. Policing or, in some cases, a military response against insurgencies and terrorist groups, is indispensable. It is a crucial component. However, it often might need to be supplemented by other policies, such as socioeconomic approaches, so that one breaks the economic dependence of populations on illegal economies. That is often very complex, very difficult to do, and socio-economic approaches, such as alternative livelihoods, have often turned out to be more prone to failure than success. We can talk about that in the Q and A. Other important government policies might also involve mobilizing other non-state actors, providing other forms of access to public goods, or justice with the goal that people transfer their allegiance to the state, where bonds between the state and citizens become strengthened, and bonds between the population and non-state violent actors, criminal groups or belligerent groups, weakened.

In the 1990s academic concepts emerged that were promptly adopted by many governments and policy-making bodies, that militant groups have essentially become criminals. We would often hear that the FARC is no longer an insurgent group or a political entity, but now a criminal group because it participates in the drug trade. People would make similar comments about the Taliban in the late 1990s when the Taliban was full force engaging in opium poppy cultivation. Yet in many ways this view was an oversimplification and overstatement of what was happening. Certainly many militant groups who came to participate in illicit economies would nonetheless retain ideologies and very clear political agendas. Similarly, centuries before the 1990s, many militant groups past would have members who were in the fight simply for the money – whether they were outright mercenaries or professed ideological commitment. The fad in both academia and policy circles came to be to say that many militant groups became mere criminals, lost their political ideology, and stopped being political actors.

Here was the second misdiagnosis of this kind of “greed-versus grievance” analysis: the assumption that if the primary motivation is money that does not carry political implications. I would argue the opposite: What is a more political act than controlling bullets and money on the street? If you are the Sinaloa Cartel and you determine how much violence takes place within a territory, and you – directly or indirectly, through illegal economies and their spillovers into the legal economy – provide income for 20% of the population, are you not a political actor? You might not have an ideology, your goal might not be to topple the state, but you certainly want to shape how the population relates to you, whether it provides intelligence to the police or not, and you also want to shape how the police, politicians, and judges act toward you. All such strategic engagement by nonstate actors affects the legitimacy and fundamental purpose of the state and carries political implications. Indeed, it might well be that policymakers and scholars not so much overestimated the extent of political grievances of insurgent groups, but rather that they underestimated the political effects of organized crime groups.

Now that said, I want to make clear that I do not believe that criminals and insurgents have merged into one monolith and that today there is no distinction between the two, and that Somalia’s pirates are no different from Boko Haram in Nigeria, or that the Taliban is equivalent to the Zetas in Mexico. Yes, both militant actors and criminal actors might engage in brutality and use media to communicate signals, they all engage in political signaling as well as other signaling, and they have political effects and might develop political capital. But I will still argue that there are fundamental differences between the two types of actors. In fact, policies that treat them as identical and that seek to target both through the same means will bring about worse outcomes. They will only inadvertently, and highly undesirably, push these groups together, whereas they might have actually been natural enemies. Criminals and militants might be exploiting the same tactics, they might be learning from each other, there might be modus operandi contagion effects taking place. Sometimes, even some cooperation between the two types of actors might emerge, but this tactical cooperation will often be far from lasting. In fact, these marriages of convenience, to the extent that they emerge at all, might very easily unravel, and the divorces might be far more common than the marriages staying together.

We thus need to design policies to actively encourage the separation, the distance, and the infighting between the militants and the criminals, rather than push them together as a result of our policies. In some cases, a policy response might involve thinking geographically. To go back to the Somalia example: the Shabaab for many years did not participate in piracy, but in fact opposed piracy. Piracy was not something Shabaab as an organization was interested in engaging in. But increasingly, the defeat of Shabaab in Kismayo and the weakening of Shabaab between Kismayo and Mogadishu have pushed Shabaab into Puntland. At the same time, various international actors have created and sponsored (semi-)official militias that operate on land in Puntland to attack the pirates’ safe havens on land. The outcome of these two pressures has been that for the first time really over the past two years, some of the pirate groups and Shabaab operate in the same territory and face not dissimilar external enemies. The inadvertent outcomes of the policies is in fact to set up the possibility of greater cooperation between the pirate groups and the clans from which they hail and the Shabaab than was the case five years ago. Such cooperation is still not inevitable, and in fact, policies should be consciously designed to pit them against each other. To repeat, there is still a fundamental difference between the pirates and Shabaab, but it was the policies that pushed them together at least in the same physical territory, and might inadvertently be creating conditions for cooperation among the two separate actors.

On the opposite side, we have many examples where careful targeting patterns, careful signaling, and in some cases devil’s deals between the state and criminal groups resulted in suppression of militant groups. So I would very much urge against treating them as a monolith and believing that, under all circumstances, we have to target all of them equally. Instead, policy needs to consider what are the organized crime groups which are most likely to fall in bed with the most dangerous terrorists, how to keep them apart physically, how to encourage friction and discourage cooperation, how to eliminate one perhaps in order to eliminate access for the other, and how to pit them against each other?

That also means thinking about law enforcement as a signaling mechanism to organized crime groups. It is often alleged that since organized crime groups are interested in making profit, they will engage in any kind of behavior. I don’t think that’s the case at all. In fact, much of what law enforcement does domestically is shaping the behavior of organized crime groups and there are vast differences in how violent, for example, organized crime groups are. There is as much drug trafficking in East and Southeast Asia as there is in the Americas, yet the murder rates in Southeast Asia are akin to murder rates in Western Europe, somewhere between Western European and U.S. rates, which are very low. There is a lot of drug trafficking, and it’s a lot of very nonviolent drug trafficking – in a striking difference to the increasing brutality and violence prevalence we see in Latin America. We can debate why we have different outcomes and patterns of behavior and violence in Latin America and Asia, but I would posit that one of the important differences is that organized crime groups in Southeast Asia have different perceptions of the role of the state and their power vis-à-vis the state and law enforcement institutions. This deterrence effect and assessment of the balance of power might not last forever. But in some ways, the management of organized crime groups by political actors in Southeast Asia has been far more effective than the political management of criminality in Latin America. And the optimal structuring of the criminal market would be one where authority clearly lies with law enforcement and police and the judicial system, such as is present in Western Europe or the United States. That does not mean that all organized crime, such as all drug trafficking, can be suppressed – rather, the objective should be to reduce the most significant harms associated with transactional crime. For example, if a group peddles drugs, it will be targeted by law enforcement. The goal should be to push drug trafficking behind closed doors, to minimize the violence associated with it. And if that fails, if groups do not alter their behavior, and if they do engage in great violence, then those groups in particular will they face the preponderance of law enforcement action. Similarly, policy design needs to signal to organized crime groups that if they engage in organized crime, they will be targeted; but if they also engage with and cooperate with al Qaeda, all holds are off and they will really face the preponderance of the crackdown. In fact, such signaling and sometimes explicit messaging takes place in many settings as to the rules of what tolerable criminal behavior is and what absolutely intolerable criminal behavior is. The criminal groups that don’t learn, they need to be the target first, and be made an example of as well as incapacitated.

So with that, let me provocatively close with suggesting that in the case of many transactional crimes, like drug trafficking, as opposed to predatory crimes, such as murder, suppression by law enforcement will often merely lead to displacement and a balloon effect. Thus, perhaps an important goal of law enforcement should be to make “good criminals.” Now what do I mean by making good criminals? Well, I mean essentially four characteristics: First, criminals who don’t play with terrorists, who actively avoid such engagements and cooperate with law enforcement against terrorist groups. And indeed, if they do engage with terrorist groups, such as al Qaeda, they cross a red line that pushes them into a different level of enforcement priority and focus. In other words, through its signaling and targeting patterns, law enforcement should seek to shape the incentives of criminals so that when they learn that Boko Haram, for example, is trying to use their smuggling routes for financing, the criminal group will cooperate with law enforcement in targeting Boko Haram.

The second characteristic of “a good criminal” is limited violence. There are always some violent aspects of criminal activity, some extortion that is underpinned by the threat of violence, and murders take place. But policy should seek to minimize the violence associated with criminal activity – the goal, for example, should be to make drug trafficking in Mexico look like drug trafficking in the United States: behind closed doors, over the Internet, not very visible to society, and as nonviolent as possible. Yes, there will always be some violence associated with criminal markets, including drug trafficking, such as between dealers and pushers on the street, but it does not have to look anything like the killing fields in Ciudad Juarez in 2009 and 2010.

In addition, criminals need to believe that authority and power lies with law enforcement and the justice institutions, with the outcome being that if a police officer arrests them, they will extend their hands and have the handcuffs snapped on, and end up in jail for a long time, as opposed to responding by blowing up the police station or assassinating the prosecutors and judges. In other words, law enforcement institutions should seek to shape the behavior of criminals so that the absence of or minimal violence – vis-à-vis each other, law enforcement officials and institutions, and society broadly – characterizes transactional crimes as much as possible.

The third characteristic of a “good criminal” is his or her distance from society. That means essentially that large segments of the population are not dependent on going to the local crime don to be able to borrow money or get employment, or to achieve social mobility or secure economic or physical survival itself. Instead, they can go to the formal justice system or legal private sector or perhaps nonprofits if they have a dispute with their neighbor. They do not seek out the mafia don to have him adjudicate or disburse socioeconomic or public goods and services. The way the state “creates” this kind of criminal is by providing socioeconomic services and public goods via legal means to the population. With respect to this characteristic, it is not about how the state signals and shapes the criminal, but rather how it interacts with broader society.

The final characteristic of a “good criminal” – i.e., and by good criminal, I of course mean the least dangerous and harmful one – is one who doesn’t have the capacity to corrupt institutions. There will always be individuals in the government, in law enforcement or justice institutions, who can be corrupted, but we don’t want to be in a situation where entire political elected bodies as well as the entire judicial and law enforcement institutions, or institutions of economic arbitrage, are beholden to either criminals or to political actors who control criminality in the area. In this case, the way policy shapes “good criminals” is not about signaling, or socioeconomic policies, but about what kind of vetting, resilience, redundancy, and transparency mechanisms are built into the formal institutions, what kind of accountability is built into the system.

Shaping the criminal market and criminal groups and their behavior in this way, maximizing the key policy objectives of the least criminal violence, least propensity of criminal groups’ interaction with militant groups, least corruption capacity on the part of criminal groups, and greatest separation of crime and society – a set of objectives I have facetiously called making “good criminals” – is differently possible in different settings. Different criminal market structures and preexisting patterns of behavior and different institutional settings may enable these policies to materialize more quickly in some settings than others. If the baseline is one where the state is essentially a “mafia bazaar,” where political competition and power is about issuing exceptions from law enforcement to one’s patronage group and client clique, where crime surrounded sorghum long before it became about drugs, then achieving those desired outcomes will take longer, will be far more challenging, and require much more robust policies. In such settings, social and political changes might also be necessary far more so than in settings where the baseline already is a basic alignment between legality and legitimacy and where the state is already the principal provider of public goods, perhaps not throughout the entire territory, but at least in the core areas from which it can expand.