Sympathy for the Devil: State Engagement with Criminal Organisations in Furtherance of Public Policy

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International Journal of Comparative and Applied Criminal Justice

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Sympathy for the devil: state engagement with criminal organisations in furtherance of public policy

Peter Grabosky

To cite this article: Peter Grabosky (2018): Sympathy for the devil: state engagement with criminal organisations in furtherance of public policy, International Journal of Comparative and Applied Criminal Justice, DOI: 10.1080/01924036.2018.1543129 To link to this article: https://doi.org/10.1080/01924036.2018.1543129

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Sympathy for the devil: state engagement with criminal organisations in furtherance of public policy Peter Grabosky School of Regulation and Global Governance (RegNet), Australian National, University, Canberra ACT 2601, Australia.

ABSTRACT ARTICLE HISTORY Governments have long relied on non-state actors to assist in the Received 20 August 2018 implementation of public policy. Legitimate elements of civil society Accepted 29 October 2018 have become familiar instruments of governance. States have also KEYWORDS engaged criminal actors to this end. This article will note examples of Organised crime; state– state collaboration with criminal interests, from pirates turned privateers criminal collaboration; state- during the 17th and 18th centuries, to the patriotic hackers of today. It sponsored crime; state will discuss the strategic considerations giving rise to such engagements, proxies; hackers for hire the pitfalls that may beset them, and the ethical considerations that might inform the decision by a state to enlist the services of illicit organisations.

I. Introduction The ancient Chinese philosopher Lao Tzu (1963) refers to governing by “making use of the efforts of others.” He was nothing, if not insightful and prophetic. Before the rise of the modern state, many activities which today are widely regarded as core government functions were undertaken in whole or in part by private interests. These included warfighting (Howard, 1976); Thomson, 1996), tax collection (Jones, 1974), law enforcement (Johnston, 1992; Jones, 1974), criminal prosecution (Little & Sheffield, 1983), imprisonment (Rusche & Kirchheimer, 1939), and overseas exploration and colonisation Marshall, 1976). Beyond family or clan, the earliest providers of health, welfare, and education services were religious institutions. Not all of these non-state actors were above reproach. Some indeed were engaged by the state because they possessed skills that were rare among law-abiding citizens. This was particularly the case with the application of armed force. States seeking to defend themselves, or to attack others, often lacked sufficient army or naval personnel to achieve the objectives in question. Nor were there sufficient numbers of anciens combattants who might be recalled for duty. States therefore turned to alternative sources of manpower; in the 18th century half of the Prussian Army were mercenaries. Other states recruited bandits, thugs, and maritime pirates to augment their armed forces (Thomson, 1996). Violence is not the only illicit service that states have purchased over the years. Naylor relates how the British engaged Irish counterfeiters to produce bogus bills of credit which were then infiltrated in order to destabilise the American colonial economies during the revolutionary war (Naylor, 1999, p. 10.) The advent of economic sanctions has usually become a boon to smugglers, from Apartheid South Africa to contemporary North Korea. Today, in the digital age, hackers are engaged by governments, directly or indirectly, in furtherance of espionage, propaganda, or disruption of essential services.

This article will discuss various examples of how states have used criminal organisations in furtherance of public policy. It will then canvass the rationale for such practices and the risks that they may entail.

II. Examples of state engagement with criminal organisations Privateers, pirates, and smugglers Privateering is hardly new. It dates to the 13th century, when Henry III issued commissions to commercial vessels allowing them to attack French shipping. The King claimed half of the takings from each successful raid. Such commissions were complemented by letters of marque. The first of these, directed against Portugal, was issued by the English monarchy in 1295. Such entitlements allowed persons suffering a loss at the hands of a foreign vessel at sea to seek redress by force against any ship flying the flag of the predator’s country. The high water mark of privateering took place in the 17th and 18th centuries during the colonial campaigns and great wars of that period. The boundaries of piracy and privateering were fluid, and it was not uncommon for pirates to offer their services to one or another government for the duration of a conflict, in return for a share of whatever spoils the pirates might seize. Upon cessation of hostilities, they did what came naturally and returned to the pirate’s life, albeit without state protection (Thomson, 1996). During its Revolutionary War, the United States commissioned over 2500 privateers, referred to collectively as “Washington’s private navy.” Many had previously acquired considerable expertise in smuggling, and in the evasion of the excise taxes that had been the bane of colonists. They were pirates under British law and patriots under the laws of the rebellious colonies (Volo, 2007; Andreas, 2013). The Louisiana Territory had been controlled alternately by Spain and France throughout the 18th century. It was regained by France at the turn of the 19th century and sold to the United States by Napoleon in 1803, whose priorities at the time were to conquer Europe and North Africa, and to suppress the rebellion in the French Caribbean colony of Saint-Domingue (present day Haiti). At the stroke of a pen, the Louisiana Purchase doubled the size of the United States, for the bargain price of 15 million dollars. Among the denizens of the new territory were the Lafitte brothers, Jean and Pierre, who came into conflict with the US government through their efforts to evade the revenue laws that were imposed after the Louisiana Purchase. The brothers’ lucrative smuggling and piracy business became the target of law enforcement activity; Pierre was captured and charged, while Jean remained at large, continuing in the family business. Meanwhile, in 1812, the ongoing maritime trade between the United States and France had angered Britain, and then locked in an epic military struggle with Napoleon. In order to augment its manpower, the Royal Navy began to kidnap American sailors, arousing sufficient ire in Washington that that Congress declared war. While much of the combat activity took place on the Canadian border and along the Atlantic seaboard, the British had a naval presence in the Caribbean and had developed plans to attack New Orleans. To this end, they offered Jean Lafitte free land in British North America in return for his assistance in vanquishing the American defenders. Lafitte pondered the British proposition, and then approached US authorities with an offer of his services to fight against the British. Only recently had General Andrew Jackson, commander of US forces in New Orleans, referred to the Lafittes as “hellish banditti.” Jackson reconsidered his position and recruited the Lafitte brothers and their gang. The Lafittes, to whom Jackson now referred as “privateers and gentlemen,” helped win the Battle of New Orleans, and were awarded presidential pardons for their services (Vogel, 2000). A national park was later named in Jean Lafitte’shonour. INTERNATIONAL JOURNAL OF COMPARATIVE AND APPLIED CRIMINAL JUSTICE 3

Mafia in wartime During the early years of US involvement in World War II, allied shipping in the Atlantic was under persistent attack from German U-boats. Hundreds of ships and millions of tons of cargo were lost as a result. Shipping along the East Coast of the United States was at great risk from extended-range German submarines. In addition, the perceived threat of sabotage by enemy agents, and industrial unrest among aggrieved longshoremen at US ports, was of considerable concern. US naval intelligence officials were well aware of the influence of Italian-American organised crime groups in the fishing and stevedoring industries along the US Atlantic coast. Despite the fact that he had recently begun serving a 30–50 year sentence in New York State for offenses relating to prostitution, the notorious crime boss Lucky Luciano still wielded immense influence in the New York underworld. Through contacts with state prosecutors, relevant defence attorneys, and Luciano’s mafia associates, the Navy sought Luciano’s help in enlisting his criminal confrères. The objective was to enhance surveillance and security on the New York waterfront and inshore waters, and to facilitate the strategic placement of intelligence agents in the Atlantic coast fishing industry. Although he remained in prison for the duration of the war, Luciano instructed his colleagues to assist the Navy with its tasks. This they did, with considerable success, including tracking down a team of German saboteurs who had landed on Long Island from a submarine. Further collaboration lay ahead. As planning for the Allied invasion of Sicily began, it became apparent that basic strategic intelligence was inadequate. Luciano’s assistance was again sought to obtain information from countrymen in New York and Sicily that might assist in the operation. There was little sympathy in the Sicilian underworld for Mussolini, who had engaged in brutal suppression of the local mafia during the fascist era. So it was that Allied forces were provided with crucial information on shoals and beaches, land formations, sources of fresh water, street plans, friendly contacts on the ground, and other information useful for a successful invasion. Although the collaboration was a success, it remained a secret for a decade thereafter because of its sensitivity. For his efforts, Luciano was granted parole in 1946 and deported to Sicily without fanfare (Herlands, 1954; Campbell, 1977; Costanzo, 2007; Newark, 2012; Cockayne, 2016).

French collaboration with drug traffickers in China and Vietnam French governments were no strangers to engagement with illicit actors. During the 1920s and 1930s when France was granted a concession to administer part of the city of Shanghai, her officials were assisted by the Green Gang in suppressing militant trade union activity. In return, the French turned a blind eye to what was the gang’s core business – drug trafficking. The Green Gang also assisted Chiang Kai-shek in the 1927 “Shanghai Purge” of communists and pro- communist unions. Ironically, the gang’s leader, Du Yuesheng, was rewarded with an appoint- ment to the Board of the Opium Suppression Bureau (Wakeman, 1995; Martin, 1996). At the end of World War II, France emerged from years of German occupation, determined to retain its colonies. Ho Chi Minh, who had sought to petition Woodrow Wilson for Vietnamese independence at the Versailles peace conference, had other ideas. After the surrender of the Japanese occupation forces in 1945, Ho declared independence and launched a guerrilla campaign against the post-war French colonial government. French public opinion was divided on the issue of Vietnamese independence, and the limited funds available for overseas military activity were directed towards traditional forces rather than counterinsurgency. The French Service de Documentation Exterieure et de Contre-Espionage (SDECE) funded its special operations activities with profits derived from its sale of heroin. French officers themselves purchased opium from the growers in the hill tribes, and then sold it to dealer gangs in the cities for retail distribution. French authorities also recruited gangs of river pirates to guard Saigon as part of their counterinsurgency strategy (McCoy, 2003; pp. 131–135; Logevall, 2012; p. 383; Porch, 1995; pp. 319–338). 4 P. GRABOSKY

CIA Corsican gangs Gangs of Corsican heritage have long been a presence in the French port city of Marseille. During WWII, the Gestapo used Corsican gangs to spy on the Communist underground. After Liberation, when the electoral strength of French Communists and their supporters became of increasing concern to the United States, large quantities of Marshall Plan aid was shipped to Marseille for distribution throughout Europe. When militant trade unions threatened to hinder port operations, the CIA engaged Corsican gangs to prevent disruption. Their methods included intimidation and violence, which was occasionally fatal. The gangs enjoyed political protection courtesy of the French security service (McCoy, 2003, Chapter 2).

CIA and drug traffic With the departure of France from Indochina after the 1954 battle of Dien Bien Phu, the United States sought to mobilise hill tribesmen to help neutralise the threat posed by North Vietnamese and Viet Cong forces. While it appears that US agents were not directly involved in the cultivation, processing, purchase, or sale of heroin, McCoy found that they were knowingly complicit in such activities routinely undertaken by their partners. In addition to condoning the illicit activity, US authorities insulated their drug dealing associates from investigation and were directly involved in the transport of contraband (McCoy, 2003, Chapter 5).

CIA and the attempts to assassinate Fidel Castro Following the triumph of the Cuban Revolution in 1959, the Eisenhower and Kennedy adminis- trations became increasingly irritated by the Castro regime, by Fidel’s criticism of US imperialism, and by Cuba’s increasingly warm embrace of the Soviet Union. The mafia, which had previously controlled an immensely lucrative gambling industry in Cuba until it was shut down by the revolutionary government in 1960, understandably had its own grievances with the Castro regime. Aware that mafia themselves aspired to remove Castro from office, the CIA arranged through an intermediary to facilitate a Mafia assassination attempt. On at least two occasions, senior Mafia members were provided with quantities of poison to deliver to designated assassins, but Castro’s security apparatus was formidable and the attempts on his life never eventuated (Central Intelligence Agency (US), 1967; Cockayne, 2016).

East German Secret Police and Florida waterfront gangs During the Cold War, the East German Secret Police (Stasi) did much more than undertake the massive surveillance of their citizens at home. The Stasi ran extensive operations overseas, including in the United States. High on their agenda was industrial espionage, with the objective of keeping abreast of US developments in high technology without having to “reinvent the wheel” in their own laboratories at home. In addition to infiltration of US high tech firms, they sought to exercise a degree of vigilance in various waterfront locations, including south Florida. To this end, they engaged the services of a Florida criminal gang to keep an eye open on their behalf. In the 1970s, an underwater buoy that had been anchored in the Straits of Florida between the United States and Cuba became dislodged during a severe storm and floated to the surface. The device was presumably used to collect signals from Soviet bloc shipping en route to and from Cuba. It was retrieved by the crew of a fishing boat and brought ashore, where it came to the attention of gang members. The Stasi sought to enlist the gang in taking possession of the device for shipment to East Germany. The operation was thwarted after vigilant US authorities prevailed upon their contacts in the New York underworld to assist in interdicting the Floridian collaboration (Archer, 2017). INTERNATIONAL JOURNAL OF COMPARATIVE AND APPLIED CRIMINAL JUSTICE 5

Ethnic cleansing by Serbian militias With the collapse of the Yugoslav federation, Serbian leader Slobodan Milosovic aspired to rule over a “Greater Serbia.” With many people of Serbian nationality residing in surrounding states, Milosovic’s project entailed the use of armed force to displace non-Serb nationalities. Under the pretext of protecting Serbs at the periphery of Greater Serbia, Milosevic recruited militias composed of petty criminals and street thugs. They embarked on a program of “ethnic cleansing,” torturing and killing non-Serb peoples in their path (Mincheva & Gurr, 2013).

Stifling labour unrest in postwar Japan We have already noted the services rendered by the Green Gang to suppress labour unrest in Shanghai, and similar activities by Corsican gangs Marseille. This general practice occurred with greater frequency throughout the Cold War. During the US occupation of Japan following World War II, MacArthur’s headquarters relied upon the Yakuza for information and “muscle” to control the activities of militant trade unions (Dower, 1999; Hill, 2006).

China’s collaboration with Hong Kong triads Following the handover of sovereignty in Hong Kong in 1997, Chinese security officials engaged Sun Yee On, the most powerful triad in Hong Kong. In return for state protection of the gang’sillicit activities, it refrained from involvement in pro-democratic activities in the former colony and on the Chinese mainland. It also served to impede the infiltration of Taiwanese gangs into Hong Kong who might otherwise have sought to encourage anti-Beijing elements or to interfere in local elections. Sun Yee On leaders thus became allies of Beijing and deemed a “patriotic triad” (Lo, 2010).

Death squads in South Africa and Indonesia The United States is not the only country to use organised criminals in furtherance of political assassination. Taiwanese intelligence agencies engaged a member of the Bamboo United group to kill a US resident opposed to the Taipei regime (Chin, 2003, p. 259). But widespread exploitation of criminal assets for killing opponents has also occurred south of the Equator. In the waning years of the apartheid era, an increasingly desperate South African government engaged in a systematic campaign of state terrorism, including the targeted assassination of African National Congress (ANC) leaders. Some of these operations were conducted entirely by state security personnel. At other times, they were carefully engineered through the manipulation of black South Africans. The Inkatha Freedom Party (IFP), engaged in an intense rivalry with the ANC, was occasionally assisted by South African state security to assassinate prominent ANC members. State officials provided the IFP with weapons, intelligence, and with assistance in target selection. This campaign fulfilled two strategies: It provided the apartheid regime with plausible deniability by portraying assassinations as the result of Black-on-Black violence. In addition, it served the regime’s “divide and conquer” strategy designed to fragment and thereby weaken political opposition (Gottschalk, 2002; South Africa: Truth and Reconciliation Commission, 1998). The relationship between criminal gangs and state authorities in Indonesia dates back at least as far as the Medang Kingdom over 1000 years ago. In addition to their core business as bandits, premans assisted local authorities in consolidating their power and in maintaining order. During the Dutch colonial administration, they acted as intermediaries between Dutch authorities and the local peasantry. During Japanese occupation of Indonesia in the Pacific war they played a somewhat similar role, and in addition were recruited to assist in defending against the anticipated Allied invasion. The most powerful gangsters were recruited as local police chiefs. With the Japanese surrender, criminal gangs joined in the revolution against the Dutch. By virtue of their organisation and skills in mobilisation, they were an important 6 P. GRABOSKY resource in the revolutionary struggle. After Independence, however, the Indonesian Army’sdesireto monopolise violence served initially to marginalise criminal gangs to some extent. The Army’s hatred of left-wing politics culminated in the massacre of communists, their sympathisers, and ethnic Chinese during the mid-1960s. The scale of the killing was such that it has come to be regarded as one of the worst atrocities of the 20th century. Estimates of the death toll range from 500,000 to 3 million. Although the Indonesian military did most of the dirty work, they recruited and trained vigilante groups, and also arranged for the release of convicted prisoners for the purpose of assisting in executions (Kadane, 1990; Oppenheimer, 2012). Cribb (2002) relates how the Suharto regime engaged small-time criminals as agents provocateurs to foment unrest during electoral campaigns, create anxiety on the part of the public, and thereby help justify the use of force by state authorities.

Corrupt financial institutions as partners of the state The Bank of Credit and Commerce International was notorious for its facilitation of money laundering in the 1970s and 1980s. It was similarly useful to intelligence agencies for a variety of purposes. These included the provision of short term credit for arms sales from the United States to Iran during the Reagan Administration. The CIA, aware of the bank’s fundamentally criminal nature, nevertheless used its facilities for occasional operations (Kerry & Brown, 1992; Passas, 1996). It has been suggested that the CIA has availed itself of the services of other questionable financial institutions such as the Nugan Hand Bank in Australia, although definitive proof remains elusive (Kwitny, 1982, 1987; Royal Commission of Inquiry into the Activities of the Nugan Hand Group, 1985).

Partnerships in cyberspace Three decades into the digital age, one now sees many examples of illicit (or quasi-illicit) non- state actors acting in concert with state agencies or acting unilaterally in furtherance of what they themselves see as legitimate state objectives. In some cases, these non-state actors begin hacking on their own, with the state unaware of their existence or activity. Once their skills are recognised, some may be subsequently induced and co-opted by the state. In other cases, hackers may initially be cultivated or encouraged by the government, which can sponsor hacker academies at educa- tional institutions. Cyber vigilantes, singly or collectively, have been active in locations as diverse as the United States, Latin America, Eastern Europe, the Middle East, and South Asia. Strategic objectives may include the collection of evidential material in furtherance of a potential criminal investigation; the acquisition of confidential information held by governments or industry; and the discovery or disruption of perceived harmful or objectionable activity on the part of a state or non-state actor. Examples abound.

“Unknown user” By placing a Trojan virus in an online chatroom frequented by aficionados of child pornography, a person was able to obtain remote access to the computers of visitors to the site. Claiming to be a resident of Turkey, and calling himself “Unknown User,” he emailed the police in Montgomery, Alabama, claiming to have identified an active paedophile in that city. Acting on the tip, police obtained a search warrant, searched the suspect’s property, and gathered sufficient evidence to produce a conviction and a sentence of 17½ years’ imprisonment. Despite the fact that the police investigation was triggered by an illegal search undertaken by a private party, the conviction was upheld (U.S. v Steiger, 2003). INTERNATIONAL JOURNAL OF COMPARATIVE AND APPLIED CRIMINAL JUSTICE 7

Apple cracker In 2016, a disgruntled man and his wife opened fire on a healthcare facility in San Bernardino California. Both were killed in the subsequent encounter with law enforcement, but the FBI sought to access a locked iPhone of one of the deceased in order to determine if the attackers might have been part of a wider conspiracy. Unable to unlock the device with their own resources, the FBI appealed to the manufacturer for assistance. Apple declined the request, citing their commitment to customer confidentiality. The FBI then turned to an unidentified group who were able to unlock the device, for a substantial fee. The identity of the group and the technical legality of their modus operandi was never disclosed; it has been suggested that they comprised so called “grey-hat” hackers, individuals who inhabit the fringes of the cyber underworld, searching for software vulnerabilities which they then sell to security agencies or private actors who use them for their own particular purposes (Nakashima, 2016).

China’s cyber army The Chinese state has been implicated in various illegal cyber activities, from industrial espionage to the infiltration of the servers of the Dalai Lama’s organisation. Five officers of the People’s Liberation Army have been indicted in US Federal Court on charges related to cyberespionage (US Department of Justice, 2014). Not all Chinese hackers, however, are government employees. Both Edward Wong (2014) and Tim Maurer (2018) describe a fluid network of hackers in China, comprising military personnel, civilian “hactivists,” cyber militias, and private contractors who direct attacks at specific targets: “China’s hacking culture is a complex mosaic of shifting motivations, employers and allegiances” (Wong, 2014). He cites an IT security specialist who suggested that PLA hackers tend to be more systematic and methodical in their activities, whereas contractors tend to be less disciplined in their target selection and search patterns. The term “patriotic hackers” has been used to refer to attacks by one country’s citizens against a foreign adversary. The hacker community in China is encouraged to apply their skills against specified enemies of the state, as opposed to targets closer to home. Their primary tactics involve denial of service attacks or website defacements in protest against foreign actors deemed to be insulting to China. The Chinese government encourages such attacks through the news media; the attacks themselves are mobilised and launched from within the hacker community through websites and chatrooms (Hang, 2014; Laskai, 2017; Segal, 2012; Maurer, 2018; Chapter 7).

Russian hackers In 2007, a sustained cyberattack was apparently launched from Russia against government servers in Estonia. The extent of Russian state involvement is unclear; the Russian government understandably denied any involvement. Detailed instructions on how to deliver a distributed denial of service attack, and a list of prospective targets were posted on Russian hacker forums. While there appears to have been no concrete evidence of direct state activity, it does seem that the Russian government may have implicitly supported or encouraged the attacks (Landler & Markoff, 2007; Ashmore, 2009). Russian state security and Russian criminal organisations do not occupy opposite sides of an impenetrable wall. It has been suggested that Russian authorities turn a blind eye to local hackers, as long as they abide by three simple rules: Their attacks must be directed only at targets outside of Russia; the information the hackers encounter that may be of interest to the Russian state are to be shared with Russian authorities; and that the hackers must be prepared to assist the state when “patriotic duty” calls. As the Russian state develops its offensive cyber capabilities, it recruits widely. In addition to students, and commercial IT specialists, Russian authorities also engage criminals (Schwirtz & Goldstein, 2017; Maurer, 2018; Chapter 2). In some circumstances, they may even recruit 8 P. GRABOSKY offenders who have been charged with an offense (Kramer, 2016). It should not come as a surprise to observers of the 2016 US Presidential election that Russian hackers were implicated in a number of activities, including accessing the servers of the Democratic National Committee and the Clinton campaign, and disseminating false information via social media (Office of the Director of National Intelligence, 2017). In February 2018, Special Counsel Robert Mueller III announced the indictments of 13 Russian nationals and three related companies associated with “troll factories” or industrial-scale social media operations that employed fraudulent means to promote the presidential candidacy of Donald Trump (Apuzzo and Lafraniere, 2018).

Iranian hackers The Islamic Republic of Iran began to enhance its offensive cyber operations following the disclosures of the US/Israeli cyberattack on Iranian nuclear enrichment facilities (Sanger, 2012). The precise identity of those Iranians allegedly responsible for attacks on US financial institutions and Saudi oil production facilities remain unclear. However, in 2016, a number of Iranian computer security specialists were indicted for attempting to compromise the controls of a small dam on the outskirts of New York City. Their indictment stated that the accused were employed by private security companies in Iran that “performed work on behalf of the Iranian government, including the Islamic Revolutionary Guard Corps….” (Berger, 2018; US v Fathi et al., 2016; Maurer, 2018; Chapter 5). Two years later, nine Iranians were indicted for stealing academic data and intellectual property from a number of government sites in the United States and at least from 144 universities in the United States and from many more institutions around the world. The indictment referred specifically to the Mabna Institute, where the accused were employed, as having contracted with the Iranian government to engage in hacking on its behalf. The indictment also mentioned a spearfishing campaign conducted by the Institute for the Islamic Revolutionary Guard. The precise terms of the engagement were not specified (Banner & Perlroth, 2018;US v. Rafatnejad et al., 2018).

Anonymous The libertarian hacker group Anonymous has at times orchestrated denial of service attacks against such diverse organisations as paedophile websites, the US Department of Justice, and the Church of Scientology. In 2011, the group released the addresses of some 1500 alleged members of the child pornography website Lolita City, and launched a denial of service attack against the website itself (BBC News, 2011). During that same year, it announced that it was targeting a prominent Mexican drug cartel the Zetas, with a view towards exposing the cartel’s collaborators. When it was reported that the Zetas, notorious for their extreme brutality, were engaging IT experts to identify Anonymous members, the latter group abandoned its campaign (Flock, 2011). In 2015, Anonymous declared war on Islamic State, vowing to disrupt the militant group’s electronic communications. Members of the group succeeded in taking over the twitter accounts of 200 alleged ISIS sympathisers. Other anti-ISIS activists have since begun campaigns of their own (Hern, 2016; Dearden, 2017).

Fluidity of state/non-state partnerships One should be aware that it is a considerable oversimplification to distinguish between public and private, organised and disorganised, or criminal and law abiding. Motives may be mixed, and identities may be multiple. Organisations, and individuals, may transmogrify. As Charles Tilly (2003, p. 38) observed, “Over and over again, effective nongovernmental specialists in violence have made alliances with governments, become parts of governments, taken over existing governments, or become governments of their own.” George Washington is but one example. Gerry INTERNATIONAL JOURNAL OF COMPARATIVE AND APPLIED CRIMINAL JUSTICE 9

Adams is another. Mincheva and Gurr (2013, 2) refer to “trans-border networks pursuing a shifting mix of political and material interest.” Illicit non-state actors may have patriotic motives, but they are almost always likely to ponder “what’s in it for us.” For Lucky Luciano, although no explicit promised of leniency appear to have been made, it was release from prison. For Jean Lafitte, it was a presidential pardon. In some cases, private citizens, wittingly or otherwise, may be transformed into criminals by being drawn into illegal activities at the behest of the state. The “White House Plumbers,” retired intelligence officers recruited as special investigators by the Office of the President, were given the task of stopping the unauthorised disclosure of confidential information. To this end, they engaged in a variety of illegal activities, including breaking into the offices of a psychiatrist who had been treating Daniel Ellsberg, then facing trial for disclosing the Pentagon Papers. The Plumbers’ activities culminated in the June 1972 break-in of the offices of the Democratic National Committee in the Watergate complex (Woodward & Bernstein, 1974). Over a decade later, the decision of the US Congress to prohibit further funding of insurgent activities by the Nicaraguan Contras prompted the White House to seek other sources of financial support. To this end, officers of the National Security Council oversaw a privately organised fundraising campaign involving conservative benefactors, as well as the clandestine transfer of surplus weapons through a complex web of private businesses and front organisations to Iran via Israel, with diversion of proceeds to the Contras (Draper, 1991, Chapter 8). A further illustration of the complexity of the policy process and the murky identity of participants therein has been provided by a former director of the CIA:

If you should chance to strike up a conversation with an articulate, English- speaking Russian in, say, the restaurant of one of the luxury hotels along Lake Geneva, and he is wearing a $3,000 suit and a pair of Gucci loafers, and he tells you that he is an executive of a Russian trading company and wants to talk to you about a joint venture, then there are four possibilities. He may be what he says he is. He may be a Russian intelligence officer working under commercial cover. He may be part of a Russian organized crime group. But the really interesting possibility is that he may be all three and that none of those three institutions have any problem with the arrangement. (Woolsey, 1999)

The aforementioned Nugan Hand Bank in Australia enlisted a number of retired US military and intelligence officers to serve among its officials and board members. Before its collapse in early 1980, the bank allegedly engaged in the facilitation of exchange control restrictions, tax evasion, arms shipments, and drug dealing, often to the benefit of political leaders in Asia who were supportive of US interests. Officers of the bank denied any knowledge of wrongdoing. US intelligence agencies were disinclined to comment on the nature of any relationship, individual or corporate (Kwitny, 1987). IT security companies are strategically situated to assist governments in offensive cyber operations. The best in the business possess technical expertise that equals or surpasses that of state agencies. In some states, private companies may be compelled by law to assist the government in activities including surveillance and interception of communications. Alternatively, they may be subject to moral suasion, or “offers” that they are unable to refuse (Bamford, 2008). IT companies with an international clientele may be particularly valuable to their country of origin, given the degree of access that they may enjoy to a client’s information systems. In September 2017, the US government ordered the removal of software installed by a prominent Russian IT firm that it regarded as too close to Russian state security (Rosenberg & Nixon, 2017). It was subsequently reported that vulnerabilities in the company’s software had been used as the basis for espionage activities by Russian intelligence. The company’s principal, a former Russian intelligence official, denied complicity (Perlroth & Shane, 2017). 10 P. GRABOSKY

III. Rationales Perhaps the most common justification for contracting out public services is that these services can be provided more efficiently and effectively by the private sector. Public–private partnerships are one thing; public criminal partnerships are another. Those activities that require esoteric skills may not merit full-time employment. It may be easier go on the market for an assassin, or for a high-end hacker, rather than recruit and train one’s own.

Necessity There have been various rationales for engaging with organised crime in furtherance of public policy. Most basic are that certain tasks lie beyond the capacity of government to carry out with in-house resources, or that the tasks can be more efficiently accomplished by private contractors. These, of course are common justifications for the outsourcing of many government activities of an entirely licit nature. It would have been extremely difficult for the US Naval Intelligence to place personnel in the stevedoring and fishing industries without the knowledge and facilitation of Lucky Luciano’s associates. It would have been impossible to obtain strategic intelligence in support of the invasion of Sicily without information provided by paisani. In certain circumstances, technological changes may obviate the need for outsourcing. The need for a “hired gun” may no longer exist when a state has abundant special operations personnel and weaponised drone aircraft (Coll, 2018). But even the operation resulting in the death of Osama bin Laden saw the engagement of a local doctor who provided intelligence information.

Plausible deniability The second major rationale is that the sensitivity of certain policies are such that governments will seek to plausibly deny responsibility for a given course of action. A state that refuses to submit to the jurisdiction of the International Court of Justice may still be tried in the court of public opinion, and shifting blame for a heinous or embarrassing act can be difficult in those jurisdic- tions where freedom of the press is a fundamental value. The attempts to assassinate Fidel Castro illustrate how a criminal organisation can serve as a buffer between the state and an embarrassing or contemptible deed.

IV. Forms of state–criminal engagement Rarely if ever are engagements such as those noted earlier the subject of a written record. One is unlikely to find formal contracts, memoranda of understanding, or a paper trail of any kind setting out the responsibilities and expectations of participating parties. Indeed, many of the arrangements are engineered indirectly, using intermediaries. The colloquial term for such an actor is “cut-out,” and the role is a common one in matters of espionage as well as in many activities of conventional organised crime where knowledge is compartmentalised in the interests of security. The original contact between the CIA and the Mafia in furtherance of the attempted assassination of Castro was made through just such an individual, Robert Maheu. A former FBI agent who left the bureau to become a private investigator, Maheu had previously done various odd-jobs for the CIA. In making his initial overture to Mafioso John Roselli, he identified himself as a representative of former Cuban businessmen who sought to eliminate the Cuban leader (Central Intelligence Agency (US), 1967). The relational properties of interaction between a state and its illicit collaborators may vary along a continuum from unilateral criminal activity alongside an unwitting state, to the state which monopolises the policy process from inception to implementation. INTERNATIONAL JOURNAL OF COMPARATIVE AND APPLIED CRIMINAL JUSTICE 11

In some cases, the state may be ignorant of serendipitous criminal activity that serves its interests. Initially, the Mafia aspired to eliminate Castro on its own, without the assistance of the US Government. One suspects that state authorities were initially unaware of electronic attacks on paedophiles by Anonymous before the group boasted publically of its exploits. Conversely, the criminal organisation itself may become the unwitting partner. Glenny describes how the administration of an online market for malicious code, stolen credit card details, and other personal information was surreptitiously taken over by an undercover law enforcement agent. The market remained open until law enforcement agents identified the most appropriate participants to prosecute (Glenny, 2011). More recently, the administrator of a large paedophile ring on the “Dark Web” was quietly arrested, his role immediately and seamlessly assumed by FBI agents. It was suggested that the website performed better under FBI administration than it had under previous management. The continuing operation of the site involved the downloading of thousands of child abuse images. Insertion of FBI malware provided agents with access to the computers of thousands of suspected paedophiles (Mayer, 2018). States may also be content to leave resolution of some matters up to the market. The principal of an Indian software firm revealed that his company had been engaged by the film industry in response to information piracy. The firm searches the Internet to find films that have been illegally uploaded, then sends the hosting server a request to remove the pirated content. Noncompliance with a second request is met with a denial of service attack. The firm has also claimed to have remotely destroyed pirated products in order to prevent further illegal use (Grubb, 2010; Maurer, 2018), pp. 145–146). In other cases, the state may know that criminal organisations are operating in furtherance of state interests, but turn a “blind eye” to such activity in the interests of political expediency. In such cases, the resources of the criminal partner are indispensable to the achievement of more pressing state objectives. Thus the CIA tolerated the drug trafficking activity of its Vietnamese partners, lest the North Vietnam/Vietcong forces gain insurmountable strategic advantage. In some circumstances, the state may issue a standing offer of incentives to assist in a given project. Offers of monetary rewards for assistance in identifying or apprehending an offender have long been common. In years past, a declaration of war was often accompanied by an invitation to engage in privateering. The ultimate state objective involving such engagements was usually regarded as more important than the character of prospective recruits. Conversely, the state may be approached unilaterally by an illicit actor or organisation seeking to offer their services. The Lafitte brothers and their fellow smugglers were an example. After considering an offer by the British, they sought out US authorities in New Orleans. The cyber vigilante “unknown user” is another. He or she made direct and anonymous contact with the police in Montgomery, Alabama. Maurer (2018), in his discussion of cyber mercenaries, uses a more attenuated continuum of proxy relationships, comprising delegation (tight state control), orchestration (looser control with some material support), and sanctioning (passive state support or condonation).

The quid pro quo It is not uncommon for such an illicit party’s overture to entail an explicit or implicit request for some form of benefit in return, but neither is it inevitable. Some online vigilante groups impersonate children online and structure the interaction to attract unsolicited overtures of an illicit nature from adults. The group then notiﬁes the local police and media, who are present when the unwitting adult arrives for the illicit assignation (Gaeta, 2010; Huey, Nhan, & Broll, 2012). One might question whether the group members are thereby aiding and abetting a criminal offence. To the extent that they engage in other activity of a questionable nature such as entrapment or coercion, vigilante groups may be criminally liable. 12 P. GRABOSKY

The flip side of such arrangements would entail a unilateral approach by the state, whether directly or through a cut-out. It may be a plea for unconditional cooperation; more likely they may entail some form of inducement. The initial overtures to associates of Lucky Luciano, based on appeals to patriotism, constitute an example of the former; the approach of the British forces to the Lafitte brothers, the latter. Sponsorship of criminal organisations may be quite direct, if perhaps masked. CIA encourage- ment of Corsican gangs in Marseille involved funds routed through intermediaries. IFP hit squads were provided with resources by agents of South African state security. At the extreme, the dominance and political security of the state may be such that it will seek to look after its own interests without any outside criminal assistance. After the Indonesian elections in the early 1980s, the state sought to reaffirm its monopoly on violence and set about assassinat- ing those petty criminals upon whom it had previously relied. The illustrative examples of state–criminal partnership cited above are by no means exhaustive. No doubt alliances of various kinds continue, albeit usually in secrecy. A number of cases noted above only became known to the public with the passage of time, under exceptional circumstances such as a political crisis or a regime change.

V. Unintended consequences of liaison with illicit organisations Marcus Felson’s(2006) ecological analysis of criminal activity refers to symbiotic, parasitic and predatory relationships. As is the case in nature, not all engagements between governments and criminals result in mutually satisfactory outcomes. So it is that state collaboration with criminal organisations may come at a price initially hidden or unanticipated.

Exposure Arguably the greatest risk arising from a marriage of convenience with organised criminals is that the objective in question, and the engagement with unsavoury actors in furtherance thereof, may be exposed, thereby bringing about a public relations disaster, and potentially, a crisis of legitimacy. At one extreme, the Castro assassination programme is illustrative. Great steps were taken to conceal its existence, which was kept secret for years after the programme itself had been abandoned. A newspaper exposé in 1967 gave rise to an internal report summarising the activity. The report was intended to be read by four people, and to have been destroyed immediately thereafter. One copy survived, and remained classified for 30 years; it was subsequently made available online (Central Intelligence Agency (US), 1967). To the agency’s great embarrassment, the disclosure of this and other questionable CIA activities were the subject of a report by the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (1975). The partnership between US naval intelligence and the mafia was concealed for years, lest it stain the reputation of the Navy.

Capture Students of what is called “regulatory capture” are familiar with circumstances whereby an agency seeking to regulate a business or industry winds up serving the interests of that industry, to the detriment of the interests of the public. Conventional government acquisitions whose means and ends are entirely within the law may eventually come unstuck. Poorly drafted government contracts, and insufficient attention by project managers to matters of compliance, may lead to massive cost overruns, delays, and even abandoned projects. At times, the contracting agency may become hostage to its contractor. By virtue of the information that it possesses, an illicit organisation can explicitly or otherwise coerce the state in granting it favourable considerations. Illicit organisations entering INTERNATIONAL JOURNAL OF COMPARATIVE AND APPLIED CRIMINAL JUSTICE 13 a partnership with a state may often expect something in return. It might have been difficult not to grant parole to Lucky Luciano. Both the CIA and FBI were aware of the risk of blackmail at the hands of their underworld collaborators. When the CIA declined to assist John Roselli in challenging his deportation, he disclosed the Castro assassination plots to a journalist. Oversight bodies may themselves be captured by the agencies which they are supposed to supervise. In the United States, the presidency (prior to the election of Donald Trump), the congress, and the courts have been criticised for excessive deference to national security agencies. Since the days of J Edgar Hoover, the FBI has had powerful friends in Congress. The uniformed services each have their political patrons. Collective resignations of senior agency personnel would create a public relations nightmare for the White House (Glennon, 2014). As President Obama was quoted as saying, “The CIA gets what it wants.” (Mazzetti, 2013). One notes that Obama’s immediate successor, once extremely critical of the US intelligence community, became somewhat less disparaging after assuming office.

Strengthening the illicit organisation Engagement with the state may provide a criminal organisation with resources for the future. Corsican gangs in Marseille received funds from the CIA to protect the flow of Marshall Plan aid. This support strengthened the organisations and enhanced their capacity when they returned to their core business of drug traffic, culminating in the notorious French Connection of the 1960s and 1970s. Such circumstances were not unique to Marseille. Support for insurgents in Afghanistan, Burma, and Laos contributed to the sustainability of drug production in those countries. The leaders of tribal armies mobilised by the CIA became the drug lords of the 21st century. The Sicilian Mafia enjoyed a renaissance with the demise of Mussolini, and the good will that was won with Allied occupation forces ensured Mafia sustainability for decades afterwards (Costanzo, 2007).

Displacement Occasional state reliance on criminal actors may lead to unintended changes in criminal oppor- tunities. Cribb speculates that an Indonesian crime wave in the early 1980s arose in part as a result of the Suharto government’s reducing its investment in small scale thuggery after the 1982 elections. In the absence of state sponsorship, the criminals in question had returned to their core business (Cribb, 2002). Toward the end of the Second Indochina War (1954–1973), thousands of American troops serving in Vietnam had become addicted to heroin, a development hardly inhibited by CIA complicity with opium producers.

Diminished accountability Perhaps the greatest risk in devolving security functions to non-state interests is the potential loss of accountability. Even for those who may be unconcerned with the legitimacy of handing certain powers of the state over to outside actors, tracking the exercise of that power may become problematic. Non-state institutions and actions, one step removed from the democratic process, are less accessible to public scrutiny (Lipsky & Smith, 1993). The decentralised, dispersed, and typically secretive nature of security activity may be less visible and less amenable to oversight and control. At the beginning of this paper, it was noted that in years past, private actors undertook many activities that ultimately became core state functions. In recent years, we have seen states shedding many of these functions, outsourcing them to private actors for reasons of cost-effectiveness or ideology. What seems like a good idea may, however, result in adverse consequences, intended or 14 P. GRABOSKY otherwise. At the outset of their engagement, these actors tend to be legitimate and law abiding entities. In the course of their work, however, they may engage in activity that is illegal or otherwise harmful. The terms of engagement may also be structured so that the private actors avoid accountability. Edward Snowden, a former employee of the CIA, was engaged by an NSA contractor Booz Allen Hamilton, when he disclosed vast quantities of classified information without authorisation (Greenwald, 2014). A security firm that provided a variety of services to the US Government following the invasion of Iraq brought about difficulties of a different nature. In 2007, while escorting a convoy of US embassy vehicles in Baghdad, employees of the company fired on a group of Iraqi civilians, killing 17 and injuring 20. In testimony before Congress following the incident, US Defense Secretary Robert Gates testified that although the US government had adequate legal basis for controlling its contractors, sufficient “means and resources” for the exercise of oversight were lacking (Burns, 2007).

Loss of moral authority Governments that portray themselves as paragons of virtue and champions of human rights, only to be found to have been engaged in criminal activities, may see their moral authority eroded. Hypocrisy tends to be inconsistent with leadership, and the state that does not practice what it preaches may lose legitimacy in the eyes of other members of the international community. Indeed, leaders of those countries less concerned with appearing virtuous may be inspired by the double standards practiced by self-appointed moral exemplars.

VI. Conclusions For reasons outlined earlier, a government’s decision to engage a criminal organisation in furtherance of public policy, or to lead a hitherto law abiding organisation to engage in criminal activity, should not be taken lightly. There may be circumstances wherein such an engagement might conceivably be regarded as justifiable. One thinks, for example, of a nation-state confronted by an imminent existential threat. But while it may have been entirely appropriate to seek the assistance of Lucky Luciano in suppressing German submarine warfare, the morality of Apartheid regime’s engaging assassins to thwart the African National Congress, was another matter. A careful weighing of likely benefits and potential risks arising from such a course of action, and a search for less immoral alternatives, seems appropriate.

Notes on contributor

Peter Grabosky, Professor Emeritus at the Australian National University, holds a PhD in political science from Northwestern University.A recurring theme in his research is how the state enlists the resources of non-government actors in furtherance of public policy.

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