Selected Quotes from “The Place of Covert Surveillance in Democratic Societies: A Comparative Study of the United States and Germany”

Organized crime can be anything. Once I investigated a gang of students who regularly used public transportation without paying the fare. This, too, was organized crime, because they had developed a system for insuring their members against fines; everyone paid some amount into a common pot, and if they got caught, the organization would pay the fine.

Covert agents do not merely react to criminal organizations; they shape them, or at least shape how the organizations are described. In this way, agents can define the threat that needed to be solved with infiltration. They can make the crime fit the investigation. This not only makes it difficult for judges and politicians to assess the effectiveness and accomplishments of undercover policing. It also diminishes the extent to which deep cover operations can be confined to the investigation of organized crime.

Although criminal association is our only organized crime offense, it’s almost never used. Mostly, we charge it only for terrorism offenses. When we do use that section of the code, it’s mostly to get approval for telephone tapping and other covert tactics; but that’s pretty controversial, because everyone knows we won’t actually charge the offense.

This control over the concept of “organized crime” also allows investigators to circumvent constraints imposed by the 1992 statute. The statute tried to legitimate undercover operations by limiting them to a list of enumerated crimes and to a residual category, the “serious crime.” The police can justify a covert investigation by styling the target as an “organized” entity, which suggest that its crimes are sufficiently “serious” to qualify under the statute. A prosecutor explained that “cigarette smuggling is not actually a predicate offense of deep cover operations. But you can still get approval if you can show that the smuggling operation is an organized endeavor, with some of the characteristics listed in the regulation.

Police not only interpret the definition of organized crime to justify their covert investigations but occasionally also manipulate the targets so that their activities look more like those of “organized” criminals. One indicator of organized crime is its ability to forge links to lawful realms of society. Undercover agents sometimes supply those links. “The solid citizens, they help you make yourself [the agent] useful to people in the scene. The criminals come to see you as their connection to that normal, outside world. Now you can make yourself useful to them, offer them services.” Deep cover agents could make themselves interesting to targets by pretending to have friends inside the Customs Service who could help people avoid border controls. Others offered referrals to banks, lawyers, tax consultants, foreign contacts, and special airport access.

The link between gangs and lawful society that suggests “organized” criminal capacity can sometimes be an artifact of the investigation.

From the perspective of the police, forging connections between gangs or between gangs and lawful society helped undercover operatives avoid direct participation in the crimes they investigated. But these links help create the organizational complexity that the investigation was designed to prove and that justified the operation.

The police shape organized crime not only to justify covert operations under the 1992 statute, but to match their investigative strengths. Because organized crime potentially includes so many phenomena, the police can target those that they are best able to detect.

Given that police, at their discretion, can broadly interpret the definition of organized crime and can manipulate targets to better resemble “organized” criminals—what follows? If the government can shape the phenomena, and the description of the phenomena, to justify their investigations, what implications does this have for the way in which the police operate? To begin with, it means that undercover operations do not confine themselves to criminal milieus. They bring within their ambit both lawful society and criminal networks. Deep cover agents (and informants) are permanent fixtures in cafes, bars, restaurants, hotels, and other ordinary establishments, particularly those frequented by immigrants, where they rub shoulders with law-abiding citizens along with the assorted mopes, hangers-on, occasional offenders, and committed criminals whom they collectively designate as “targets.” The inclusion of many low-grade offenses in the category of “organized crime” necessitates the creation of an infrastructure of surveillance networks much more comprehensive and integrated into lawful civil society than one would infer from rhetoric about targeting “tightly knit” criminal organizations “closed off” from mainstream communities.

The pressure for “stats” and quick results encouraged police to charge discrete, easily provable offenses. But undercover investigations often yield far more information about criminal organizations then the government needs to prove these mundane, relatively unsophisticated offenses at trial. If covert agents and informants identify the structure of a criminal organization that fails to qualify as a “criminal association,” they need not, and may not, be able to present a complete picture of these findings in a criminal prosecution. Accordingly, criminal prosecutions were often a byproduct of covert operations whose main accomplishment was the gathering of intelligence. The very simplicity of these prosecutions keeps out of court much of the intelligence laboriously collected by deep cover agents.

A very different sense in which undercover policing may be described as a “necessary evil” emerges from the tendency of such investigations to blur the distinction between the “preventive” and the “repressive” functions of police work, and, beyond that, between the pursuit of intelligence and the collection of intelligence.

The greatest vulnerability of the post-1992 German regulatory system emerges from an internal tension. On one hand, the reforms tried to tame deep-cover investigations as evidence-gathering tactics; and on the other hand, the system, as implemented, pushes undercover agents back into more shadowy pursuit of information not geared towards presentation in court.

However, courts are unlikely to learn about undercover activity that preceded the prosecutor’s application for judicial approval to conduct repressive operations. As one judge reported (and others confirmed), “preventive undercover operations are never mentioned when the police seek approval for some evidence-gathering sting. These preventive operations should really be in the application, to provide factual support for the request; but in fact, they never are.”92 Accordingly, cover-building operations may generate intelligence without judicial or even prosecutorial scrutiny.

One of these tactics, which one might term “strategic insulation,” is to separate the deep cover agent from the target whenever the police gather information that they expect to use as evidence in court. The police avoid using deep cover officers in ways that will make them direct witnesses to the crimes the government hopes to prove. “We use the undercover agent’s information in such a way that its source remains hidden; we won’t even use the hearsay testimony of his handler.” Thus the police often assign deep cover agents supporting roles in criminal investigations in order to keep their activities out of court.

Though the east German public might regard undercover policing as an illegitimate form of social control, the police themselves view comparisons with the Stasi primarily as a public relations challenge requiring them to communicate the differences between their own methods and those of the Stasi.

In almost every interview, the police described ways in which they designed undercover operations to differ from those of Germany’s domestic intelligence agencies (the APCs). While the police aimed not to act like intelligence agencies, they merely sought not to be misperceived as resembling the Stasi.

Among other tactics, the FBI “falsely and anonymously label[ed] as Government informants members of groups known to be violent, thereby exposing the falsely labeled member to expulsion or physical attack” and “provoked target groups into rivalries that might result in deaths.”

But the close involvement of prosecutors in covert police operations does not always ensure compliance with the substantive norms. Prosecutors’ expertise in legal interpretation—in casuistry—can justify covert investigations that strain against the spirit of the substantive norms without violating the letter of the norms. Prosecutors and police officials who specialize in covert operations increasingly see themselves as responsible for providing a legal framework that allows undercover agents to obtain evidence. In part, this means permitting borderline practices while imposing constraints that would conform them, more or less, to legal requirements. In part this means reinterpreting the law to lift legal constraints (or finding that they did not apply in the first place). When neither of these strategies is promising, prosecutors and police officials sometimes quietly subordinate the substantive norms to other institutional goals, such as preventing crime and protecting undercover operatives. Prosecutors have become adept at suggesting ways for covert agents to pursue favored tactics without running any realistic risk of criminal liability. Since undercover investigations often produce not evidence but intelligence (which does not get into court), judges have little opportunity to curtail the “creative” interpretations of prosecutors. As one judge put it, “undercover agents don’t testify; if they break the law, we have no way of knowing it.”

What makes the success of undercover investigations so difficult to assess is that infiltrators influence the organizations they infiltrate, and possess power to define what constitutes organized crime and thus to fit what they find to what they were looking for. Under the model of legitimacy-as-fit, the legitimacy of a regulated practice depends on the extent to which it serves the ends—such as fighting organized crime—in whose name the practice was authorized.

At the same time, the secrecy surrounding deep-cover operations, and the likelihood that covert agents will never have to testify, decrease the likelihood that abuses will be exposed and corrected. In the United States, covert policing periodically produces scandals like that which erupted only recently, when a single Texan undercover agent sent 46 residents of a single town to jail on fabricated claims that they had sold him narcotics.

That undercover policing was promoted as a tool against organized crime also made sense in a political climate where the implicit and often explicit accusation against surveillance tactics was that they were being turned against society as a whole. Organized crime—which was characterized as hermetic, and thus safely sealed off from society—formed a safe target for such highly contested tactics.

The Place of Covert Surveillance in Democratic Societies: A Comparative Study of the United States and Germany  by JACQUELINE E. ROSS (local copy)

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