Combating Corruption in Kosovo
A Report by
Operation Kosovo1
Chicago-Kent College of Law
Illinois Institute of Technology
23 October 20062 - 29 October revision
Table of contents
I.
Introduction ..................................................................................................... 5
II.
The problem .................................................................................................... 7
A.
UNDP public opinion survey ...................................................................... 8
B.
USAID report .............................................................................................. 8
C.
Serb-centric reports ..................................................................................... 9
D.
Effects ....................................................................................................... 10
E.
Past Failures in Reducing Corruption ....................................................... 10
III.
Best practices from the United States and elsewhere ............................... 11
A.
Theory ....................................................................................................... 11
B.
Case studies ............................................................................................... 16
1.
Italian Falcone story.............................................................................. 17
1
Operation Kosovo is a volunteer project of faculty, students, and staff at Chicago-Kent College
of Law, directed by Henry H. Perritt, Jr., Professor of Law and former Dean. Operation Kosovo has been
involved in Kosovo since August, 1998, initially providing refugee relief, and then, after the NATO
bombing campaign, providing technical assistance for economic development, political party development,
privatization, rule of law, and improved legal education.
2
Professor Perritt edited this report. The project was directed by Jeffrey R. LaMirand. Frank
Bieszczat and Lisa Atkins wrote major sections. Caleb Fox, Carrie Weinland, Teymour ElTahry and Chad
Mair provided useful contributions. FBI Special Agents Patrick Murphy and Travis Carlisle, former
Chicago Police Officer Roger Clark, two assistant U.S. Attorneys, who preferred to remain anonymous,
and D.C. Attorney Phil Fox provided helpful background information on best practices for anti-corruption
investigations in the United States. Several activists, businessmen and public officials in Kosovo reviewed
a draft of the report and made helpful suggestions.
1
2.
All the President’s Men ........................................................................ 17
3.
Greylord ................................................................................................ 20
4.
ABSCAM .............................................................................................. 22
5.
Silver Shovel ......................................................................................... 23
6.
Synthesis from U.S. stories ................................................................... 25
C.
Axioms ...................................................................................................... 27
1. Successful investigations depend on understanding the informal
networks within which corruption occurs ................................................................. 27
a) Confidential informants are necessary to develop an understand of
corruption networks and to select specific individuals for deeper investigation.. 27
b) Financial investigations and audits can be important aids to early
identification of investigative targets. ................................................................... 28
2.
Criminal intelligence must be turned into admissible evidence ........... 28
a) Cooperating witnesses must be recruited, often by threatening
prosecution 28
b) Witnesses will not testify unless they believe they can be protected,
and this often means being willing to uproot themselves and their families to move
to a distant place and foreign culture. .................................................................. 29
3. Electronic surveillance must be conducted to produce compelling
evidence for use at trial............................................................................................. 30
4. Experienced undercover agents usually are necessary to manage
informants and cooperating witnesses and to conduct electronic surveillance ....... 32
5. Anti-corruption campaigns cannot succeed without a professional
criminal justice infrastructure ................................................................................... 32
a) Investigators, prosecutors and judges must have the requisite skill,
independence and resistance to corruption .......................................................... 32
b) Investigative journalism can complement official investigations but it
cannot succeed on its own..................................................................................... 34
c) Anti-corruption institutions must have the requisite legal, financial,
and technological resources .................................................................................. 35
IV.
Challenges in adapting best practices to Kosovo ...................................... 35
2
A.
Introduction ............................................................................................... 35
B.
Application of Theoretical Models to Kosovo.......................................... 36
C.
Four Preconditions .................................................................................... 38
D.
Differentiating Types of Corruption and Setting the Right Priorities....... 41
V.
Recommendations ......................................................................................... 44
A.
Measures of Success ................................................................................. 45
B.
Four Kosovo Hypotheticals ...................................................................... 45
1. Public corporation procurement: member of the board bids, loses,
causes re-evaluation .................................................................................................. 46
2. “You were the winner, but we are going to reopen bids unless you
contribute $1 million to the fund of my party leader” .............................................. 46
3.
“If you give me ten thousand Euros, the contract is yours”.................. 47
4.
Blocking the hospital ............................................................................ 47
C.
Building Political Will .............................................................................. 48
1.
Pick the right targets ............................................................................. 48
2.
Empower the right anti-corruption champion ....................................... 49
3.
Give full legal authority to a special prosecutor ................................... 49
4.
Organize undercover investigations and recruit cooperating witnesses 52
a)
Authorize undercover investigations ................................................ 52
b)
Allow cooperating witnesses ............................................................ 55
5.
Permit electronic eavesdropping under appropriate conditions ............ 55
a)
Wiretapping....................................................................................... 55
b)
“Wires” ............................................................................................. 56
6.
Institutionalize governmental monitoring ............................................. 57
a)
Model the Kosovo Auditor-General on the U.S. GAO ..................... 57
3
b)
General
Model the Kosovo Anti-Corruption Agency on U.S. Inspectors
58
7.
Establish more “hotlines” ..................................................................... 59
8.
Improve witness protection ................................................................... 60
9.
Support investigative journalism .......................................................... 62
10.
VI.
Reinforce anti-corruption norms ....................................................... 62
Prospects for success................................................................................. 64
A.
What’s possible in one year ...................................................................... 64
B.
What’s possible in three years .................................................................. 65
C.
What’s possible in ten years ..................................................................... 66
VII.
Where to Begin? ....................................................................................... 66
A.
Drugs ......................................................................................................... 67
B.
Human Trafficking.................................................................................... 67
C.
Government Contracting ........................................................................... 68
D.
Finding Potential Informants and Cooperating Witnesses to “Jam Up”... 68
VIII.
Appendices ................................................................................................ 69
A.
Appendix I ................................................................................................ 69
1.
Greylord Transcripts ............................................................................. 69
2.
ABSCAM Transcripts ........................................................................... 74
B.
Appendix II ............................................................................................... 79
C.
Appendix III .............................................................................................. 80
1.
Fighting Corruption at the Municipal (Local Government) Level ....... 80
2.
Fighting Corruption in Central Government......................................... 82
3.
Fighting Corruption at the Parliamentary Level ................................... 83
4.
Fighting Corruption in the Business Sector .......................................... 84
4
I. Introduction
Kosovo, once prominent on Western TV screens and on the front pages of
newspapers, is about to become independent. Whether independence, long dreamed of by
most of its Albanian inhabitants, helps them realize their aspirations depends on whether
their leaders can eliminate pervasive corruption.
Kosovo is legally a province of Serbia, but 90% of the population is Albanian.
Geographically, Kosovo is about one-tenth the size of Switzerland and has a population
of roughly two million. The Albanian population has resisted what it sees as “occupation”
by the Ottoman Empire, then the Serbs, and then the United Nations, for hundreds of
years. This resistance, especially after Serbian strongman Slobodan Milosevic revoked
Kosovo’s political “autonomy” in 1989, manifests itself by reliance on extended family
networks and traditional customs. The modern insurgency, expressed through the “
Kosovo Liberation Army (KLA),” waged one of the most successful “Fourth Generation”
guerilla wars of the Twentieth Century, proving that armed resistance to the Milosevicregime’s human rights abuses was necessary to induce international intervention against
Milosevic. The KLA necessarily was financed illegally and procured arms illegally,
according to Serbian law, though not necessarily according to the law of other states. The
organizers and participants in the KLA are proud of their ability to operate “illegally”
during the conflict and are fiercely loyal to each other. The most effective political
leaders of Kosovo today are former commanders of the KLA, and they mostly recruit
former KLA sub-commanders and soldiers as their subordinates and aides.
Despite this history, Kosovo is today a modern society, at least in its cities. Street
crime is almost non-existent. Kosovars are strongly patriotic to their long-standing dream
of having their own country. They love Americans, who, they think, rescued them from
Serb occupation through the NATO intervention of 1999. Four elections have been held
since the NATO intervention, and were characterized as free and fair by all international
observers.
Sovereignty is shared between an elected Albanian national government and a UN
mission (“UNMIK”) which retains ultimate decisionmaking power in the executive,
legislative and judicial realms. Both the UN administration and the elected local
government have been largely ineffective and inattentive to the major domestic problem
of 60% unemployment. Each level of government blames the other for inaction. Ordinary
people cope through an extraordinary combination of entrepreneurship and patriotism.
Many of their economic activities operate “under the radar screen” of formal government
institutions. The most charismatic and effective indigenous leader is Ramush Haradinaj,
former KLA commander, and Prime Minister until he was indicted by the International
Criminal Tribunal for the former Yugoslavia (“ICTY”). A recent public opinion survey
showed Haradinaj to be the second-most popular Kosovar, after former KLA chief-ofstaff Agim Çeku, the current Prime Minister. Çeku is closely associated with Haradinaj,
and, many observers believe, controlled by him.
5
Even those who support independence for Kosovo worry about the effect of
corruption on its future. Smuggling with impunity, nepotism, and bribes at all levels are
believed to occur regularly. More recently, a source of concern has been the
unwillingness of Prime Minister Çeku to take action against ministers he inherited from
his predecessor who are widely perceived to ineffective or corrupt or both, despite
concrete charges against some of them. Despite early promises that he would “clean
house,” he has backed away from that declaration and acceded to public statements by
the heads of both of the parties in his coalition government that the political parties, and
not the Prime Minister, will decide whether ministers should be retained.
A few critics of the government assert that the defense fund for Haradinaj,
organized to defend him against the war-crimes accusations, is a cover for intensified
corruption in public contracting. Most Kosovars, however, both publicly and privately,
vigorously defend the fund as necessary to make sure that Haradinaj gets a fair trial of
what are widely believed to be trumped up charges, motivated by the politics of the
Tribunal’s desire to seem “even-handed,” by prosecuting Albanians as well as Serbs,
Croats, and Bosniaks. The defense fund has announced a goal of raising 12 million
Euros. There is no evidence that the defense fund receives money from illicit sources or
spends it for improper purposes. Michael O’Reilly, senior adviser to Haradinaj, and
leader of his defense team, informed the author that “I have already published the first
annual accounts for the fund at a time (April of this year) when we had raised
approximately E6.5m, I held a press conference to do so and that I made available to
journalists a full list of donors and the amounts that they had gifted. Every cent of the
fund is and will continue to be accounted for.” Nevertheless, many continue to be
unaware of the names of contributors or the fund’s expenditures. The belief that the fund
is insufficiently transparent, whether accurate or not, fuels suspicion in a society that
embraces conspiracy theories. Haradinaj, attractive to the international community as a
decisive and effective leader—and one of the few who has sufficient credentials as a
fighter to tamp down public disappointment about the terms of independence—is also
impulsive and domineering. Most internationals and locals believe that the international
authorities block any serious investigation of Haradinaj’s widely-rumored ties and
supervision of cigarette, drug, and human trafficking activities and of past political and
witness-murders suspiciously linked to Haradinaj’s interests. Some outside experts also
believe that the internationals blocked the arrest of the revered and recently deceased
president, Ibrihim Rugova, for corruption.
There is no publicly available evidence to support any of these allegations or
suspicions. The point is not to argue that the suspicions are correct, but to acknowledge
that they fuel political alienation and undercut effective leadership.
The opposition political party, led by former KLA political director Hashim
Thaçi, launched a major anti-corruption campaign against the Haradinaj/Çeku
government about a year ago, making specific allegations against several ministers. The
opinion surveys show that approval of Thaçi and his party has declined since he began
the campaign. One reason may be that the public views Thaçi’s party as equally corrupt
and not particularly interested in rooting out corruption when it was part of the previous
coalition government and controlled the Prime Ministership.
6
Ordinary citizens in Kosovo complain about corruption, but their definitions of
corruption are diffuse. Many of those who claim to have experienced it say they are
afraid to complain lest they be killed. The public prosecution service and the judiciary are
widely viewed as incompetent, corrupt, and scared. A new anti-corruption agency has no
office facilities, no staff beyond the director, and no budget. Despite widespread
complaints about corruption, there have been no high-profile corruption prosecutions in
seven years of international administration.
As of late fall, 2006, the attention of internationals involved in Kosovo and of the
Kosovar political leadership naturally is focused primarily on final status negotiations
and the possibility of independence. Most participants and observers believe that a
measure of independence will be the result, taking effect as early as mid-2007. Once
Kosovo becomes independent, attention must shift to building an effective independent
state, not only strengthening the democracy that already exists, but also demonstrating the
capacity of an independent, locally elected government to solve domestic problems,
particularly including stimulating economic growth and creating jobs.
Eliminating or reducing the effects of public corruption is an essential part of this
undertaking. As long as public corruption is widely perceived to be a significant reality,
foreign investors will be reluctant to invest in Kosovo, local businessmen will have an
incentive to evade responsibilities imposed by the law, and ordinary members of the
public will become further alienated from the democratic political process.
This report, prepared without outside financial sponsorship, seeks to define the
public corruption problem in Kosovo more precisely than previous public reports have
done, and to consider what “best practices” from the United States and other developed
democracies can be adapted to the realities of Kosovo’s history and political situation. It
offers concrete recommendations for a major anti-corruption initiative to be undertaken
after independence.
The report draws upon Professor Perritt’s eight years of close involvement in
Kosovo. That involvement began during the conflict as the KLA was gaining strength,
and more recently has included more than 100 interviews and other research for his
forthcoming book on the KLA. Under Professor Perritt’s leadership, several students
from Chicago-Kent and Illinois Institute of Technology have worked in Kosovo and in
Chicago on economic development, political party development, and establishing the rule
of law in Kosovo. Several of the students have visited Kosovo and others have worked
for several months or longer as externs for Kosovo institutions.
II. The problem
Several outside institutions have collected data on corruption in Kosovo. The
United Nations Development Program (“UNDP”) conducted a public opinion survey in
April, 2004. The United States Agency for International Development (“USAID”)
conducted a survey in the summer of 2003. The government of Serbia claims that its
intelligence services have monitored corruption in Kosovo closely. Recent German press
stories reported on German intelligence-service concerns about corrupt ties of major
7
Kosovar political figures. This section reviews their findings, and concludes with some
observations about the effect of corruption—whether actual or merely perceived—on
economic development, political development, and on the capacity of the local
government in Kosovo to deliver good laws and public services.
A. UNDP public opinion survey
The UNDP survey labeled Kosovo as an area of high corruption possibility, due
to its developing economy, transitional government, and young institutions. Kosovars
labeled low wages as the primary source of petty corruption in the survey.
Ordinary Kosovars, however, expressed a low tolerance for corruption in society.
Most responded that corruption was the greatest evil in their society. Yet, more
respondents accepted corruption when it dealt with receiving basic needs, such as jobs
and healthcare services. Kosovars blame the KEK (the electricity provider), hospitals,
customs, the coalition government, and the presidency for most corruption in society.
Healthcare claims come from actual experience while claims regarding the KEK and
customs seem to be based more on news stories than on experience. There is a high
perception of corruption in government institutions although no such evidence leads to
this conclusion. Most survey respondents did not report personal experience with corrupt
conduct by governmental officials but nevertheless perceive such conduct to be
widespread.
The survey shows differences of opinion about what constitutes corruption.3
Although eighty percent of survey respondents identified bribes and other illegal
procedures as corrupt,4 fewer labeled preferences based on personal or family
relationships as corrupt.
The younger generation in Kosovo is more optimistic about fighting corruption
than older generations.5 In order for progress to occur, the survey suggests that
accountability must increase, simplification of government processes must occur, and that
prevention, enforcement, complaint, and coordination procedures must be clearer and
more responsive. Thirty percent of Kosovars feel that the Assembly of Kosovo should
take the lead to fight corruption in Kosovo after the full transfer of power from the
UNMIK, by far the largest level of support for any one institution to take the lead.6
B. USAID report
A USAID survey in Kosovo was conducted over a four month period from May
through August 2003. Levels of political, institutional, economic, and social stability
were measured as well as inter-ethnic relations and public and personal security.
3
UNDP, Combating Corruption in Kosovo 13 (2004),
http://www.ks.undp.org/Projects/TIK/tik_en.pdf [hereinafter UNDP].
4
UNDP at 13.
5
UNDP at 10.
6
UNDP at 9.
8
The survey showed a general downward trend regarding public opinion about the
economy in Kosovo.7 Organized crime and corruption contributed to this pessimism. The
public perceived a moderately high to high level of organized crime in Kosovo,8 focused
on trafficking of human beings, drug smuggling, and other economic and violent crimes.
Many Albanians felt that the business community was connected to organized crime.
Corruption as a whole in Kosovo was perceived as second in importance behind
unemployment, followed by low incomes, and high prices.9 Data compiled from surveys
of Kosovo’s neighbors including Albania, Bosnia-Herzegovina, Bulgaria, Macedonia,
Romania, Croatia, Serbia, and Montenegro show, however, that Kosovo is at the low end
of the corruption index, placing it in a better position than its neighbors. It may be that
corruption in Kosovo is perceived by the public to be a greater problem than it actually is.
Corruption problems may intensify in Kosovo as a result of more powers being
transferred from UNMIK to the PISG (Provisional Institutions of Self Government-the
locally elected government). The report suggests that corruption be fought at its roots,
with a focus on the development of fundamental judicial and legal institutions as a top
priority. It also suggests that the government in Kosovo must become more transparent in
order to gain trust from the public.
C. Serb-centric reports
The government of Serbia, and interest groups supporting its position in
opposition to independence for Kosovo, consistently claim that Kosovar Albanian society
and the governmental institutions created by it after the NATO intervention are
pervasively corrupt and tied to organized crime and to Islamic fundamentalist networks.
They make specific allegations against former KLA leaders, including Haradinaj, Thaçi,
and Xhavit Haliti. The Serb reports, including a “white book” apparently prepared by the
Serb Intelligence Service, allege that governmental institutions and public funds are used
by these political leaders to enrich themselves and their criminal associates. It is also
alleged that these former KLA leaders and other political leaders in Kosovo control
active criminal networks, especially in the Drenica and Dukagjini regions of Kosovo.
These networks, the Serbs say, specialize in human trafficking, drug trafficking, and the
arms trade, involving not only Kosovo itself, but also operating as part of a European and
Middle Eastern network.10
An August, 2006, news story in the major German newspaper Berliner Zeitung
cited German intelligence-service reports as backing up some of these claims. The motive
and validity of the story are open to question, however, and its allegations have not
generally been repeated by other German press and media.
7
USAID, Corruption in Kosovo 25 (2003), http://www.usaid.gov/missions/
Kosovo/pdf/corruption_in_ Kosovo.pdf [hereinafter USAID].
8
USAID at 26.
9
USAID at 8.
10
BIA (Security Information Agency), Albanian Terrorism and Organized Crime in Kosovo and
Metohija (2003).
9
D. Effects
If the perceptions and allegations of corruption are even partially true, corruption
will cripple the effort to build a democratic and prosperous society in the context of
independence. The challenges for an independent Kosovo would be daunting even if
corruption were altogether absent. The transformation of a political culture that has been
focused for 100 years or longer in criticizing the dominance of outside “occupiers” into
one that can forge effective political coalitions focused on delivering results is
incomplete. In the economic arena, Kosovo depends on expenditures by internationals
associated with the UN civil administration or with the many NGOs now present in
Kosovo for close to 50 percent of its GDP. A viable economic program must include
plausible steps to prevent a sharp depression as these expenditures are reduced—as they
surely will be after independence is achieved. Even after privatization is completed, it is
far from clear what sectors of the economy offer comparative advantage to Kosovar
producers of goods and services. Considerable insight and experimentation will be
necessary to find Kosovo’s place in the regional and world economy.
When one adds corruption to this equation, the likelihood of meeting these
challenges is low. If local businessmen and outside investors discover or perceive that
substantial amounts of their capital must be diverted to bribe public officials, the
threshold for investing will increase significantly. If tax revenues are diverted for the
private advantage of public officials, the relationship between the burden of taxes on
economic activity and governmental contributions to sound economic growth will be
adverse. The capacity of public institutions will be reduced if government positions are
given to relatives or political cronies without regard for performance or ability. To the
extent that a culture of corruption also infects law enforcement personnel, public
prosecutors, and the judiciary, rooting out corruption elsewhere will be more difficult.
Politically, widespread corruption or the perception of widespread corruption
erodes trust in democracy and the rule of law. If an ordinary Kosovar believes that
government agencies and courts exist primarily to obtain bribes and private advantages,
he will avoid participating in democracy and will evade the law.
E. Past Failures in Reducing Corruption
Despite widespread reports of corruption in Kosovo since the beginning of the
UN civil administration of the territory, few high profile corruption investigations have
been pursued, let alone concluded successfully. The reasons for this are not entirely clear.
One distinct possibility is that top UN officials, and the major powers working through
the Contact Group and the UN Security Council, have not been interested in attacking
public corruption aggressively because they fear it would destabilize the political
structure. A serious anti-corruption initiative could reduce the effectiveness or actually
remove from the scene the most effective and influential political leaders.
Another possibility is that the political will to attack corruption is absent in the
Kosovar Albanian community, and without such political will, foreign prosecutors and
judges cannot be effective in any anti-corruption campaign.
10
Another possibility is that the foreign investigators, prosecutors, and judges
introduced into Kosovo simply lack the expertise, work ethic, and results orientation to
mount an effective anti-corruption campaign.
The reality is probably some combination of all three possibilities.
III.Best practices from the United States and elsewhere
Public corruption is not, of course, a problem unique to Kosovo; it is a problem
everywhere, including in the most developed, democratic, and law abiding societies. In
the United States, combating public corruption has been an ongoing struggle throughout
its history. The public corruption problem in other societies has produced some useful
theory and practical experience that must form the foundation of any anti-corruption
initiative in Kosovo.
This section begins with a summary of relevant theoretical observations and then
offers a number of case studies including one from Italy and several from the United
States that support 10 “axioms” about best practices in anti-corruption campaigns. It will
be difficult to operate a successful anti-corruption campaign in Kosovo without taking
these axioms into account.
A. Theory
Public corruption is a creature of history, custom and self-interest. Three bodies of
theory are helpful in structuring a framework for understanding public corruption in
Kosovo. The broadest is offered by Robert Neild,11 a retired professor of economics and a
fellow of Trinity College, Cambridge. A useful complement to Neild’s observations is
found in the work by U.S. law professor Bernard Black focused on corporate corruption
in Russia. Both implicitly make use of “norm theory”—the study of the informal rules
that shape public perceptions of right and wrong.
Neild turns the usual analysis of public corruption on its head, noting that
corruption in government has been the norm in most societies for the last several
centuries. Accordingly, he suggests that the most useful question is how, in exceptional
cases, corrupt societies have been able to become less corrupt. He emphasizes that the
definition of corruption differs among societies and has changed over time in each
society.12 He defines public corruption as “the breaking by public persons, for the sake of
private financial or political gain, of the rules of conduct in public affairs prevailing in a
society in the period under consideration.”13
He then posits that the amount of corruption in a society depends on the gap
between (1) the number of decisions to be made by public officials, which in turn
11
Robert Neild, Public Corruption: The Dark Side of Social Evolution (2002) [hereinafter
“Neild”].
12
13
Neild at 5.
Neild at 6.
11
depends upon the intensity of government regulation and (2) the extent to which those
decisions are made dishonestly.14 He reinforces his conclusions by close historical studies
of Britain, the United States, Prussia/Germany, and France.
Neild emphasizes the necessity of political will to reduce corruption. His
conclusions in this regard are worth quoting:
“1. Changes in the quality of government, i.e. rules and their enforcement,
will take place only if rulers introduce them.
“2. Politicians whose prime aim is to gain office will not advocate reforms
unless they believe that by doing so they will improve, or at least not damage,
their prospects of acquiring power.
“3. Once in power, rulers, regardless of how they got there—whether by
inheritance, force or election—and regardless of what they promised in election
campaigns, will not introduce reforms unless they believe that by doing so they
will improve, or at least not damage, their chances of retaining or enhancing their
power.”15
This presents the conundrum of why any pragmatic political actor would ever
embark on a serious anti-corruption campaign, whereby he would disadvantage himself
vis-à-vis his corrupt competitors.16 Neild explains how a kind of prisoners’ dilemma
operates on political actors. If B is corrupt, A risks losing power if A is not also corrupt.
Only if A can expose B’s corruption and publicly denounce him on those grounds is there
is a possibility of gain through an anti-corruption initiative. But the possibility of such a
gain is dependent on two factors: first the electorate must not be so cynical as to be
indifferent to B’s corruption; second, A must be able to establish that he himself is not
corrupt; otherwise B, accused of corruption by A, can show that A is equally corrupt,
thereby equalizing the damage to both in public esteem.17 Therefore, political will at the
top depends on the existence of a popular will opposed to corruption and the ability of
political actors to benefit from that popular opposition.
Public scandals are important opportunities to reduce corruption.18 Neild’s review
of the British experience reveals that repeated scandals over decades are necessary to
overcome the resistance of beneficiaries of corruption to take action to stop it.
National or ethnic solidarity is an important consideration. It can be helpful in
reducing corruption within a particular nation or group, if corruption is antithetical to
cooperation that enhances the welfare of the group. On the other hand, it may further
14
Neild at 6.
Neild at 9.
16
Neild at 9.
17
Neild at 126.
18
Neild at 202-203.
15
12
corruption when the group mobilizes to resist what it sees as oppression by another
group.19
Neild suggests that three social forces created the circumstances under which
political advantage historically could be gained by mounting a serious anti-corruption
campaign. Those forces were the Enlightenment, Religion, and the Pursuit of
Efficiency.20 According to Neild, the Enlightenment particularly, reinforced by the
Protestant Ethic, spawned political philosophies that emphasized enhancing the public
good rather than private gain.21
Efficiency frequently became a goal in the past in order to improve the capacity to
wage effective military campaigns—offensive or defensive. More recently, efficiency has
become a goal in order to ensure the delivery of public services while mitigating the
burden of taxation. Corruption is a dead weight on governmental productivity, and
reducing or eliminating it improves efficiency.22 The efficiency variable is important if
one adopts a Darwinian view of the evolution of society. In this regard, social evolution
favors societies which can mobilize their resources for war and military domination better
because they are efficient and relatively uncorrupt. Prussia is a prime example.23
Neild also identifies two mediating factors: the evolution of a professional, elite
civil service, and governmental transparency. Transparency cuts two ways, however: “it
is helpful if the media and public is critical of corruption and able to call effectively for
reform; it is unhelpful if it causes the behavior of a rotten ruler or rulers to be imitated by
the people of the country so that corruption and cynicism spreads.”24
He identifies the institutional apparatus necessary to eliminate corruption: a well
paid military, police and civil service selected by merit; an independent judiciary; laws
and economic regulations that inhibit corruption, or at least do not induce it; good audit
systems; and a press that is uninhibited in exposing corruption.25
An independent, corruption-resistant judiciary is essential for controlling and
reducing public corruption.26 Independence is necessary, because without it any judicial
instincts to expose and prosecute corruption are stymied by pressure from corrupt
political superiors.27 Neild explores the adequacy of judicial compensation and the
Neild at 11 (“Little wonder if the view exists among Sicilians that government officials are
intruders to be invaded and swindled, not obeyed.”).
20
Neild at 10.
21
Neild at 10-11.
22
Neild at 12.
23
Neild at 13-14.
24
Neild at 13.
25
Neild at 201 (acknowledging that everyone interested in corruption comes up with a similar
list).
26
Neild at 97.
27
Neild at 97.
19
13
development of professional judicial norms as essential factors in reducing or eliminating
judicial corruption.28
International involvement usually increases corruption, because of competition by
major powers for natural resources, leading to corrupt deals with the rulers of resourcerich countries in order to obtain concessions. The growth of the post-Cold War arms trade
also fuels corruption, as arms suppliers bribe rulers in order to get orders.29 Neild extends
this analysis to construction contracts.30
Moreover, the “internationalization of government” has spread corruption because
of temptations associated with the dissemination of subsidies from the EU and UN-based
international organizations.31 The tendency is reinforced by jockeying over positions in
international organizations.32 Neild admits, however, that growing international attention
to the need to eliminate corruption may prove to be helpful, especially due to public
pressure from organizations like Transparency International.33 Even as the international
community announces opposition to corruption and establishes standards for non-corrupt
behavior, however, Neild finds it difficult to identify incentives “that would cause corrupt
rulers to say to themselves ‘if I do not attack corruption I may be punished so severely
that I shall lose power, whereas if I attack it I shall be rewarded so generously that may
hold on power will be maintained or enhanced.’”34
Neild is pessimistic about the prospects for reducing public corruption in Third
World countries. For one thing, military competition does not operate in the same way
that it did for Western European nations in the Eighteenth and Nineteenth Centuries.35
Two other factors influence the dynamics of corruption in developing countries.
First, the drug trade produces enormous revenues and can operate only by corrupting
officials. At the same time, “public corruption may have beneficial effects by liberating
enterprise from ill-judged government regulations and can certainly be consistent with
rapid economic growth: the United States in the Nineteenth Century, Italy and a number
of Asian countries in the second half of the Twentieth Century are examples.”36 On the
other hand, he observes that if it goes too far, public corruption can cause economic
collapse because it sucks away too many resources from the government and makes
commerce-enhancing law ineffective.37 “In those countries, principally in the Third
World, that have limited capacity for government and yet attempt to enforce complex
28
Neild at 108-115, 117-124 (emphasizing high social status of litigators and judges in Britain and
United States as a determinant of judicial ethics).
29
Neild at 136-142.
30
Neild at 143.
31
Neild at 144-145.
32
Neild at 145-146.
33
Neild at 150-151.
34
Neild at 209.
35
Neild at 206-207.
36
Neild at 210.
37
Neild at 210.
14
economic regulations, there is good reason to expect that corruption might be reduced by
cutting back on regulation ….”38
Stanford Professor Bernard Black has identified corruption as the most important
barrier to economic development in countries in transition, focusing on his experience in
Russia.39 He challenges the “old view” of corruption, which viewed it as not so bad,
serving as “useful grease for bureaucratic wheels.” “It was better for businessmen to pay
bribes and to get something done than to have bribes forbidden and get nothing done, in
the face of an uncooperative bureaucracy.”40 He lists 21 problems that pervasive
corruption causes for economic development. Among them is the tendency for corrupt
bureaucrats to use regulations and permission-requirements as flexible weapons to induce
the payment of bribes, acting as though they have discretionary authority when they do
not, dreaming up new rules and new interpretations to induce bribes.41 He notes that the
damage is worse when permission requirements are sequential rather than simultaneous.
An entrepreneur has a stronger incentive to pay a bribe in the later stages of a project
because he already has invested so much in bribes paid to obtain earlier-stage permission.
He notes that the quality of government declines as policymakers and corrupt bureaucrats
skew governmental decision to protect or enhance opportunities to obtain corrupt
payments rather than to provide good government service.42 Not only does the need to
make corrupt payments divert capital from productive use in enterprise development, but
it also distracts managers from profit generating activities, and usually protects
monopolistic enterprises from competition.43 Overall, the effect is to discourage
investment and reinvestment.44
Though Black places anti-corruption initiatives at the top of his list of reforms
necessary for economic development, he is very general in his suggestions for elements
of a successful anti-corruption program. “This must involve an attack on the
preconditions for corruption, including underpaid and poorly paid officials and judges;
discretionary enforcement authority, the aggregate license and permit burden, oppressive
taxation, high tariff barriers to competition, organized crime, and on and on and on, as
well as a direct attack on corrupt officials.”45 Despite their generality, however, Black’s
recommendations do sketch some basic directions for governmental policies that reduce
corruption. It is particularly important to restructure regulations to reduce the
opportunities for bribe seeking and payment, and actually to prosecute, convict and
sentence corrupt businessmen and governmental officials.
38
Neild at 6-7.
Bernard S. Black & Anna S. Tarassova, Institutional Reform in Transition: A Case Study of
Russia, 10 Sup. Ct. Econ. Rev. 211 (2003).
40
Id. at 225 (characterizing “old view”).
41
Id. at 226-227.
42
Id. at 227-229.
43
Id. at 230.
44
Id. at 229.
45
Id. at 272.
39
15
Political will to make such changes depends, as Neild argues, on popular attitudes
toward public corruption. Popular attitudes depend in turn on what ordinary people
consider as “right” and “wrong.” Norm theory explains the tendency of most people to
adhere to social norms, culturally developed rules that have not—and may never—
migrate into law.46 People adhere to social norms because they fear sanctions ranging
from dirty looks and unfavorable gossip to loss of job opportunities and business
relations. When norms are long-established, individuals tend to internalize them—to
adhere to them automatically without consciously assessing the costs and benefits of
compliance or non-compliance.
Social norms may be more influential than law in shaping behavior relative to
corruption. If it is customary in a particular society to kick back some of the revenue
available from a public contract, if “everyone does it,” such conduct is difficult to end
merely because the law says that it is impermissible. Conversely, if relevant norms say
that one must never provide favors to a decision maker from whom one hopes to obtain a
benefit, corruption in the form of kickbacks is unlikely, and the necessity for criminal
investigations and prosecutions will be low.
Norm theory provides the crucial insight that having good laws is insufficient for
anti-corruption efforts to succeed; indeed good laws may be of only marginal importance.
What matters far more is having cultural norms that operate within the business
community, the professional legal community, including the judiciary, and the civil
service, and within the political class that sees corruption as wrongful and unethical. It
also is essential for the broader society to find corruption to be abhorrent rather than part
of the national culture.
Changing norms within a distinct professional or political class or within the
society generally is not impossible, but it is difficult and takes time. It certainly takes a
sophisticated understanding of existing norms and how they operate, and of the
likelihood that alternative strategies with a sharp focus can succeed.
B. Case studies
This subsection offers five case studies of successful and not so successful anticorruption undertakings, as well as a synthesis of United States public corruption cases
that resulted in convictions. The first case study is drawn from Italy and the others are
drawn from the United States. The five case studies are offered in narrative form, leaving
it to § III. D. to synthesize from them some axioms about the design of a successful anticorruption campaign.
From two of the case studies, Appendix I reproduces extensive portions of trial
transcripts of witness testimony or recorded conversations in order to show how the
evidence gathered in even the most effective public corruption cases often requires
interpretation by the fact finder in order to draw inferences of illegal conduct.
46
See April Mara Major, Norm Origin and Development in Cyberspace: Models of Cybernorm
Evolution, 78 Wash.U.L.Q. 59, 62-63 (2000) (explaining social norms and citing references).
16
1. Italian Falcone story
Giovanni Falcone, born May 18, 1939 in Palermo, Sicily, is known as one of the
first Italian magistrates to attack the Sicilian mafia. His experience demonstrates the
power of high-profile prosecutions to galvanize public support, while also demonstrating
the dependence of such prosecutions on the willingness of criminal insiders to provide
information and to testify.
Falcone grew up in the Magione district, a poor neighborhood of Palermo, with
the mafia all around him. In 1964 Falcone was appointed as a judge and finally in 1980
he began his career as an anti-mafia investigating magistrate.47 He was one of the major
organizers of the Maxi trial that began February 10, 1986 and lasted until December 16,
1987. The trial resulted in the conviction of 360 of the original 474 Mafiosi members of
the Sicilian Cosa Nostra. Thomas Buscetta, a member of the Sicilian Mafia, was the first
Mafia member to become an informant, and with his testimony Falcone helped convict
the 360 Mafiosi including the Sicilian mafia leader Salvatore Riina. The trial was the first
major successful blow against the Sicilian Mafia.
Unfortunately, due to relaxed penal codes, most convicted Mafiosi were released.
Regardless, Falcone’s actions started a wave of anti-Mafia sentiment in Palermo, and
Mafia crime in Sicily was dramatically reduced after the Maxi trial. After the trial
Falcone was moved to Rome to preside over the national anti-Mafia unit in the Ministry
of Justice and became Italy’s main prosecutor for Mafia cases. On May 23, 1992 shortly
after returning to Palermo, Falcone and his wife Francesca Morvillo were killed by a
bomb while driving the short distance from the Palermo airport to the city. It is believed
that the murder was organized by Salvatore Riina in revenge for Falcone’s convictions of
Mafiosi during the Maxi trials. Giovanni Brusca, one of Riina’s associates, was convicted
for Falcone’s murder after admitting to being the one who actually detonated the
explosives. Falcone is now honored for putting anti-mafia politics in motion in Sicily and
for his bravery in his quest for justice.48
2. All the President’s Men
The Watergate investigation, named after the office complex where agents of
President Richard Nixon’s 1972 reelection campaign (CRP49) broke into the offices of the
Democratic National Committee (DNC), resulted in the only resignation of a U.S.
President in history, in August, 1974. The Watergate experience shows how high-level
47
In the Italian legal system, the most important initiator of criminal investigations was not a
public prosecutor, as in the United States or Britain, but a specialized judicial official called an
“investigating magistrate.” John D. Jackson, The Effect of Legal Culture and Proof in Decisions to
Prosecute, 3 Law, Probability & Risk 109, 127 (2004).
48
Salerno, Vincenzo. “Remembering Judge Falcone.” The Best of Sicily 2002. Google. 29 Jun.
2006 <http://www.bestofsicily.com/mag/art-48.htm>; Giovanni Falcone.” Wikipedia. Google. 29 Jun.
2006 <http://en.wikipedia.org/wiki/Giovanni_Falcone>; “UN Convention Against Transnational Organized
Crime.” UN.odc.org Palermo, Italy 12-15 Dec. 2000. Google. 29 Jun. 2006
<http://www.un.odc.org/palermo/palermo.htm>.
49
Committee to Re-elect the President.
17
opposition to investigation of misdeeds by government officials operates to thwart the
efforts by ordinary criminal justice authorities, but also shows the power of the press, of
legislative hearings and investigations, and of public opinion to accelerate the momentum
of high-profile investigations. This enables an investigation to “follow the money,” and
eventually to turn insiders into confidential informants or cooperating witnesses as they
are threatened with prosecution themselves.
The investigation began on June 17, 1972, with the arrest of five burglars inside
the DNC offices, who initially were processed as ordinary criminal defendants. Police,
however, were curious about the notation in a notebook found on defendant James
McCord, “Howard Hunt– WH.” McCord, the leader of the break-in team, was Director of
Security for CRP. He reported to Howard Hunt, a White House consultant, who, in turn
reported to G. Gordon Liddy and Chuck Colson, both Special Counsels to the President.
Liddy, Hunt and the burglars were indicted on September 15, 1972.
The burglars had in their possession large sums of cash, which had originated
with Hunt and Liddy, who drew on CRP funds. The FBI traced the money to Mexico, and
scheduled interviews with two individuals responsible for laundering campaign
contributions for support of illegal White House political operations through a Mexican
bank account. The White House staff was carefully monitoring the progress of the FBI
investigation, receiving investigative reports and sitting in on some FBI interviews.50
Worried that the FBI would follow the trail back to CRP, which the President and his
advisers knew to be the source, the President ordered the CIA to tell the FBI to
discontinue its effort to “follow the money” on the grounds that it would jeopardize a
CIA operation. The Director of the CIA balked, although the Deputy Director of the CIA
managed to stall the FBI investigation for two weeks.51
White House staff, and the President himself, scrambled to raise hundreds of
thousands of dollars to buy silence from the arrested burglars.52 Public interest intensified
in the money angle after Howard Hunt’s wife was killed in a plane crash at Chicago’s
Midway airport on December 8, 1972 and was discovered to be carrying $10,000 in cash,
subsequently revealed to be part of the hush money.53 Meanwhile John Sirica, the United
States District Judge assigned the case, threatened the burglars with long sentences in an
efforts to force them to disclose what they knew. In response McCord, despite having
been impliedly promised a pardon by the President, wrote a letter to Judge Sirica hinting
that dark forces were behind the burglary.54
Two unknown Washington Post reporters, Bob Woodward and Carl Bernstein,
supported consistently by the Managing Editor of the Post, Benjamin Bradlee, undertook
50
51
Haldeman, Id. at 54 n.15.
United States v. Haldeman, 559 F.2d 31, 54 (D.C. Cir. 1976) (reviewing background of
coverup).
52
See John Dean, Blind Ambition: The White House Years (1976); Haldeman, at 55-56.
Dean at 168 (reporting White House panic as to whether money could be traced back to the
White House or to CRP).
54
Haldeman, at 57-58.
53
18
a painstaking, two year investigation of the Watergate affair. Their stories appeared
regularly in the Post, which kept allegations against the Nixon Administration alive in the
public mind.55 Woodward and Bernstein got tips from confidential sources indicating that
money found on the burglars was linked to CRP through a bank account in Miami
maintained by one of the burglars. Their investigation and subsequently published stories
crystallized growing public suspicion that the White House was behind the burglary and
was trying to frustrate the FBI investigation.56 Secretaries and other lower level personnel
at CRP, all of whom were terrified to talk to investigators or reporters,57 began to identify
higher level people involved in the money trail. A confidential informant, known for
years as “Deep Throat,” and subsequently revealed to be Mark Felt, the Associate
Director of the FBI, consistently encouraged Woodward and Bernstein and gave them
tips on how to direct their investigation.
On May 18, 1973, President Nixon yielded to public and congressional pressure
fueled by the Woodward and Bernstein stories and agreed to appoint a Special
Prosecutor, free of supervision by the Justice Department, Archibald Cox, a distinguished
law professor from Harvard, and mentor of Attorney General Elliott Richardson, was
appointed. Cox called top aides to the President before the federal grand jury in the spring
of 1973. Most of them lied about the White House involvement in the break-in and other
illegal activities, but the experience and the threat of prosecution began to dissuade more
and more of them from participating further in the cover-up, and raised temptations to go
over to the Special Prosecutor’s side and betray the President. 58
Ultimately, the President was brought down by audio recordings of his private
conversations, revealing that he orchestrated the Watergate cover-up and by the
probability of impeachment by the House of Representatives and conviction by the
Senate. A recording widely believed to show that the President had advance knowledge
of the break-in itself, was mysteriously erased, under circumstances suggesting that the
President erased it himself.59 The recordings had been made secretly at the direction of
the President, apparently for archival purposes. Their existence was discovered through
testimony before a Congressional committee by Alexander Butterworth, one of the
President’s top personal aides, one of a handful of people who knew about the White
House taping system.60
The President ordered the Attorney General to fire Cox on October 20, 1973 after
he pressed too hard for the tapes and for other evidence in possession of the White House
that the President claimed was privileged.61 The firing, known as the “Saturday Night
Massacre,” was accompanied by FBI agents taking control of the facilities and files of the
See generally Carl Bernstein & Bob Woodward, All the President’s Men (1974).
Woodward & Bernstein at 41.
57
Woodward & Bernstein at 65-66.
58
Haldeman at 275 (reporting pressure on and wavering by Magruder and Dean).
59
Haldeman at 207 (reporting suspicion that President erased the recorded material).
60
H. R. Haldeman, The Ends of Power 204-205 (1978) (reporting on Butterworth disclosure).
61
See Nader v. Bork, 366 F.Supp. 104 (D.D.C. 1973) (declaring that Special Prosecutor Cox was
illegally dismissed but refusing injunction).
55
56
19
Special Prosecutor. Attorney General Richardson and Deputy Attorney General William
Ruckelshaus resigned rather than carrying out the President’s orders to fire Cox. Robert
Bork, later a nominee to the Supreme Court and then the number three person at the
Justice Department, agreed to become Acting Attorney General and to carry out the
President’s orders. Another special prosecutor was appointed and continued to insist on
disclosure of the tapes, resulting in a Supreme Court decision that the tapes must be
disclosed,62 with which the President complied.
As the investigation proceeded, several CRP executives and high-level White
House aides were prosecuted and convicted of obstruction of justice, including the
Attorney General, the White House Counsel, the Acting FBI Director, the Chairman of
CRP and former Secretary of Commerce, the President’s Chief of Staff,63 and his Chief
Domestic Adviser.64 In indicting seven of these individuals, on March 1, 1974 the federal
grand jury named the President as an unindicted co-conspirator.
The success of the Watergate investigation shows the interaction of many strands
of a commitment against official wrongdoing. If the CIA director had not refused to
interfere in the FBI’s investigation, if Woodward and Bernstein had not pursued their
investigation and received confidential tips from dozens of knowledgeable individuals, if
Judge Sirica had not succeeded in “breaking” McCord and Hunt, if the Democratically
controlled Congress had not aggressively pursued hearings on Presidential involvement
in Watergate, if the President had destroyed the tapes, or refused to accede to the
Supreme Court’s decision, the investigation would have run aground, at least before the
President was driven from office.
3. Greylord
The FBI's 1980's "Operation Greylord" resulted in the indictment of 17 judges, 48
lawyers, 8 policemen, 10 deputy sheriffs, 8 court officials and one state legislator in
Chicago.65 Cooperating witnesses, undercover FBI agents, and extensive electronic
surveillance—most of it involving cooperating witnesses wearing “wires”—comprised
the evidence resulting in the convictions.
62
United States v. Nixon, 418 U.S. 683 (1974) (affirming denial of motion to quash subpoena
compelling President to produce tape recordings and documents).
63
United States v. Haldeman, 559 F.2d 21 (D.C. Cir. 1976) (affirming conviction of Chief of Staff
Haldeman).
64
United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976) (affirming conviction of Domestic
Affairs Advisor John D. Ehrlichman).
65
See United States v. Devine, 787 F.3d 1086 (7th Cir. 1986) (affirming
conviction of state judge convicted of orchestrating deals to fix cases); See generally
James Tuohy & Rob Warden, Greylord: Justice, Chicago Style (1989); Andrew Majeske,
Note, The Greylord Investigation Guidelines: Protection for Greylord Attorneys, 16 Loy.
U. Chi. L.J. 641 (1985).
20
Judge Thomas J. Maloney was convicted on April 16, 1993 of fixing four cases,
three including murder indictments, and for attempts to persuade a witness not to
cooperate with the FBI.66 Former associates of the judge, who served as "bag men" for
passing bribes to the judge from two lawyers, later became key cooperating witnesses
against Judge Maloney.
The role of one of these cooperating witnesses in the investigation was
popularized in Scott Turow's 1999 novel, Personal Injuries, in which the protagonist is a
successful personal injury lawyer who bribes judges, gets caught, and agrees with the FBI
to wear an eavesdropping device as he continues the bribery. Turow was the lead
Assistant U.S. Attorney in prosecuting judges caught in the Greylord scandal.
Cooperating witness Robert Cooley wrote a book of his own: When Corruption Was
King.67 The bribe charged in the Maloney indictment occurred after Cooley was
approached by a Democratic alderman and ward secretary who wanted a "guaranteed"
not-guilty verdict for a hit man for organized crime.68
The FBI already had been suspicious of Judge Maloney and had agents
monitoring trials in which bribes were taken. Early investigations showed that Maloney's
expenditures could not be supported by his legitimate income. After the Greylord
Investigation obtained evidence against the judge, his trial lasted more than six weeks,
involved more than forty witnesses, historical testimony, undercover audio and video
recordings, documentary proof and financial analysis.69
Among other things, the FBI told Cooley to file a fake lawsuit to create an
opportunity for the judge assigned the case to accept a bribe.70 An FBI special agent from
Arizona, Terrence Hake, played the role of the plaintiff in one of the fake cases,71 and
subsequently testified that he passed money to the judge.72 The FBI notified the chief
judge of the criminal division of the Cook County Circuit Court, the Cook County State’s
Attorney and the Illinois Attorney general before filing the fake cases.73
The United States Court of Appeals for the Seventh Circuit approved the
investigative techniques used in Operation Greylord in United States v. Murphy,74
including the use of "bait" money offered by cooperating witnesses, and the use of
66
United States v. Maloney, 71 F.3d 645, 650 (7th Cir. 1995) (affirming conviction and describing
Greylord investigation).
67
Robert J. Cooley, When Corruption Was King: How I Helped the Mob Rule Chicago, Then
Brought the Outfit Down (2004).
68
71 F.3d at 650.
69
Brief for the United States, United States v. Maloney, 1995 WL 17064156.
70
United States v. Shields, No. 90 Cr 1044, 1992 WL 43239 (N.D. Ill. Feb. 20, 1992) (describing
lawsuit in prosecution of Judge David J. Shields). United States v. Shields, 783 F.Supp. 1058 (N.D. Ill.
1991) (describing fake case and associated electronic surveillance in judge's chambers).
71
Shields, Slip op. at 38-39.
72
Devine, 787 F.3d at 1087
73
United States v. D'Arco, No. 90 CR 1043, 1991 WL 235927 (N.D. Ill. Oct. 2, 1991) (denying
motion in limine seeking to exclude evidence procureed by fake case).
74
768 F.2d 1518 (7th Cir. 1985).
21
phantom cases. It is a practical necessity, the court observed, to use undercover agents
and cooperating witnesses who take part in bribe transactions. Without them no victims
are likely to come forward and testify, even if they know about the bribe.75
The fruits of the Operation Greylord investigation can be appreciated by quoting
the trial judge in the Shields case. The electronic surveillance was crucial in the cases:
“In the final analysis, it was Shields' own words which convicted him. The
evidence disclosed that on the morning of September 2, 1988, Cooley contacted DeLeo
[the judge’s co-defendant and bag man] to inform him that he had been served with an
emergency motion by the defense in the Nichols case seeking release of the partnership
funds which Cooley had succeeding in freezing. The motion was noticed for hearing later
that morning. Cooley told DeLeo that if the motion were denied and the money not
released, the defense would be forced to settle the case.” (See Appendix I for surveillance
transcripts.)
In the end, Cooley put himself in a witness protection program of his own design
for a while, but could not resist the temptation to make phone calls and travel to Chicago.
4. ABSCAM
The FBI's ABSCAM investigation began in 1978 and resulted in the conviction of
a United States Senator, six members of the United States House of Representatives, the
mayor of Camden, New Jersey, several members of the Philadelphia City Council and an
inspector for the Immigration and Naturalization Service. It was the first FBI
investigation aimed at trapping corrupt public officials. The investigation and the
subsequent convictions highlighted the power of video and audio recordings in
convincing juries to convict corrupt public officials who offered innocent explanations
for ambiguous statements and conduct.
The investigation proceeded through a bogus business called "Abdul Enterprises,
Ltd." FBI undercover agents posed as Middle Eastern businessmen who offered money in
exchange for favors to a fake Arab sheik named Abdul, who wanted to purchase asylum
in the United States, who wanted partners for an investment scheme, and who wanted
help in getting money out of his country. Thirty-one public officials were targeted with
the aid of Melvin Weinberg, a confidential informant turned cooperating witness. Indeed
Weinberg conceived of the scheme and proposed it to the FBI when the FBI persuaded a
federal judge to release him after his conviction on federal wire-fraud charges. During the
sting operation, the FBI disbursed more than $400,000 in bribes, and paid Weinberg
$140,000.76
The eventual defendants were attracted by claims that the imaginary sheik
contemplated large projects, such as a hotel in Philadelphia. Weinberg told Philadelphia
attorney Howard Criden, who had made introductions to other ABSCAM defendants, that
75
76
Id. at 1528.
Jannotti, 673 F.2d at 581 n.2 (describing recruitment of Weinberg).
22
the sheik’s representatives would be coming to Philadelphia and they wanted to meet
Congressman Myers or Lederer and, on Criden’s suggestion, with City Council President
George Schwartz, Majority Leader Harry Jannotti and Member Johansen. Weinberg
sought guidance on the “proper tariff” and on whether he could speak “candidly” with the
officials.77
The ABSCAM operatives, once they had evidence of corruption of certain public
officials, sought to target others. (See Appendix I for surveillance transcripts.)
The success of the ABSCAM investigation shows the essentiality of audio and
video recording, the utility of a sophisticated cover story, and complicated, sustained
relationships among undercover law enforcement personnel, cooperating witnesses,
corrupt intermediaries and targeted public officials themselves.
5. Silver Shovel
Operation Silver Shovel occurred from 1992 to 1995 and resulted in the
conviction of 18 public officials and co-conspirators, including six then current or former
Chicago city aldermen.78 The Silver Shovel investigation shows the essentiality of
confidential informants, audio recordings and skilled undercover agents in obtaining
incriminating evidence.
John Christopher was the owner of several excavation and trucking companies in
Chicago. Christopher agreed to be a cooperating witness and to wear a wire in a plea
agreement in a prosecution of him for tax evasion, bank fraud and bribery.79 The FBI
recruited Christopher to investigate Alderman Virgil E. Jones, whom the FBI suspected
of corruption.80 Christopher, along with an FBI undercover agent, recorded on audio or
video equipment more than 1,100 meetings or telephone conversations.81 The recordings
provided evidence of more than $2.2 million worth of bribes, purchases of cocaine, and
money laundering.
The defendants routinely accepted cash payments from either Christopher or the
undercover Agent and in return channeled work to a sham Minority Business Enterprise.
A city commissioner accepted a cash bribe in exchange for placing the undercover
Agent's company on the city's snow removal work list and concealed the fact that the
undercover Agent's company was a sham Minority Business Enterprise (MBE).
77
Jannotti, 673 F.2d at 582.
Much of this description comes from Federal Bureau of Investigation, Operation Silver Shovel,
http://chicago.fbi.gov/silvershovel/silvershovel.htm [visited 12 July 2006].
79
United States v. Christopher, 1 Fed.Appx. 533 (7th Cir. 2001) (describing cooperation in
affirming district court sentence of Christopher for 39 months based in part on his commission of other
crimes after his plea agreement).
80
United States v. Jones, 224 F.3d 621, 623 (7th Cir. 2000) (affirming conviction of Alderman
Virgil Jones).
81
The reported cases provide no details on the eavesdropping activity by the cooperating witness
or the FBI.
78
23
An Alderman agreed to help the company find work, in return for a $10,000
contribution to his campaign.82 When Christopher said that many of the names of those
"contributing" would belong to dead people, the city official replied, "the more dead the
better." In January 1995, the official accepted the $10,000 contribution, along with a list
of 15 fictitious contributors. That same day, Christopher's business was placed on the
city's roster of minority snow removal contractors.83
An Alderman accepted cash bribes totaling over $36,000 in exchange for using
his political power to benefit Christopher and the undercover Agent. This official
interceded with several elected officials to assist Christopher's company for favors such
as: getting Christopher's company falsely certified by the city as a woman-owned
contracting company so that it could receive woman- owned set-aside business; obtaining
a city liquor license for a proposed liquor store site to be operated by the undercover
Agent; and gaining the support of several city officials for their assistance for various
projects operated by Christopher and the Agent's company.
Christopher and an Alderman met in a restaurant in 1993, during which time
Christopher gave the official $3,000 in small bills and further discussed aspects of
Christopher's business.
Christopher told the associate of a former city commissioner that he was willing
to pay a percentage of the value of an excavation subcontract in exchange for the
official's influence in helping Christopher's company obtain the subcontract work.
Christopher then paid the men many times during the next several months, once giving
one of the men a cigarette pack containing $4,000.84
“On May 4, 1994, Fuller met with Blassingame [a middleman] and Agent Sofia at
Marche Restaurant in Chicago. Fuller told Agent Sofia that although there were a few
problems with the permit application, if Agent Sofia revised the permit request and “get it
back to us[,]. . . .[t]he next board meeting we'll have it ready.” The next day, Fuller asked
Christopher to come by his office and pick up the Whelan letter. There, Christopher gave
Fuller $5,000 cash in a McDonald's bag. Fuller accepted the money after initially
responding, ‘That's not necessary, John.’ Fuller and Christopher also discussed
Christopher's record of dumping and leaving debris on public property. Fuller told
Christopher that “[w]e don't want you to leave what we'd consider a ···· mountain there.”
Some of the targets were suspicious:
82
See United States v. Evans, 192 F.3d 698 (7th Cir. 1999) (affirming conviction of Alderman
Jesse J. Evans).
83
See United States v. Blassingame, 197 F.3d 271, 276 (7th Cir. 1999) (affirming conviction of
Metropolitan Water Commission member Thomas S. Fuller and his bagman, James W. Blassingame,
describing bribe of deceased Water Commission member Gardner)
84
United States v. Blassingame, 197 F.3d 271, 276 (7th Cir. 1999) (affirming conviction of
Metropolitan Water Commission member Thomas S. Fuller and his bagman, James W. Blassingame, and
describing payment in cigarette pack)
24
“On May 10, 1994, Fuller, Blassingame and Christopher met at Chez Paul
Restaurant to discuss potential problems with the permit due to Marlboro's dumping
history. Nine days later on May 19, 1994, Christopher, Fuller and Blassingame again met
at Chez Paul, this time without Agent Sofia. There, Fuller expressed his discomfort with
Agent Sofia: ‘I don't even know this man. . . . A man becomes very generous and I get
nervous . . . . Hey, get very nervous.’ Fuller also told Christopher that “I'm gonna get you
it, help you get a permit. After that, I'm through.”
“On June 3, 1994, Blassingame called Agent Sofia for an advance of $2,000 as ‘a
little financial help to hold me over while I'm working on this stuff.’ Agent Sofia agreed
and paid him $2,000 cash the next day. Four days later, Agent Sofia and Blassingame
were meeting at Chez Paul Restaurant when Fuller unexpectedly arrived and told Agent
Sofia that ‘I'm very uncomfortable with you. . . . I'll tell you straight up . . . . I don't know
you. I don't know where you're from or anything. . . .’” 85
6. Synthesis from U.S. stories
Convictions for public corruption in the United States tend to result from
identifiable patterns.
The first pattern relies heavily upon the actions of the person who has been
offered a bribe. The briber approaches the public official with an offer, to which the
official responds in a non-committal manner.86 Immediately following the encounter, the
official reports it to a law enforcement officer.87 The official then contacts the original
corruptor and arranges for a meeting at which the official wears a wire.88 The official
then proceeds to participate in the corruption scheme until it nears completion, at which
point the authorities intervene and apprehend the criminals.89 Whenever the official meets
the briber, their meetings are recorded by audio, video, or both.90 These recordings serve
as the primary evidence at trial, and are supplemented by the testimony of the official and
a variety of other evidence that corroborates what is in the recordings.91 For example,
evidence of recording the sale of an apartment can be used to verify testimony that the
apartment was bought at an inflated price in order to buy off an official.92 This same
sequence of events can also lead to the conviction of an official who is soliciting a bribe.
In United States v. Davis,93 a lobbyist met with a state representative, and the
representative alerted the lobbyist that she would vote for his legislation for $25,000.94
85
Blassingame, 197 F.3d at 278.
U.S. v. Dansker, 537 F.2d 40, 45 (3d Cir. 1976); Williams v. State, 333 So. 2d 547, 552 (Ala.
Crim. App. 1979).
87
Dansker, 537 F.2d at 45-46; Williams, 333 So. 2d at 552. In the ABSCAM investigation, one
United States senator, Larry Pressler, rejected overtures and reported them to the FBI.
88
Dansker, 537 F.2d at 46; Williams 333 So. 2d at 552.
89
Id.; Williams, 333 So. 2d at 552-54.
90
Id.
91
Id.
92
Dansker, 537 F.2d at 45.
93
U.S. v. Davis 967 F.2d 516, 518 (11th Cir. 1992).
94
Id.
86
25
In this pattern the official is motivated to report the bribe offer by one of two
things. One, the official morally objects to the attempt at corruption and agrees to help in
the investigation in order to rid the system of it. Two, the official is motivated by fear.
The fear can come from the unknown consequences of having an illegal relationship with
unsavory characters, buttressed by a fear of the legal consequences that could one day
await him. In none of these cases is witness protection an issue. This is probably so
because in none of these instances were the stakes so high that the criminal would have
an incentive to threaten the official. Generally, those who have been convicted have only
faced a couple of years in prison.95 In United States v. Dansker, the bribers did threaten to
publicize damaging information about the official’s administration, but this did not deter
the mayor from continuing to assist in the investigation.96 These threats may be less
powerful than usual because the good press the official would get from his/her
involvement with the investigation would likely offset any bad press created by the
bribers’ accusation.
The second pattern for unearthing corruption relies upon a cooperating witness
(“CW”) who is in trouble with the law. The CW is either previously aware,97 or becomes
aware of an attempt at bribery.98 The CW agrees to continue his relationship with the
corrupt person under the supervision of the investigators.99 The target of the investigation
is recorded either by audio, video, or both while participating in corrupt behavior and
transactions.100 Once the target has sufficiently tied his own noose, then the arrest is
made.101
The CW’s primary motivation is to alleviate his/her own legal troubles.
Sometimes this comes in the form of immunity,102 while other times it is in the form of
reduced sentences.103 One characteristic distinct to this pattern is the desperation of the
CW. Since the CW is already in trouble, he/she risks less by going to the police. The
increase in danger that the CW faces may oftentimes be outweighed by the benefits
received from the government.
The third pattern is based upon an active investigation or “sting” operation into
corruption by a law enforcement agency. This can be a large, coordinated investigation
such as ABSCAM,104 or a smaller investigation aimed at a specific government
activity.105 The issue of entrapment may become a problem in situations like ABSCAM,
95
Williams, 303 So. 2d at 550-51.
Dansker, 537 F.2d at 46.
97
U.S. v. Dowdy, 479 F.2d 213, 218 (4th Cir. 1973).
98
U.S. v. Brunshtein, 344 F.3d 91, 94 (2d Cir. 2003); Cooper v. U.S., 594 F.2d 12, 14 (4th Cir.
96
1979).
99
Dowdy, 479 F.2d at 220; Brunshtein, 344 F.3d at 94; Cooper, 594 F.2d at 14.
Id.
101
Dowdy, 479 F.2d at 220; Brunshtein, 344 F.3d at 95; Cooper, 594 F.2d at 14.
102
Dowdy, 479 F.2d at 220.
103
Cooper, 594 F.2d at 14.
104
U.S. v. Williams, 705 F.2d 603, 606 (2d Cir. 1983); U.S. v. Kelly, 707 F.2d 1460, 1462 (D.C.
Cir. 1983).
105
U.S. v. Angelilli, 660 F.2d 23, 26 (2d Cir. 1981); Brunshtein, 344 F.3d at 94.
100
26
but so long as officials are not targeted and they become involved by their own will, then
the operation is legal.106
One common feature of all three of these patterns is the role that audits of
government funds and private finances can play in initiating these investigations.
Suspicion is created by the audit, and then followed up by an investigation into the parties
and dealings connected to the money.107 If nothing else, this forces the criminals to
operate in a more complex manner, and increases the number of opportunities for them to
make a mistake.
C. Axioms
A synthesis of the characteristics of the investigations and successful prosecutions
in the case studies, supplemented by discussions with U.S. prosecutors and investigators,
supports a number of axioms about how to organize an effective anti-corruption
initiative.
1. Successful investigations depend on
understanding the informal networks within which
corruption occurs
An investigator cannot successfully investigate and a prosecutor cannot
successfully prosecute that which he or she does not understand. A threshold requirement
for any anti-corruption investigation is to master the informal networks in which
corruption occurs, including the formal relationships and authorities of the participants,
the content of the laws that apply to their dealings, less formal friendship and family
relationships, when and how they interact with each other and with outsiders, and the
language and expressions that they use. Rarely within such networks is everyone corrupt.
Some actively participate in illegal conduct; some oppose the conduct; some simply turn
away. Gradually, as an investigator builds an understanding of the network, the identity
of suspects crystallizes.
a) Confidential informants are necessary to develop an
understand of corruption networks and to select specific
individuals for deeper investigation
Investigators and prosecutors almost always are outsiders to the corruption
networks they investigate and prosecute. They need insiders to educate them on who is
who and who does what. A common first step in any anti-corruption investigation is to
build relationships with confidential informants who have the requisite knowledge.
Sometimes such persons come forward through hotlines or direct telephone, email or
visits. Otherwise they must be approached by the investigative team in ways that do not
scare them off. Many confidential informants are paid for their information; others are
106
107
Kelly, 707 F.2d at 1470.
U.S. v. Cruzado-Laureano, 404 F.3d 470, 479 (1st Cir. 2005).
27
motivated by moral outrage at the corrupt conduct they witness; others are motivated by
internal rivalries with those they accuse of corruption. Because of the diverse and not
always-apparent motivations of potential informants, good investigators rarely rely on a
single informant, but instead develop a set of informants whose information can be
checked against the information received from other sources. Some informants develop
into cooperating witnesses; the cooperation of others is never revealed.
b) Financial investigations and audits can be important
aids to early identification of investigative targets.
Good anti-corruption investigation includes routine or ad-hoc monitoring of the
relationship between the apparent wealth of public officials and known legitimate sources
of income. A public official who drives expensive cars, lives in opulent homes, or takes
high-priced vacations, beyond what could be afforded on the official’s salary and other
legitimate sources or income or family wealth, are natural targets for further
investigation. Access to financial transactions by such potential targets through bankaccount records or otherwise is helpful.
2. Criminal intelligence must be turned into
admissible evidence
An important difference exists between criminal intelligence activities and
investigations aimed at successful prosecution. The former is intended to develop an
understanding by law enforcement personnel of corruption patterns and networks. The
latter is intended to result in convictions of wrongdoers. Both are necessary. As criminal
intelligence activities identify promising targets, investigators and prosecutors must shift
their focus to the development of admissible evidence against wrongdoers. Confidential
informants must be supplemented by undercover agents and cooperating witnesses who
will testify. The elements of specific crimes must form a template for collection of
evidence. Investigators and prosecutors must conduct themselves so that they do not
compromise the admissibility or persuasiveness of useful evidence by violating laws on
eavesdropping or entrapment.
a) Cooperating witnesses must be recruited, often by
threatening prosecution
A distinction must be drawn between testifying witnesses and "informants." Most
informants are “confidential informants” (“CIs” in U.S. law enforcement parlance), and it
is rare to compromise such an informant’s confidential status by having him or her
testify. Testimony almost always relies on “cooperating witnesses,” who typically are
members of the criminal enterprise who have decided to cooperate.
Informants may be recruited by spreading money around. Cooperating witnesses
generally need some other form of motivation, such as being confronted with prosecution
themselves, or having been betrayed by those they accuse. Rare is the successful
28
investigation and prosecution that does not turn on some kind of special vulnerability of
cooperating witnesses.
Typically, U.S. investigators seek to identify persons within a corrupt network
who can provide evidence against those higher up in the network. Such persons become
interim targets. Evidence is developed against them—usually it is easier to get evidence
against lower-level facilitators than against masterminds—and they are confronted with
the evidence. Unless they are willing to provide information and possibly to testify
against more senior participants, they will be tried, convicted, and sent to jail. If they
cooperate, they will be immunized from prosecution or receive lighter sentences. Such a
bottom-up approach was used in all of the case studies and in almost all other U.S. public
corruption investigations.
In occasional cases, potential witnesses come forward because they are afraid for
their physical safety and want protection from law enforcement personnel or because
their consciences no longer permit them to remain silent, as in the case of lawyer Robert
Cooley in the Greylord investigation of Chicago judicial corruption.
The credibility of cooperating witnesses at trial is an important consideration.
Payments to cooperating witnesses will surely be used by the defense to attack their
credibility at trial. Similarly, personal antagonism toward those they accuse, or
expectations of favorable consideration by prosecutors also can undermine the
effectiveness of the evidence they give. Judicial fact finders usually are unwilling to
convict based on testimony by such witnesses alone. They require some form of
corroboration, which can be achieved if a large number of cooperating witnesses testify,
if good forensic evidence is available, such as financial records, or most commonly by
evidence in the form of audio or video recordings of illegal conduct by others.
Cooperating witnesses often assist in obtaining such electronic evidence by wearing
“wires.”
b) Witnesses will not testify unless they believe they can
be protected, and this often means being willing to
uproot themselves and their families to move to a
distant place and foreign culture.
Witness protection is an important tool in anti-corruption investigations,
depending on the perception that those turning against corrupt officials will face physical
threats to themselves or their families. But witness protection is difficult to administer,
even in the United States. It is exceedingly difficult to persuade witnesses to relocate.
Moving someone to a remote place may be almost impossible to accomplish if the
witness has any other alternative, such as not testifying. In several of the public
corruption cases investigated by the FBI, the FBI has offered witness protection and
pressed informants or cooperating witnesses to participate in the witness protection
program, only to be met with refusals. Moreover, many of them hate it when they do
accept protection, especially urban American “wise guys” who are moved to Boise, Idaho
or Brownsville, Texas. Much inertia must be overcome to persuade people to leave
29
friends and family and come to a place where they may not speak the language and where
the culture is very different; the older the witness, the more difficult the problem. A
participant who seeks or accepts relocation must commit him or herself never to have
contact, for the rest of his or her life, with family members or friends. Even if someone
agrees to that condition at the beginning of protection, most are unable to live up to it
over time. Accordingly, a substantial fraction of witness protection efforts are
unsuccessful, not because law enforcement authorities have failed, but because the
protected witness undermines the protection.
When cooperating witnesses live in tightly-knit communities, protecting them
may require relocating them to a foreign country. Offers of cross-border relocation as
witness-protection measures depend on international cooperation; states where witnesses
are to be relocated must be willing to grant visas and citizenship or long-term residence
permission. Getting another country to take them is a huge problem, particularly if they
have been involved in a criminal enterprise. Current restrictions on immigration because
of terrorism concerns and growing xenophobia exacerbate the problem.
Overly attractive witness-protection opportunities, however, especially relocation
possibilities, may induce perjured testimony by individuals desiring a sure way to
emigrate to the United States or elsewhere. While factfinders are unlikely to believe
entirely fabricated testimony, incentives to make up good stories in order to be relocated
are evidence in asylum litigation, and can waste significant amounts of investigative
resources.
Finally, and most importantly, witness protection programs are enormously
expensive. Even when they do not involve relocation, but merely provide enhanced local
security for witnesses, they require around the clock security personnel. This equates to at
least a half dozen full time equivalent positions of the protecting agency. Witness
protection involving relocation involves significant expenditures for travel, subsidy of
living expenses, and possibly the purchase or rental of a dwelling for the witness. These
expenses are ongoing.
3. Electronic surveillance must be conducted to
produce compelling evidence for use at trial
Fact finders in U.S. public-corruption trials have come to expect video or audio
recordings of corrupt conduct by those accused of corruption. Almost any conceivable
cooperating witness is subject to impeachment because he has been paid by law
enforcement officials, because he has a grudge against those he accuses, or because he
has exchanged testimony for not being prosecuted himself. Electronic evidence is not
subject to such attacks. Moreover, defense lawyers have a harder time convincingly
attacking the accuracy and interpretation of recordings than attacking the perceptions of
witnesses. The fruits of electronic surveillance can provide good corroboration and may
be the foundation of a prima facie case.
U.S. law enforcement and intelligence professionals distinguish among
“wiretaps,” “wires,” and “bugs.” A wiretap intercepts telephonic, fax, or email
30
communication involving parties none of whom consent to the interception. A wire is a
recording device used by one of the participants to a communication. A bug intercepts
communications occurring face-to-face without the consent of the participants. The FBI
prefers wires to wiretaps because wiretaps require court authorization, while recording of
conversations or telephone calls by a participant does not. When court authorization is
required, there always is a risk that it may be denied, or that subsequent legal challenges
to the validity of the “probable-cause” evidence submitted in support of the authorization
will be successfully attacked at trial, resulting in the exclusion of the evidence obtained
through the surveillance, thereby dooming the prosecution. Moreover, the burden of
putting together a case for judicial surveillance authorization is substantial.108
Wiretaps, wires and bugs are not silver bullets, however. Audio and video
recordings often are difficult to interpret. Speakers may speak indistinctly against
background noise. Even when their words and sentences can be discerned, they may be
open to varying interpretations. People talk in slang and interrupt each other before
thoughts are completed; people do not dictate perfect sentences and paragraphs over the
telephone or in conversation. Electronic surveillance is far more useful to collect
evidence of ongoing criminal enterprises, when the participants can be caught in the act
of offering or accepting a bribe, than to obtain evidence of past crimes. Sometimes,
informants will try to induce suspects to talk about past events on tape, but it rarely
works. The transcripts of the electronic surveillance from the case studies quoted in
Appendix I show how evasive the recipients of the bribes were and how forcefully the
undercover agents had to coax them into saying something or doing something
incriminating.
Electronic surveillance is also labor intensive. Someone has to listen to every
conversation. It takes as many minutes to listen to a conversation as it did for the
conversation to occur. Producing transcripts is even more time-consuming, and if the
quality of the recording is not good, it can take a very long time indeed. Often, two
listeners will disagree on what they hear; one may hear something clear as a bell while
the other hears only noise.
Moreover, with the advent of audio and video editing software, usable on any
small computer, the reliability of recordings obtained through surveillance easily may be
drawn into question. Professionalism and rigorous chain-of-custody are essential.
Despite the difficulties inherent in electronic surveillance, it is extremely difficult
to get a conviction in a corruption case without it. Electronic surveillance is most
effective if it is deployed against specific targets and classes of transactions. It is more
likely to be successful if deployed in ongoing criminal enterprises, and it must be
narrowly targeted to make the workload of processing the results tolerable. In addition, of
course, as in all of the case studies, electronic surveillance cannot occur unless
The Inspector General of the Justice Department recently issued a report on the FBI’s
compliance with Justice Department guidelines on the use of confidential informants and undercover
agents, and on the use of body wires. http://www.usdoj.gov/oig/special/0509/.
108
31
undercover agents and/or cooperating witnesses participate in obtaining it and are
available to authenticate it at trial.
4. Experienced undercover agents usually are
necessary to manage informants and cooperating
witnesses and to conduct electronic surveillance
As the preceding axioms suggest, successful anti-corruption investigations require
effective design and execution. Confidential informants and cooperating witnesses cannot
do it on their own. Success depends on undercover agents and case managers.
Undercover agents are almost always more skilled and persistent than cooperating
witnesses in steering conversations with suspects that produce admissible and convincing
evidence on video or audio recordings. Undercover agents are more likely than
cooperating witnesses to place themselves in physical danger. They are likely to be more
believable at trial.
Undercover agents can be effective only, however, if they share ethnic and socioeconomic characteristics of targets, or have a cover story that explains their interest in
dealing with the targets. Ethnicity often binds criminal enterprises together, and someone
of a different ethnicity or language background stands out like a sore thumb, and is a
target for suspicion and mistrust. Infiltration of the Ku Klux Klan was possible only
because FBI agents with Southern backgrounds were available to work undercover.
Success in the Silver Shovel investigation in Chicago required undercover agents who
were presented as businessmen involved in the activities being infiltrated. The fake
lawsuit in Greylord was believable only because it was filed by lawyers regularly
litigating before the targeted judge.
In some cases it may be possible or necessary to introduce an undercover agent of
a different ethnicity. In the ABSCAM investigation, for example, the imaginary sheik
was presented as an Arab while the defendants were Americans of various non-Arab
nationalities. The use of such an undercover agent effectively depends upon the nature of
the cover story for the “sting,” if one is used. For example a sting premised on
penetrating human trafficking rings might plausibly involve an undercover agent from a
region other than the region targeted by the investigation if the other region is supposed
to be part of the supply chain of human victims of the trafficking—either the source or
destination.
5. Anti-corruption campaigns cannot succeed without a
professional criminal justice infrastructure
a) Investigators, prosecutors and judges must have the
requisite skill, independence and resistance to
corruption
Investigators must have the requisite expertise and must not depend on targets or
friends of targets for job tenure or resources.
32
Public corruption investigations are more challenging than investigating street
crime. Some members of an effective investigation team must be good sociologists to
understand how corruption networks operate through extra-legal channels. Others must
be empathetic enough to build trust of confidential informants and cooperating witnesses.
Others must understand the technology of eavesdropping equipment. Others must know
the law. Some of them must have the discipline, acting ability, courage, and credibility to
operate undercover and to testify about it afterwards. In many investigations, accounting
knowledge is necessary. Auditors and accountants are important, but the number of cases
in which they are needed varies with the sophistication of the criminal enterprise. It does
not take much training to confront someone making €10,000 a year with the fact that he
has €1 million in the bank.
Rarely are all of these skills found in a single investigator; they usually are
possessed by specialists comprising a multi-investigator team. Assembling and managing
such a team requires good administrative skills, knowledge of best practices in anticorruption investigations and the kinds of leadership qualities that earn a team leader the
respect of team members.
But skill is not enough. Investigators also must be brave enough to endure actual
or perceived threats to their future economic welfare and to their own physical safety and
that of their families. Giovanni Falcone was, after all, killed. They must have sufficient
character to resist offers of substantial amounts of money from those they are
investigating. Their loyalties must be to the investigation and not to the targets.
Resources for the investigation must not be controlled by those being investigated.
Prosecutors must have the requisite skills and not depend on targets or friends of
targets for job tenure or resources. Anti-corruption prosecutors and investigators must
work closely together from the beginning to the end of an anti-corruption investigation.
Any idea that investigative agencies work on their own to develop a complete package to
be delivered to a separate prosecutorial agency at the end of the investigation is fatally
flawed. Prosecutors must provide investigators with guidance throughout an investigation
on what can obtain a conviction. Both investigators and prosecutors must collaborate on
selecting lower level targets to be threatened with prosecution in order to recruit them as
cooperating witnesses.
Once an investigation is complete, some members of the prosecution team must
be good enough trial lawyers to present the available evidence in a way that will convince
a judicial factfinder to convict.
Prosecutors must have the same levels of persistence, bravery, and incorruptibility
as investigators. A perfect investigative team is worthless if the prosecutors to whom they
deliver their investigative results compromise the prosecution by not pursuing it
aggressively or by leaking the results to the targets.
And, of course, none of this does any good unless a competent, courageous and
honest judiciary will apply the law to the facts uncovered by the investigation and convict
33
when conviction is warranted. Judicial forums deciding the case must not depend on
targets or friends of targets for job tenure or resources.
All of the case studies show that an outside investigative, prosecutorial and
judicial force was necessary for success. In the U.S. cases, the investigations were
conducted by the FBI, the prosecution was undertaken by the United States Attorney’s
Office, and the cases were tried by federal judges. These federal institutions, of course,
are not “foreign” in the sense that they are not part of the United States legal system.
They are, however, foreign in the sense that they are federal instead of state or local. FBI
agents typically rotate throughout the United States, and therefore do not depend upon
local networks for career success. Federal judges enjoy life tenure, and therefore do not
depend upon any institution, federal, state or local, for their continued economic welfare.
U.S. attorneys, on the other hand, typically are recruited from the local legal community,
and go back to it after their service is complete. In this regard, it was widely perceived
that current public corruption investigations in the Chicago area would not have occurred
but for the appointment of U.S. Attorney Fitzgerald who was widely and accurately
regarded as being independent, and therefore in some sense “foreign” to the local legal
culture.
It is hard to imagine that the Philadelphia Police Department would have
successfully investigated the President of the Philadelphia City Council, or that the
corrupt state judiciary in Chicago would have convicted Greylord targets, including
several judges.
It is hard to imagine that the Watergate Investigation would have been successful
if it had been left entirely to President Nixon, acting FBI Director Gray, and Acting
Attorney General Kleindeinst. It was only because of the independence and the
“foreignness” of Special Prosecutors Cox and Jaworski, the independence of the
Washington Post, and the President’s democratic political antagonists in the Congress,
that the investigation succeeded—and of course the professionalism of the FBI, including
the decision by its Deputy Director to betray the Attorney General’s and President’s
effort to thwart the investigation. Italian investigative magistrate Falcone, though
formally part of the Ministry of Justice, attained independence because he was astute in
building public support for himself personally.
It is extremely difficult to provide the conditions identified in this axiom and the
two preceding ones absent a culture of professionalism, which takes a long time to
establish, and political will at the top. The need for independent professionalism gives
rise to the temptation to bring in outsiders to investigate, prosecute and judge, but
outsiders usually lack the social and cultural connections to make an investigation
successful, and they also the lack the legitimacy that is necessary to build public support.
b) Investigative journalism can complement official
investigations but it cannot succeed on its own.
Success in rooting out public corruption depends on political will. Political will,
in turn depends on public support. Public support depends on press and media channels to
34
inform the public about instances of corruption and about efforts to hold accountable
those who engage in it. In other words, investigative journalism is an important part of
the anti-corruption arsenal. In the Watergate investigation, the Washington Post stories
built public support for the Special Prosecutor, even as President Nixon used all the
powers of his office to undermine the investigation.
Investigative reporters also have access to sources not available directly to
criminal justice authorities; they give informants another market for their information. If
the media can protect its sources, it may be more attractive than regular law enforcement
channels. It is not clear where else FBI number two man Mark Felt could have gone,
except to the press. On the other hand, when informants go to reporters, they may be
depriving law enforcement of the same sources. Moreover, investigative journalism is
time-consuming and expensive. If it is done right and it really exposes something that
would otherwise not be exposed, it is useful. But law enforcement has to follow up, or the
exercise is fruitless, frustrating and potentially dangerous for reporter and source.
c) Anti-corruption institutions must have the
requisite legal, financial, and technological resources
Anti-corruption teams cannot assemble the evidence necessary without tools for
supplementing their human resources. State-of-the art eavesdropping equipment is
essential. Criminal procedure must permit them to engage in eavesdropping, to deal with
confidential informants and cooperating witnesses. They must be able to subpoena
financial records. They must be able to execute search warrants before targets have notice
and the opportunity to hide evidence. Evidence obtained through undercover means must
be admissible at trial as long as the procedural requirements are followed.
IV.
Challenges in adapting best practices to Kosovo
A. Introduction
In any society with officially reported 60% unemployment and little street crime,
a sizeable underground economy must be thriving. Any underground economy thrives on
corruption, at least of a petty sort. Such corruption gets embedded in the culture. A broad
anti-corruption campaign in Kosovo premised on U.S. definitions of “corruption” is
doomed to failure. Nevertheless, it may be possible to target certain types of corruption
successfully, if the type of corruption targeted is not conduct that large segments of the
population rely upon for survival.
This section takes the theory and experience from parts II and III, and considers
how they could be applied to corruption in Kosovo, recognizing that conditions in
Kosovo distinguish it in significant ways from conditions in the United States, Italy, and
other places from which best-practice axioms are drawn.
35
B. Application of Theoretical Models to Kosovo
Consideration of the Neild framework109 instills pessimism about the prospects
for reducing or eliminating public corruption in Kosovo. His military-efficiency factor
does not oppose corruption; it leads certain parts of the Kosovar public to embrace it.
Kosovo’s progress toward independence occurred because of the KLA, which was not an
efficient military machine, but instead was financed, organized, and operated in an
informal manner in which corruption is widely believed to have played a necessary role.
Most close Kosovar observers of the KLA criticize KLA financers for enriching
themselves personally (whether or not they actually did so), but at the same time shrug
and say they suppose that was a necessary price of raising money, at least some of which
was put to effective use in arming and equipping the KLA.
Kosovo’s long history of resisting “oppression” by “occupying forces”—the
Ottomans, then the Serbs, and then UNMIK—encourage a spirit of defiance, secrecy, and
non-compliance with formal norms, including formal norms of honest government. In
this context, reliance on informal family and friendship connections in order to survive
and prosper also increases the reluctance to turn anybody in. Ratting out somebody in
Kosovar society means betraying the bonds which have permitted everyone to survive.
In addition, there is a general mistrust of government, based on a belief that it is
ineffective, not motivated by improving the lives of the ordinary people, and thoroughly
corrupt. This leads to a preference for “informal” private enterprise, and the valid belief
that some forms of corruption are necessary to provide space for informal
entrepreneurship.
The international embargo on the former Yugoslavia, growing out of the wars in
Croatia and Bosnia in the early 1990s, created enormous financial temptations for
Kosovar Albanians to participate in smuggling rings. As democratic political institutions
in Kosovo were constructed after UNMIK took over civil administration, a “closed-list”
system for electing members of the national and municipal assemblies prevented the
emergence of new political faces willing to criticize established organizations. Having
parties’ names on the ballot instead of individual candidates’ names reinforced party
control and made it difficult for new faces to build effective political followings.
Although facts are hard to come by, it is widely believed that Kosovo is an
important hub for drug trafficking tying together demand in Western Europe and the
United States with sources of supply in the Middle East and Asia. As everywhere else,
drug trafficking generates enormous revenue and can take place only if formal legal
norms are evaded. That combination makes drug trafficking an enormous pro-corruption
factor.
Kosovo also is believed by some outsiders to be a hub of human trafficking, some
of it aimed at supporting demand by internationals stationed in Kosovo, and some of it
109
See § III. A.
36
transit traffic between Europe and other parts of the world. Human trafficking and its
economics are less well understood than drug trafficking, but it is safe to say that any
substantial amount of human trafficking in Kosovo is a serious corruption problem
because it could not be carried out without acquiescence by some public officials.
Kosovo, unlike oil-rich nations, may less subject to internationally procured
corruption aimed at obtaining “advantageous access,” to use Neild’s term. Kosovo is not
entirely free from this threat, however, because of the belief that its large lignite resources
and potential as a supplier of electricity to Europe create opportunities for foreigncompany bribery of public officials in order to obtain advantageous concessions and
contracts.
While the Neild framework provides little hope for short-term effective anticorruption efforts in Kosovo, two of his observations may light a pathway. First, his
emphasis on political self-seeking pragmatism suggests that a charismatic new political
face might see the possibility of making a career and gaining power from a highly visible,
results-oriented anti-corruption campaign. Such a campaign might resonate with the
general public. In other words, the Falcone case study might be applied to Kosovo with
good results. The possibility depends, of course, on such an ambitious and charismatic
political figure emerging from the Kosovo population to lead an investigative and
prosecution initiative.
Although the U.S. experience in rooting out urban corruption suggests the
advantages of a “foreign” investigative service and prosecutor—necessary to escape a
local political will favoring corruption. It also must be recognized that anything foreign
about an anti-corruption campaign is likely to be rejected on the grounds of local ethnic
and national solidarity.
Public resonance depends on whether the center of gravity of public opinion can
be made to believe that the daily lives of most people would be better if corruption were
lessened. One affirmative possibility is the belief that job creation, economic progress,
and the social welfare safety net would be better if the government were less corrupt. In
other words, an effective political entrepreneur might be able to convince the general
public that the reason they do not have jobs, and cannot get good public service, or
adequate pensions or healthcare is because old-style political leaders are stealing the
resources, which otherwise would be adequate to provide what the public wants.
Balanced against this possibility is the countervailing belief by many in Kosovar
society that they depend upon corruption in order to advance their own individual and
family interests. As an effective anti-corruption effort takes shape, it is likely that
Kosovo, like most other societies, would move from general public support for an anticorruption campaign into resistance to any change in the status quo by concentrated
interests with vested advantage in current styles of corruption. In other words, the fate of
any anti-corruption campaign would require artful politics and a kind of high-wire
balancing act to get something done before the steam of broad public support is overcome
by the cold water of vested interests, which currently include most of the political elites.
37
C. Four Preconditions
In order to be successful, any Kosovo anti-corruption effort needs (1) a political
will to fight corruption; (2) a willingness of victims to report corruption; (3) competent,
honest, and courageous prosecution and investigation resources; and (4) a competent,
honest, and courageous judiciary. Parts one and two can be grouped together and
considered essential. Both of these primary conditions must be present for any anticorruption campaign to be at all effective. Once political will and a willingness of victims
to report corruption gains momentum, it then becomes possible for the political
establishment to develop parts three and four.
The first precondition, political will, is broad in scope and refers to the credible
intent of party leaders, public office holders, candidates for public office, civil society
watchdogs, and journalists alike to attack corruption. Not everyone in government or civil
society must have the political will to attack corruption, but some of them must, and
those having the will must occupy strategic positions of power. The necessity of political
will can be illustrated through examples. Imagine an ambitious young Kosovar
prosecutor hot on the trail of one of Kosovo’s better known businessman’s company’s
links with drug smuggling. He collects all the right evidence to create a slam-dunk case
against the company, only to be tapped on the shoulder at the last minute by his boss and
reassigned to another case. Although the prosecutor’s efforts demonstrate a flicker of
political will, it is quickly and easily extinguished. Or, consider a Kosovar investigative
journalist who is proud of his recently completed story on collusion among bidders in
Kosovo’s ongoing privatization process. He hands his well-sourced and well-documented
story to his editor. The editor reacts negatively because one of the bidders colluding in
the privatization process is a good friend of the editor. The story gets shelved as a result.
The hypothetical prosecutor and journalist lack supporters in strategic positions of power.
Mobilizing political will requires exploring the interplay among the various actors
who may have—or lack—political will, and their dependence and effect on public
resolve. The objective of any anti-corruption campaign must be to build political will
among a small number of political actors and to trigger a positive spiral of influence
among themselves and the remaining political actors. In fact, the synergy that is created
by the sincere efforts of just two influential political actors may be enough to create a
domino effect among other relevant political actors. Consistent investigative journalism
and press reports on corruption coupled with a sincere anti-corruption platform in the
campaign of a legitimate candidate for prime minister would put pressure on those
already in power to clean up their act.
In the complete absence of political will, the public’s resolve is the only thing that
can be counted on to bolster anti-corruption energies. A public focused on corruption
serves to create or otherwise intensify political will among political actors because the
behavior of political candidates and office holders is driven by what they think will get
them elected or reelected.110 As long as the public opposes corruption, a political
110
Neild, supra note 11, at 9 [hereinafter “Neild”].
38
candidate who gets the public to believe that he or she will fight corruption effectively
will gain support.
Attitudes of the international community are key to the political-will equation.
Even if public support for real anti-corruption efforts exist, and even if Kosovar political
entrepreneurs emerge who believe they can advance their careers by successfully
ferreting out corruption, the resulting political will may be for naught if the international
community continues to exercise substantial control over the legal system and the
international decision makers do not have the political will. There is substantial reason to
believe that crucial actors in the international civil administration in Kosovo have not
seen it in their interests for public corruption to be exposed and prosecuted. They have
other priorities, promoting human rights and interethnic tolerance, avoiding an outbreak
of violence, and steering public opinion in geopolitical directions sought by the
international community. To achieve any of their goals, the internationals need
cooperation by effective Kosovar political leaders. They fear that any serious anticorruption campaign would lead to the top. Whether or not this is true, the fear leads
them to under fund the anti-corruption resources that exist, and to thwart anti-corruption
investigations that appear likely to lead somewhere significant. In their view, political
corruption in Kosovo is not a priority problem. At worst, it is a slowly developing cancer
that will cause disaster long after they have rotated to other positions in their professional
lives. Unlike the threat of interethnic violence or political chaos, it is not an immediate
threat to short term success or to their careers.
Worse than that, the few high profile corruption cases that have come to light
have involved, not senior Kosovar political leaders, but senior officials of the UN civil
administration. So a contributing factor to the lack of political will is that a significant
part of the civil administration—the international civil administration—in Kosovo
apparently has a culture of corruption of its own.
The second precondition recognizes the importance of victims of corruption being
willing to report corruption. All the political will in the world amounts to nothing if no
participant is willing to report wrongdoing. Not all participant reports are entirely
voluntary, of course. The case studies in § III. B. show that, in most of the high profile
U.S. cases, the crucial cooperation from participants in corruption was obtained through
coercion—threatening to prosecute them. But the need for voluntary cooperation,
including victim reports, is essential in most cases because anti-corruption investigators
need to know where to direct their attention. If there is a complete conspiracy of silence
among perpetrators and victims of corruption, it will be difficult for well founded
suspicions to crystallize. Some victims of corruption, like victims of almost any other
crime, are motivated to seek justice due to the damages they suffer; emotionally,
financially, or otherwise. Victims balance their desire to report wrongdoing, however,
with the potential negative consequences that are likely to arise by doing so. Many
factors convince Kosovar victims of corruption to remain silent depending on their
circumstances. Officeholders may fear becoming politically isolated and ostracized.
Companies may fear a loss of business, especially if much of their business activity
comes from the government. And on an individual level, political figures, and
businessmen, as well as everyday citizens may fear for their personal safety and that of
39
their families. It may be easy for victims of corruption to rationalize that if they stay
silent, their turn to benefit will come. This is especially true if they conclude, based on
their own experience, that they should be willing to pay a bribe next time.
When victims of corruption analyze whether they will choose to report
wrongdoing, how they believe their grievances will be handled often tips the scales in
favor or against reporting the problem. If victims detect apathy among political actors in
the fight against corruption, they will be deeply discouraged from speaking up and
threatening the status quo. They risk their future in exchange for no benefit either to
themselves or their society.
Both a willingness by victims to report corruption and political will are necessary
in the creation and support of competent, honest, and courageous investigation and
prosecution resources, the third part of the anti-corruption platform. In the absence of
either, even the most dedicated, competent, and resourceful investigator or prosecutor
will become frustrated and eventually give up.
Applying axiom number 0 leads to the following conclusions regarding the third
precondition: Investigative resources should include a Kosovar version of the United
States’ Government Accountability Office (formerly the Government Accounting Office)
and FBI. The Kosovar version of the Government Accountability Office would be
responsible for government audits which the Kosovar version of the FBI could utilize as
leads for further investigation. These investigative resources would then ideally work
seamlessly with a competent, honest and courageous prosecution.
The establishment of a special anti-corruption prosecutor for Kosovo could be
useful. Such an institution could be insulated from those centers of political power that
lack the political will—as long as the institution could be linked to and supported by
some center of political power that has the political will. Designation of a special
prosecution force could facilitate recruitment of individual members of the investigation
and prosecution teams that have the requisite skills and personal qualities. A special
prosecutor could achieve the prominence and public respect necessary to make him or her
an influential political force in building public support. A special prosecutor could not be
effective, however, unless the office is given the resources and the legal authority to
proceed independently. “Watchdogs,” and “fact-finders,” are mere window dressing if
they depend on the regular investigative and prosecutorial authorities to follow up.
Insisting that accusations of corruption be handled through regular institutional channels
is a recipe for inaction.
The effectiveness of adequate investigative and prosecutorial institutions is
supplemented through press reports, NGO activities, and political-party initiatives.
Achieving the goal of building political will and popular support requires the concerted
action by all elements of political and civil society. Without the threat of prosecution and
legal punishment, however, anti-corruption efforts are about as intimidating as a pit-bull
without teeth. This is especially true for businessmen in private industry and politicians in
Kosovo’s current closed-list system of elections who can rarely be harmed by the
decision of Kosovo’s citizens to change their vote.
40
The fourth precondition: the necessity of a competent, honest, and courageous
judiciary is the final link to an effective anti-corruption effort. Imagine a Kosovo that has
turned the corner on its anti-corruption efforts. A strong political will is putting heat on
corrupt politicians to become more ethical and transparent. Government audit reports
indicate several ministries have misappropriated funds over the past fiscal year. Picking
up where the audit reports leave off, a Kosovar FBI investigates the ministries rigorously.
They wiretap phones, develop relationships with informants, wire undercover agents and
confidential informants, request search warrants, and subpoena the personal financial
information of those at the top of the applicable ministries. Once enough evidence is
gathered to make a case, independent prosecutors charge and prosecute the accused with
their crimes. Judges, accepting bribes from the accused, or merely acting out personal and
political loyalties, disallow key evidence and the targets are declared not guilty. Such a
system would produce no more success than a system in which none of the preconditions
are present. Without a competent, honest, and courageous judiciary, anti-corruption
efforts are almost entirely in vain.
Judicial reform takes time and perseverance because it requires inculcating a new
professional culture for the judiciary, which, in turn requires significant turnover in
personnel. Establishing special judicial bodies can sidestep some of the challenges in
reforming the entire judiciary, but special judicial bodies, especially if they utilize
international judges, can face legitimacy problems. Any opportunity for those
investigated to claim that they are being targeted for political reasons by outside forces
undermines the requisite political will and popular support for punishing them.
D. Differentiating Types of Corruption and Setting the
Right Priorities
Development of any of the preconditions for a successful anti-corruption
campaign in Kosovo suffers from a lack of precision and sense of priority in addressing
different types of corruption.
“Corruption” is a vague concept that has been overused, skewed, and distorted
over time. Differing cultural perceptions of what is and is not corrupt behavior
exacerbates confusion surrounding the word. Robert Neild’s definition, quoted earlier, is
a good starting point: “The breaking by public persons, for the sake of private financial or
political gain, of the rules of conduct in public affairs prevailing in a society in the period
under consideration.”111 This specific definition successfully molds broader definitions
which simply describe corruption as “immoral behavior” into a definition that is more
useful operationally. In addition to embracing Neild’s definition, it is crucial for Kosovo
to recognize that they have limited anti-corruption resources; resources which need to be
utilized wisely. For this reason, it is imperative that those wishing to eradicate
corruption’s corrosive effects learn which corrupt practices are hurting society the most,
and then prioritize their anti-corruption efforts in a way that eliminates the most
damaging corrupt practices first.
111
Neild at 6.
41
Corruption is paradoxical in that it runs rampant in many sectors of even the most
advanced societies, and yet is a major factor in crippling nations’ political and economic
progress. The paradox is explained by the simple realization that not all corruption is
created equal: lying about a rival political candidate’s position on an issue in order to
attack a straw man is corrupt and damaging to democratic politics, but not as corrupt and
damaging as buying votes. Buying votes is less corrupt and damaging than having one’s
political rival assassinated. Yet one can correctly claim to be fighting political
“corruption” by attacking the least damaging form.
This section distinguishes among different kinds of corruption particularly
relevant to Kosovo. Going in order from less harmful to more harmful, it begins with the
effect of a gray economy history, continuing with tax evasion, bribery, procurement
kickbacks and partnerships, and embezzlement in order to identify the most debilitating
forms of corruption.
If one accepts a definition of corruption in which anyone who breaks the law for
personal gain is corrupt, then everyone involved in Kosovo’s pervasive and historic gray
economy is corrupt. “Gray economy” in this context refers to the flow of goods through
illegitimate channels. The channels may be illegitimate because they are unauthorized by
the manufacturer or producer.112 They may be illegitimate because they bypass customs
duties, sales taxes, and municipal licensing requirements. Establishing and maintaining
such channels often involves bribing customs agents and other government employees.
Cigarettes and alcohol are commonly mentioned as products that are often smuggled into
other countries—including Kosovo. Other products such as jewelry, electronics, and
prescription medicine are less noted, but nonetheless frequently smuggled as well due to
their homogeneity in quality, but disparity in price among various countries.
In understanding whether Kosovo’s thriving gray economy is detrimental to
Kosovo’s progress, it is useful to put this activity in a “who wins and who loses”
framework. For example, suppose a Kosovar successfully smuggles Marlboro cigarettes
into Pristina and bribes various customs officials nominal amounts in order to do so.
Assume the going rate for a legitimate pack of cigarettes in Pristina is one euro and the
smuggler is able to sell one for fifty cents. When a Kosovar customer decides to buy the
discounted pack of cigarettes from the smuggler, the customer wins, the customs officials
win, and the smuggler wins. In contrast, the government and perhaps the tobacco
company lose, depending on whether the cigarette retailers would be able to sell the same
number of cigarettes at one euro. (It is conceivable that the tobacco company could win
as well if more cigarettes are sold also at the lower price. It is a matter of the price
elasticity of demand for cigarettes.) All three “winners” in this scenario are likely to
spend the money that they earned or saved on productive resources within Kosovo’s
private economy. The “losers” in this scenario would be more likely to spend money
outside of Kosovo (in the case of the tobacco company), or channel the money to
unproductive resources such as palatial public offices, big homes, or personal bank
112
This category includes goods that infringe copyrights, patents, trademarks or misappropriate
trade secrets.
42
accounts, given the pervasiveness of other types of corruption and misuse of public
funds.
This type of corruption might actually stimulate economic growth and job
creation, and surely would redistribute income toward the economically disadvantaged —
given that the Kosovar customer saves on his purchase and low income people sell the
smuggled cigarettes on the streets. Or, consider street vendors and kiosks or unlicensed
minibuses operating on the streets of Kosovo cities. The proprietors of such activities
earn a modest living and also provide inexpensive access to small-value retail items and
to transportation around the cities. If minibuses continue to operate after the fall of 2006,
they would be “corrupt” because the Pristina municipality has prohibited such activity.
Though justifications may exist for the prohibition, it is far from clear that prosecuting
them for their “corruption” would be socially beneficial. Indeed, it might actually
enhance corruption if they can avoid prosecution by paying bribes to public officials. 113
If Kosovo is to get serious in an attack on corruption, bleaching the gray economy
would not be a good place to start.
Widespread tax evasion in Kosovo is another formally corrupt activity that can be
beneficial, and at the very least less harmful than other forms of corruption. Tax evasion
can have a positive effect on society if the money not paid in taxes is reinvested in local,
productive assets instead of inefficient government expenditures. Suppose an owner of a
retail outlet forgoes paying VAT and instead uses the money saved to expand his store or
stock his shelves with more or better merchandise. Whether this is harmful to the society
depends on the relative effects of the private investment by the retailer, compared with
how the same money would have been spent by the government. When government is
inefficient, corrupt, and skews its priorities toward perks for public officials, the society
may benefit from diversion of tax revenues into the private sector. A society needs
national resources to be in the hands of those who will use them most efficiently toward
society’s development. Tax evasion should be low on the list of priorities in the fight
against corruption.
In contrast to the gray economy and tax evasion, bribery of senior officials
(including kickbacks) is a form of corruption that rarely is beneficial to society. Small
“facilitating” bribes to lower level officials, as in the prior example of a smuggler bribing
customs inspectors may be efficient. Bribery shows its ugly face when a small, nonrepresentative sample of the population offers items of substantial value to public persons
in power to create policy, circumvent laws, or otherwise induce the public figure to do
something he or she would not have otherwise done which is not in the public’s interest.
When combating corruption with limited resources in Kosovo, it is desirable to
turn a blind eye to corruption at the low levels of society and focus on the upper realms of
113
An informal, short-term investigation by coauthor LaMirand in early June, 2006, however,
suggests that such bribery is not common with respect to the kiosk prohibition. See [LaMirand essay on
Operation Kosovo Web site].
43
society. Having customs officials and clerks taking bribes is much less harmful than
having public ministers, or heads of political parties, accepting bribes.
Particularly relevant to Kosovo today is bribery in the form of procurement
kickbacks and partnerships. Although Kosovo is in transition to a private economy, some
65% of Kosovo’s GDP still comes from the public sector.114 Many large contracts are
awarded through the power vested in government employees and are subject to the
temptations of kickbacks and illicit partnerships. Suppose two private asphalt firms bid
on a tender by the Ministry of Transportation. Furthermore, suppose that Company A
offers better quality and price, and would win the tender in a fair and objective bidding
process. Knowing this, Company B offers the Minister a ten percent kickback in the
value of the contract to be wired to his personal bank account when the contract is
awarded. Again it helps to evaluate this scenario in a “winner-loser framework.”
Company B and the Ministry win, while Company A, the morale of honest employees of
the ministry, and the public (through an inferior highway) lose. The resulting harm of the
corruption is lessened or magnified according to the actual gap in asphalt quality and
price between Company A and Company B. Very often, companies who offer
procurement kickbacks and illicit partnerships to obtain contracts are so inefficient and
unaccountable that the money spent by the government is completely wasted—as if no
asphalt were delivered at all.
One type of corruption that offers no redeeming qualities is embezzlement.
Individuals’ stealing government funds directly is a form of corruption that can be
absolutely crippling to a society, depending on how much is stolen. Not only does
embezzled money not get spent on its intended purpose, but also, money embezzled by
government officials oftentimes goes directly into secret foreign back accounts and is
later spent outside of the country instead being reinvested, however inefficiently, within
the country. Embezzlement in a capitalist economy is especially malignant because,
unlike cigarette smuggling, it shifts income to the already privileged rather than to the
disadvantaged.
An effective anti-corruption campaign in Kosovo must pick the right targets. The
temptation is high to focus on petty corruption; that poses the least risks to business and
political elites. The most damaging types of corruption like embezzlement, kickbacks,
and bribery occur at the highest levels of government. That is where anti-corruption
campaigns should focus. To spend limited anti-corruption resources on anything else is
distracting and wasteful.
V. Recommendations
This section builds on the information and arguments developed in earlier
sections to propose the elements of an anti-corruption strategy for Kosovo that has the
best prospects for success. It begins by postulating crucial indicia of success, and then
reviews how the preconditions for success can be sought, and how investigative and
“ Kosovo Budget,” USAID http://www.usaid.gov/policy/budget/cbj2006/ee/ko.html
114
44
prosecutorial resources best can be organized, drawing upon the best practices considered
in § III.
A. Measures of Success
One of the pervasive problems in evaluating anti-corruption campaigns in any
society is how to determine if they have been successful and whether they were serious in
the first place. When broad public concern about public corruption exists, it is easy for
public officials and political candidates to promise to root out corruption, even when they
have no serious intent of doing so. Indeed, they may often be corrupt themselves, and
surely not desirous of exposing and prosecuting their own corruption or that of their
supporters. The same thing is true in Kosovo. Political dialogue rings out with
accusations of corruption and promises to expose it.
Accordingly, any serious anti-corruption effort in Kosovo and those interested in
it must have some relatively straightforward measure of success. Simple measures are not
hard to identify. Any serious anti-corruption campaign should result in the prosecution
and conviction of at least one high level public or party official, and at least one
significant businessman, early—say within a year and a half or so—of Kosovo’s
independence.
If neither of these things happens, two possible explanations exist: there is no high
level corruption in Kosovo, or the four preconditions for successful anti-corruption
efforts do not exist.
It is implausible in the extreme that no high level public corruption exists in
Kosovo. Where there is smoke there is fire, and there is a lot of smoke in Kosovo. Not
only that, but the conditions in Kosovo, as explained in § IV. A. and § IV. B., are
conducive to high level corruption. Accordingly, this explanation for the absence of high
profile investigations, prosecutions, and convictions can be attributed to the absence of
other preconditions: public will, victim reporting, committed and honest investigators and
prosecutors, and a competent, honest, and fearless judiciary. If the political will exists,
everything else will fall in line or be exposed publicly. For example, if top political
leadership wants to investigate high level corruption and discovers that its investigative
and prosecutorial resources are inadequate to do so, it can obtain outside help in training
or recruiting such resources. If the high level political will exists, but there is a paucity of
victim reports, informers can be recruited through an ABSCAM like front. If the other
preconditions exist but are thwarted by a failed judiciary, the problem will be evident for
everyone to see: prosecution of high level officials would be brought, but the courts
would acquit them.
B. Four Kosovo Hypotheticals
The assessment of priorities and the deployment of resources benefits from
having a concrete factual context within which to consider them. This subsection offers
four hypothetical examples of corrupt activities likely to be going on in Kosovo now.
45
1. Public corporation procurement: member of the board
bids, loses, causes re-evaluation
Two companies are engaged in the bidding process for this year’s highway
improvement program largely effectuated by public tenders at the national and municipal
levels. Company A consistently delivers a quality product at a reasonable price. On the
other hand, Company B is known to under-deliver on its relatively expensive previous
government contracts. The tender process is long and arduous, but after the process is
complete, Company A rightfully wins the highway contract.
The majority owner of Company B is also the owner of a private local university
which has supplied the Ministry of Transportation, along with various other ministries,
graduates with close personal connections to the owner. As a result of these close
personal ties, the owner of Company B is able to bribe certain individuals in the Ministry
to nullify the decision and ask the companies to resubmit their proposals under different
criteria; criteria more favorable to Company B. The owner of Company B offers a 10%
kickback on the contract to those in the Ministry responsible for causing the re-evaluation
and eventual granting of the contract to Company B.
Quality electronic surveillance would be crucial to proving this type of corruption.
Before electronic surveillance can be a part of an investigation, however, informant type
relationships with individuals on the inside of the ministry must be developed over time.
These informants can be motivated by civic duty, anger at others on the inside, or simply
by the thrill of performing undercover work. Some of these informants may turn into
cooperating witnesses; witnesses that will wear a wire and get others to say incriminating
things on tape. If the transaction is particularly sloppy, and officials immediately deposit
funds they were bribed within their bank accounts, then those records can also be
subpoenaed to corroborate the wrongdoing that electronic surveillance and cooperating
witness testimony suggest.
2. “You were the winner, but we are going to reopen bids
unless you contribute $1 million to the fund of my party
leader”
In a variant of the preceding hypothetical, the successful bidder, Company A, is
approached by a high level ministry official—or more likely an intermediary acting on
behalf of the official—and told that the project will be rebid under different conditions
unless the successful bidder agrees to make a substantial contribution to a charitable or
political fund of the leader of the minister’s party. This type of corruption would be just
as harmful as the type described in the preceding hypothetical, but it would be more
difficult to investigate and prove. Political and charitable contributions are entirely legal,
unlike bribes paid to public officials. The conduct is corrupt only if there is a cause-andeffect linkage between the contribution and a decision by a public official.
In this hypothetical an investigation might well begin by “following the money.”
Lists of contributors to the party or charitable fund would be compared with lists of
recipients of public contracts. Inferences drawn from matches and the temporal proximity
46
of contributions and contracts would be used to develop targets for further investigation.
This initial investigative step would be fruitful only if the identity of recipients of public
contracts is public and if political and charitable contributions are transparent—at least to
the extent of revealing the actual identity of contributors. Transparency requirements
should not be limited only to campaign funds, but should also include other types of
funds closely identified with public officials and party leaders.
Once such targets are developed, the same kind of success in developing
informants, obtaining testimony, and electronic surveillance results would be necessary
as in other examples of corruption.
3. “If you give me ten thousand Euros, the contract is
yours”
What distinguishes this scenario from the other bribery hypotheticals is the
directness of the path from the briber to the bribe recipient.
When bribes benefit public officials directly, they open a new avenue for
investigation. The starting point is to compare the public salaries and other disclosed
income of the public official with the public official’s lifestyle and expenditures. A
thoroughly corrupt public official will spend more money or have more money in the
bank than he or she acknowledges receiving from legitimate sources. When such a gap
exists, that public official becomes an obvious target for further investigation employing
the same methods of informant recruitment and electronic surveillance as in the other
examples. For this strategy to work, however, Kosovar law must require financial
reporting by public officials, including the identification of major assets, including bank
accounts, and the disclosure of any sources of income other than government salaries.115
4. Blocking the hospital
A government official does not want a new hospital built in Kosovo in a specific
region because he is a partner in a private firm working to develop luxury offices and
condominiums in the exact location of the planned hospital. The hospital will service
thousands of needy Kosovars since the healthcare system in Kosovo is lacking funds,
energy and resources. The government official steers public contracts to the developer of
the hospital to cancel the plans by creating the excuse that the hospital is infeasible in this
particular area, leaving the space free to the official and his development group to build
upon. No alternate space is found for the hospital and, as a result, thousands of Kosovars
will suffer and will not be provided adequate care in this region.
In order to crack this case, the focus should be on the victim—the hospital.
Officials and employees who favored construction of the hospital have an incentive to
report the corruption that thwarted their plans, and whether they will do so depends upon
the overall climate for victim reporting. Assuming they are willing to complain of
115
Law No. 2004/34, Article 37.1.
47
suspected corruption, they still may not know much about what happened. The public
official, the contractor and top officials of the hospital hardly have an incentive to tell
how they have thwarted the plans of the hospital’s professional staff. But the hospital
staff may know a substantial amount about construction plans and plans for the
alternative development of its chosen site. This information could be essential in helping
the investigators figure out whom to target in recruiting informants, and what to look for
in financial investigations and eavesdropping.
C. Building Political Will
An important priority in combating corruption is the creation of political will
through public outrage directed at corrupt officials. Public outrage is necessary to disrupt
the political complacency that may develop from a public perception that corruption is
rampant and relatively benign.
1. Pick the right targets
One way to cultivate public outrage is to find a relationship whereby a corrupt
official is either directly or incidentally involved in a serious criminal enterprise via his or
her public office. For example, a public official may be taking bribes from a criminal
involved in human trafficking or the drug trade in exchange for a service that is used by
the criminal to further the illegal activity. It is important that the criminal be involved in
some sort of repulsive criminal activity, such as human trafficking or murder, in order to
elicit a strong public reaction. If some connection could be drawn between the corruption
and criminal activities that directly affect Kosovars, the public reaction would be even
stronger.
Once the public is made aware that corruption can lead to the commission of such
serious crimes, then there will be stronger public support for the kind of anti-corruption
measures that are necessary. The public will demand increased resources and
aggressiveness from the prosecutors in the field of public corruption. As a result, many
corrupt officials will reform themselves in order to avoid the scrutiny of the newly
reinvigorated prosecutors and investigations. Those officials who do not reform
themselves will find continuing their operations more difficult and, hopefully, many will
find themselves as the subjects of indictments and convictions.
As § IV.C. argues, some forms of corruption are more damaging than others. To
Kosovar society, no single practice of corruption may be more crippling to the economy
than the practice of government officials doling out government contracts based on
kickbacks rather than fair and objective processes. This practice is widespread and
pervasive among government officials and businessmen. Those guilty of this type of
corruption often may be indiscreet as they have little fear of legal remedies being brought
against them.
As Kosovo’s public grows cynical, investigating and prosecuting at least one
high-level offender in both the public (government official) and private (businessman)
domain becomes an immediate objective. Gathering evidence for an investigation could
48
take many forms. Completed audit reports, which indicate misappropriation of assets at
various levels of many of the ministries, are an excellent indicator showing investigators
where to dig deeper.
An investigator’s first steps in collecting evidence should be developing
informants, and perhaps even cooperating witnesses in the ministries they wish to
investigate. Assuming investigators have sufficient resources and authority, the next step
is acquiring evidence through electronic surveillance. After enough incriminating
evidence is collected by these means, charges should be brought, and the matter sent to
the courts.
Going after a high-level official and businessman is a priority for two main
reasons: (1) it will discourage corrupt behavior at the higher levels of government, where
it does the most damage and; (2) it keeps the public eye focused on corruption and its ill
effects on society, helping fuel an anti-corruption culture amongst Kosovars.
2. Empower the right anti-corruption champion
Political will to investigate and prosecute public corruption begins with
individuals in positions of influence in the political system. They may be party leaders,
public office holders, candidates for public office, public prosecutors, or journalists.
The central question for Kosovo is: who can advance his or her political goals by
getting serious about corruption, being committed to expose it, and insisting on its
prosecution? Various goals may be operative in this context: obtaining enhanced power
and status; obtaining control of public funds to reward supporters or for personal gain;
implementation of a policy-oriented program.
Most present political elites in Kosovo benefit from the status quo, and have
shown no inclination to expose public corruption (Thaçi and the PDK may be an
exception, although it is not clear how serious the PDK “dossier” on governmental
corruption is; it may be an overly general claim that PDK opponents should be turned out
of office.)
Accordingly, it is likely that some new face is needed to raise visibility of the
issue, to demonstrate a commitment to take effective action, and along with it, to advance
the actor’s career. An Elliott Spitzer, Patrick Fitzgerald, Bob Woodward or—two
generations earlier—Drew Pearson, or a legally trained Albin Kurti—is urgently needed.
The conditions must be such that an ambitious, courageous, effective person sees
successful prosecution of corruption as a way of rising from obscurity to fame.
3. Give full legal authority to a special prosecutor
The Watergate case shows the need for a special prosecutor beyond the usual
control of a department or Ministry of Justice. All of the U.S. case studies show the need
for a prosecutor of public corruption who is beyond the control of the public officials
49
targeted in the investigation. The U.S. statutory framework for a special prosecutor—
renamed “independent counsel”—is worthy of consideration for Kosovo.
The statutory authorization for the predecessor office to the independent counsel
was created in response to the Watergate scandal in 1978116 and consequently expired in
1999.117 The statute authorized the Attorney General (AG) to conduct preliminary
investigations of numerous high level officials in the Executive Branch including the
President and Vice President, provided the AG had sufficient information to constitute
grounds for investigation.118 If, after the initial investigation, the AG decides that there
are no grounds for further investigation, then the investigation ends and there can be no
appointment of an independent counsel.119 If the AG determines that further investigation
is warranted, then the AG applies to the division of the court for an independent
counsel.120 A request for an investigation can also come from the Committee on the
Judiciary of either house of Congress, and in these situations the AG must report to the
committee on the status of the preliminary investigation as well as the necessity of an
investigation by an independent counsel.121 A panel of three judges designated by the
Chief Justice of the United States122 then appoints an independent counsel and defines the
counsel’s prosecutorial jurisdiction.123 The judicial panel can also expand the jurisdiction
at the request of the AG.124 If, upon recommendation by the independent counsel, the AG
determines that there are no reasonable grounds for further investigation, then the AG
shall inform the division of the court and terminate the investigation.125
The independent counsel has full power and independent authority to exercise all
investigative and prosecutorial functions and powers of the Department of Justice.126 The
independent counsel must provide the judicial panel with a report every six months which
identifies and explains all expenses. Prior to the termination of the investigation he must
provide a report fully describing the independent counsel’s work.127 Congress has
oversight jurisdiction with respect to the official conduct of the independent counsel and
the independent counsel must provide an annual report to Congress describing the
progress of any investigations or prosecutions.128 Both the independent counsel and the
judicial panel have the authority to terminate the investigation when either body
determines that the investigation has been completed.129 The independent counsel may be
116
David J. Gottlieb, A Brief History of the Independent Counsel Law, 47 U. Kan. L. Rev. 563,
568 (1999).
117
28 U.S.C. § 599 (2000).
28 U.S.C. §§ 591(a),(b) (2000).
119
28 U.S.C. § 592(b)(1) (2000).
120
28 U.S.C. § 592(c)(1) (2000).
121
28 U.S.C. § 592(g) (2000).
122
28 U.S.C. §§ 49(a),(d) (2000).
123
28 U.S.C. § 593(b)(1) (2000).
124
28 U.S.C. § 593(c)(1) (2000).
125
28 U.S.C. § 593(c)(2)(B) (2000).
126
28 U.S.C. § 594(a) (2000).
127
28 U.S.C. § 594(h)(1) (2000).
128
28 U.S.C. § 595(a) (2000).
129
28 U.S.C. § 596(b) (2000).
118
50
removed from office only by the AG, and only as a result of some condition that
substantially impairs the independent counsel’s ability to carry out his or her duties.130
The independent counsel may obtain judicial review of any such removal.131
Prior to the adoption of the independent counsel legislation by Congress, there
had been three instances in American history where special prosecutors had been
utilized:132 the Watergate scandal, the Tea Pot Dome scandal, and the tax scandal of the
1950s.133 The problem with the earlier arrangement that motivated Congress to develop a
statutory solution was the President’s power to fire the special prosecutor.134 This result
occurred in both the Watergate scandal and the tax scandal of the 1950s.135
Over the course of the independent counsel’s statutory life there were three reauthorizations that tinkered with the role of the AG in the process, but the overriding
focus on an independent body to investigate executive misdeeds remained.136 In that time
there were twenty-one independent counsel investigations for which the costs exceeded
$166 million.137 Fewer than half of the investigations led to convictions,138 and those that
did were criticized for being too expensive and time-consuming.139 Other critics of the
statute contended that it was unconstitutional, saying that it deprives the President of a
purely executive activity.140 Eventually both parties became disillusioned with the statute,
and they let it expire in 1999.141
Creating a similar office of independent counsel or special prosecutor in Kosovo
would be difficult under the current political arrangement. The driving force behind the
adoption of the independent counsel statute was a public mistrust in the executive to
police itself effectively and honestly.142 There is ample justification for such mistrust in
Kosovo. The current Prime Minister Agim Ceku came to office promising to clean house
amid accusations that several ministers of the government were corrupt. After the leader
of the political party sponsoring him declared that all ministers should retain their posts,
however, he backed away from his promise to clean house and had made no changes in
ministerial personnel even after the 100 days he had promised himself to decide what
ministers should remain and what ministers should go. Organizing a special prosecutor or
an independent counsel in Kosovo is more difficult than in the United States because of
130
28 U.S.C. § 596(a)(1) (2000).
28 U.S.C. § 596(a)(3) (2000).
132
Katy J. Harriger, The History of the Independent Counsel Provisions: How the Past Informs the
Current Debate, 49 Mercer L. Rev. 489, 490 (1998).
133
Id. at 497.
134
Id.
135
Id.
136
Id. at 498.
137
From Watergate to Whitewater: History of the independent counsel, CNN, June 30, 1999,
http://www.cnn.com/ALLPOLITICS/stories/1999/06/30/ic.history/
138
Id.
139
Harriger at 513.
140
Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J., dissenting).
141
From Watergate to Whitewater: History of the independent counsel, CNN, June 30, 1999,
http://www.cnn.com/ALLPOLITICS/stories/1999/06/30/ic.history/
142
Harriger at 504.
131
51
the inherent differences between a presidential system of government as in the United
States, compared with a parliamentary system, as in Kosovo. In the United States, the
independent Congress and judiciary can, given sufficient determination to do so,
investigate the executive. In Kosovo the executive and the legislative majority are
indistinguishable; the government gets selected because a legislative majority sponsors
it.143 Moreover, the judiciary in Kosovo is not as independent of the legislative and
executive branches as it is in the United States. Much of the independence of the U.S.
judicial is the product of political culture, and longstanding high status for federal judges,
rather than a product of formal laws. The judiciary is not formally independent under the
existing constitutional framework in Kosovo. Judges are appointed and dismissed by the
SRSG, who also exercises ultimate executive and legislative authority. Guaranteeing
judicial independence is an important priority for drafters of a new Kosovo constitution
and for designers of any international role in governing an independent Kosovo.
Many plausible constitutional structures could allow for an independent
prosecutor. The parliamentary majority conceivably could insist upon the appointment of
an independent prosecutor as the price for not adopting a vote of no confidence against
the government. Or the parliamentary opposition could create so much public pressure
against the government that the government is forced defensively to create an
independent prosecutor, just as President Nixon was forced to create the special
prosecutor office by pressure from a Congress controlled by the opposition party and
from the public.
Appendix II provides a draft job description for a Kosovo special prosecutor.
4. Organize undercover investigations and recruit
cooperating witnesses
All of the case studies show that informants, cooperating witnesses, and
undercover agents are necessary in a successful investigation of public corruption. The
axioms postulate such necessity explicitly. This section considers whether the legal
framework in Kosovo is adequate, in comparison to the legal framework in the United
States for such investigative resources to be recruited and deployed.
a) Authorize undercover investigations
In Kosovo, a simulated purchase of an item or a simulation of a corruption
offense for the purpose of collecting evidence for a criminal investigation can be
performed or directed by a duly authorized judicial police officer if two preconditions
have been met.144 First, there must be a grounded suspicion that the person has
committed, or attempted to commit, a criminal offense punishable by at least four years
in prison, or one or more of a list of seventeen crimes including forgery of documents and
money, unjustified acceptance of gifts, unjustified giving of gifts, trading in influence,
143
144
UNMIK/REG/2001/9, §§ 9.3.8, 9.3.9, 9.3.10.
UNMIK/REG/2003/26, Article 257, paragraph 3; Article 260, paragraph 7.
52
criminal association, accepting bribes, and giving bribes.145 Second, “the information that
could be obtained by the measure…would be likely to assist in the investigation of the
criminal offense and would be unlikely to be obtained by any other investigative action
without unreasonable difficulty or potential danger to others.”146A roadblock to utilizing
these investigative measures is the requirement of a judicial order.147 The order is issued
by a pre-trial judge upon the basis of an application by a public prosecutor.148 A public
prosecutor can issue a provisional order in emergency cases when the delay resulting
from an issuance by a pre-trial judge would jeopardize the security of the investigation or
the life and safety of a party connected to the investigation.149 Such a provisional order
has effect for only twenty-four hours without the confirmation of a pre-trial judge.150
The order shall only authorize a single simulated purchase or corruption
offense.151 A further order may be issued if the preconditions necessary to issue an order
still exist, and “there is a reasonable explanation of the failure to obtain some or all of the
information sought under the earlier order.”152 When implementing this order the
informant cannot commit a criminal offense or incite another person to commit a criminal
offense that he or she would not have committed.153 If at any point the preconditions for
issuing an order cease to apply, an authorized judicial officer may terminate the order.154
If a person believes that he or she has been the subject of an unlawful measure, that
person can submit a complaint through the Head of the competent public entity to the
Surveillance and Investigation Review Panel.155 The Review Panel adjudicates the
complaint and decides on compensation where appropriate.156
In exceptional circumstances a pre-trial judge may, upon application of the public
prosecutor, order that any information or data in the collected materials that could be
used to identify the informant be expunged or omitted, or that records in the materials not
be disclosed.157 The exceptional circumstances exist when the evidence is not deemed
exculpatory and revealing those items would jeopardize the investigation or the life and
safety of the informant or the informant’s family.158
The rules governing the use of undercover investigative procedures other than a
simulated purchase of an item or a simulation of a corruption offense are less stringent
because an order for an undercover investigation is issued by a public prosecutor instead
145
Id. at Article 257, paragraph 3, sub-paragraph 1.
Id. at Article 257, paragraph 3, sub-paragraph 2.
147
Id. at Article 258, paragraph 2, sub-paragraph 8,9.
148
Id.
149
Id. at Article 258, paragraph 4.
150
Id.
151
Id. at Article 261. paragraph 4.
152
Id. at Article 261, paragraph 4.
153
Id. at Article 260, paragraph 8.
154
Id. at Article 261, paragraph 6.
155
Id. at Article 265, paragraph 5.
156
Id. at Article 265, paragraph 1.
157
Id. at Article 263, paragraph 3.
158
Id.
146
53
of a pre-trial judge.159 One of the significant differences between this and the U.S. system
is that approval power in the U.S. is divided between the FBI Special Agent in Charge
and FBI headquarters depending on the circumstances.160 Authorization from
headquarters is necessary when the operation will incur substantial financial costs or
involve sensitive circumstances including the investigation of public officials.161 Again,
undercover investigations in the U.S. can include engaging in otherwise unlawful activity
with proper authorization,162 while an undercover Kosovar cannot.163
The Criminal Procedure Code of Kosovo does not address confidential
informants. In the U.S., the Attorney General has created guidelines that provide
procedure for the use of confidential informants.164 A law enforcement agency in the U.S.
must submit an Initial Suitability Report prior to utilizing a person as a confidential
informant.165 This report must address a number of factors including the informant’s age,
motivation, reliability, and history of substance abuse.166 The law enforcement agency
must take the utmost care not to disclose information about the investigation to the
informant.167 At the same time, the informant’s identity is to be protected along with the
information provided by the informant.168
Members of the Kosovar-Albanian diaspora may be good possibilities for
recruitment as undercover agents or informants because they face less physical risk; they
are already “relocated.” Obviously they would not be effective if they were to operate
outside Kosovo, but their ties to Kosovo and their shared culture could make them
effective if they stay in Kosovo for the duration of an investigation and then return to
another country after the investigation is complete. While the Albanian diaspora certainly
should be considered as a pool for possible recruitment of informants or undercover
agents, certain realities may limit its potential. Members of the diaspora already involved
in business or political activities in Kosovo, and therefore likely to be already trusted and
knowledgeable about corruption, have no more incentive to betray their associates than
do similarly situated people inside Kosovo. Of course, just as people fall out with their
associates or are disappointed about lost business opportunities inside Kosovo, the same
thing may happen to a member of the diaspora. A member of the diaspora in such
circumstances is a better target to become an informant or undercover operative because
the diaspora member does not have to stay in Kosovo and bear the consequences of his
cooperation.
159
UNMIK/REG/2003/26, at Article 258, paragraph 1, sub-paragraph 3.
The Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations,
§§ IV.B., IV.C., (May 30, 2002).
161
Id. at IV.C.
162
Id. at IV.H.5.
163
UNMIK/REG/2003/26, Article 260, paragraph 8, sub-paragraph 2.
164
The Attorney General’s Guidelines Regarding the Use of Confidential Informants (May 30,
2002).
165
The Attorney General’s Guidelines Regarding the Use of Confidential Informants, § II.A.1,
(May 30, 2002).
166
Id.
167
Id. at § I.F.1.
168
Id. at § I.F.2.
160
54
Members of the diaspora who are not presently involved in business or political
activities in Kosovo offer only a marginal advantage over any other outsider. Were they
suddenly to show up and try to get close to a political or business figure inside Kosovo,
they likely would come under immediate suspicion. On the other hand, the energetic
effort by Kosovars to attract foreign investment, and the modest success of this effort so
far, will create the conditions for several years in which a member of the diaspora could
show up under cover of having been recently persuaded to invest in Kosovo.
b) Allow cooperating witnesses
The Provisional Criminal Procedure Code of Kosovo defines a cooperating
witness as a suspect or defendant who is expected to voluntarily testify truthfully in court,
and whose testimony is “likely to prevent further criminal offenses by another person and
likely to lead to the findings of truth in criminal proceedings, such that it might lead to a
successful prosecution of other perpetrators of a criminal offense.”169 Upon a written
application by the public prosecutor,170 the pre-trial or presiding judge may convene a
closed hearing to decide whether to issue an order declaring the person to be a
cooperating witness.171 The judge’s order must specify the criminal offenses, from which
the witness is immunized, the punishment the witness will receive for the remaining
offenses, the nature and substance of cooperation given by the witness, and the conditions
for revocation of the order.172 If the witness gives false testimony, the order may be
revoked by a three-judge panel.173 A cooperating witness could also be utilized as an
informant so long as the witness is operating under the supervision of a duly authorized
judicial police officer.174
5. Permit electronic eavesdropping under appropriate
conditions
All of the case studies show the essentiality of electronic surveillance, and one of
the axioms asserts such explicitly. The availability of electronic surveillance in Kosovo,
accordingly, is an essential part of any effective campaign to combat public corruption.
Its availability depends upon the legal requirements for its use, and the technical capacity
to deploy the necessary technology, assuming of course, the willingness of informants or
undercover agents to participate in wearing a wire or recording telephone conversations
when surveillance other than traditional wiretaps are contemplated.
a) Wiretapping
According to UNMIK regulations, interception of telecommunications or
communications by a computer network may be ordered against a certain individual if 1)
169
UNMIK/REG/2003/26, Article 298.
Id. at Article 299, paragraph 1.
171
Id. at Article 300.
172
Id. at Article 300, paragraph 4.
173
Id. at Article 301, paragraph 1.
174
Id. at Article 260, paragraph 7.
170
55
certain facts substantiate that the suspect has committed a criminal offense punishable by
more than four years or committed one of a list of eleven offenses; and 2) the information
that could be obtained by this measure would be likely to assist in the investigation, and
would be unlikely to be obtained by any other measure without unreasonable difficulty or
potential danger to others.175 This order must be issued by an investigating judge in
response to an application by a public prosecutor.176 This application must include a
complete statement of the facts relied upon to form the belief that the requisite crime has
been committed and that there is no other adequate way to procure the information.177 In
emergency cases, the prosecutor may issue a provisional order that will cease to have
effect if it is not confirmed by an investigative judge within three days of issuance.178 The
order must be carried out in such a way as to minimize the interception of information
that is not included in the order.179 Also, once the conditions for the issuing of the order
cease to apply, then implementation of the order must be suspended.180 The order may be
issued against anyone suspected of communicating with the suspect, or anyone who
possesses a telephone or computer that the suspect is thought to have used.181
The main difference between the wiretapping laws in Kosovo and the U.S. is that
the pool of possible subjects of wiretapping is greater in the U.S. Wiretapping can be
authorized in Kosovo only against people who are suspected of having already committed
a crime.182 In the U.S., it is enough if a judge determines that there is probable cause to
believe that the suspect has or will commit a crime.183
b) “Wires”
Orders for body wires and telephone conversations do not require judicial
approval in Kosovo where one of the parties has consented to the surveillance.184 The
general rule is that in order to engage in forms of electronic surveillance where none of
the parties consent, the order must be issued by a pre-trial judge.185 An exception is made
for covert monitoring of conversations in public places, where authorization can come
from a public prosecutor.186 Another exception is made in emergency cases where the
delay that would result from a pre-trial judge issuing an order would threaten the
investigation or a party involved in the investigation.187 In these circumstances, a public
175
UNMIK/REG/2002/6 § 2.3.
Id. at § 3.2.
177
Id. at § 3.3.
178
Id. at § 3.4.
179
Id. at § 5.2.
180
Id. at § 5.3.
181
Id. at § 2.4.
182
Id. at § 2.3(a).
183
18 U.S.C. § 2518(3)(a) (2000).
184
UNMIK/REG/2003/26, Article 258, paragraph 1, sub-paragraph 3.
185
UNMIK/REG/2003/26, Article 258, paragraph 2, sub-paragraphs 1,4,5.
186
UNMIK/REG/2003/26, Article 258, paragraph 1, sub-paragraph 2.
187
UNMIK/REG/2003/26, Article 258, paragraph 4.
176
56
prosecutor may issue a provisional order that will cease to have effect if it is not
confirmed by a pre-trial judge within twenty-four hours.188
In the U.S., judicial approval is not necessary in order to intercept wire, oral, or
electronic communications when one of the parties has either consented to the
interception or is a law enforcement officer.189 If none of the parties has consented to the
interception, then judicial authorization is necessary.190 An interception with none of the
parties consenting can be authorized by a law enforcement officer without judicial
approval in emergency situations.191 The emergency situation exists when there is an
immediate danger of death or physical injury to any person, conspiratorial activities
threatening national security, or conspiratorial activities characteristic of organized
crime.192 The law enforcement officer must then apply for judicial authorization within
forty-eight hours of the interception.193 The U.S. and Kosovo procedures seem to be
largely identical.
6. Institutionalize governmental monitoring
In the United States, the Government Accountability Office provides resources to
members of Congress to investigate performance of public duties by agencies and agency
officials. Its authority and activities extend beyond public corruption to the effectiveness
of governmental activities. The Office of Inspector General within most governmental
agencies performs a similar function, also not limited to allegations of corruption. Similar
authorities in Kosovo can be a useful part of the overall anti-corruption effort, but they
are insufficient in the absence of the other preconditions for success. Moreover, they are
entirely useless unless they have the authority and do in fact report their conclusions
directly to the public without the possibility of their being censored or entirely suppressed
by the government.
a) Model the Kosovo Auditor-General on the U.S.
GAO
The Kosovo Auditor-General’s (AG) primary responsibility is to perform annual
regulatory audits of numerous publicly-funded institutions.194 The AG may also perform
regulatory and performance audits at the behest of the Assembly.195 A regulatory audit is
primarily concerned with identifying potential wrongdoing, while a performance audit is
an audit of the efficiency and effectiveness with which the institution manages its
resources in carrying out its responsibilities.196 While the current AG is appointed by the
188
Id.
18 U.S.C. § 2511(2)(c) (2000).
190
18 U.S.C. § 2516(1) (2000).
191
18 U.S.C. § 2518(7) (2000).
192
18 U.S.C. § 2518(7)(a) (2000).
193
18 U.S.C. § 2518(7) (2000).
194
UNMIK/REG/2002/18 § 3.2.
195
Id. at § 3.8.
196
Id. at § 1.
189
57
SRSG,197 the AG will become a fully localized institution based upon a plan created by
the AG and approved by the SRSG to finalize appointment procedures.198 The AG has
the power to compel production of all information and documents it desires.199 The AG is
also free to create its own standards and procedures, so long as they comply with the
International Standards of Auditing.200
The only two significant differences between the U.S. Government Accountability
Office and the Audit Office of Kosovo are the authority to initiate an audit and the
breadth of subjects covered in a report. The Auditor-General can only initiate an audit if
it is one of the annual audits required by the statute, or if it is requested by the
Assembly.201
The Comptroller General (who heads the GAO), on the other hand, can perform an
investigation into the use of public money on his/her own initiative.202 Also, the AG’s
annual reports are regulatory audits,203 and these audits do not address the efficiency and
effectiveness with which the audited institution uses and manages its resources.204 A
performance audit that focuses upon those neglected issues can be requested by the
Assembly,205 but cannot be performed without a request.206 The Comptroller General, on
the other hand, is required to comment on the efficiency of the institution as part of the
annual report.207
b) Model the Kosovo Anti-Corruption Agency on U.S.
Inspectors General
The Kosovo Anti-Corruption Agency’s (Agency) primary responsibilities are to
conduct administrative investigations into corruption,208 forward criminal cases of
corruption to the prosecutor,209 and participate in the process of designing legislation and
policy to combat corruption.210 All public bodies, local authorities, and official persons
are required to provide the Agency with all the information and documents that are
requested of them.211 The director of the Agency is selected by the Assembly from two
candidates recommended by an Agency Council.212 The Agency Council is primarily
197
Id. at § 2.4.
Id. at § 8.2.
199
Id. at § 4.1.
200
Id. at § 3.14.
201
Id. at § 3.9.
202
31 U.S.C. § 717(b)(1) (2000).
203
UNMIK/REG/2002/18 § 3.2.
204
Id. at § 1.
205
Id. at § 3.8.
206
Id. at § 3.9.
207
31 U.S.C. § 719(b)(1)(A) (2000).
208
Law No. 2004/34 Art. 14, 23(a).
209
Id. at Art. 16.1.
210
Id. at Art. 23(c) – 23(m).
211
Id. at Art. 15.
212
Id. at Art. 10.3.
198
58
comprised of representatives from various government organizations.213 The Agency
does not interact much with prosecutors, except to forward cases involving criminal
corruption to them.214
One difference between the Agency and the Inspector General (IG) is that the Agency
focuses on legislation that directly addresses corruption,215 while the IG reviews all
legislation with a focus on how it will affect corruption.216 This distinction exists on a
more general level as well. The focus on corruption is an outgrowth of the IG’s
responsibilities in regard to the effective and efficient administration of the laws, rather
than its main objective.217 The Agency, on the other hand, has anti-corruption as its main
objective.218 Another distinction is that the appointment of the director is directly
influenced by a larger pool of people. The Assembly chooses from two candidates that
were selected by the Agency Council.219 The Senate, on the other hand, addresses one
candidate who was selected by the President.220
7. Establish more “hotlines”
“Hotlines” are special telephone numbers that persons can call, or e-mail
addresses to which they can send e-mails, to report misconduct, including corruption.
Such hotlines are believed to encourage reports from victims and others fearing
retribution because they can do so anonymously. Hotlines generate a large amount of
extraneous information and are useful only if the resources exist for careful screening of
accusations delivered via hotline. Moreover, citizens with information about corrupt
activities to report may be reluctant to use the hotlines if they believe that the agency
sponsoring them has itself been corrupted. Whether or not it is so, most people believe
that even anonymous calls and emails can be traced to them.
Around the world many other anti-corruption hotlines exist and function to aid
organizations and governments. The federal government of Nigeria in its Ministry of
Finance is an example of a functioning hotline. Citizens in businesses are asked to use
the telephone hotline or the free and anonymous email service to report evidence of
corruption in their respective industries.221
The United States has many corruption hotline services in most branches of the
federal government. The hotline of the Immigrations and Customs Enforcement Bureau
(ICE) plays an important role in combating human trafficking. The ICE has set up a
213
Id. at Art. 19.2.
Id. at Art. 16.1.
215
Id. at Art. 23(c) – 23(m).
216
5 U.S.C. App. 3 § 4(a) (2000).
217
5 U.S.C. App. 3 § 2 (2000).
218
Law No. 2004/34 Art. 1
219
Id. at Art. 10.3
220
5 U.S.C. App. 3 § 3(a) (2000).
221
See “Implementation of Anti-Corruption Plans in South-Eastern Europe (PACO Impact).”
PACO Impact. 15 Dec 2005; Federal Government of Nigeria – ministry of finance
http://www.fmf.gov.ng/news.php?id=74.
214
59
hotline for victims of trafficking to report their incidents. Through this hotline, NGOs are
able to communicate with the ICE victim witness program in order to provide funding to
the witnesses. No information was given regarding the efficiency of the hotline.222
UNMIK has created an anti-corruption hotline program to help promote its anticorruption campaign in Kosovo. The hotline is used to measure the number of reported
cases, and then to evaluate the types of corruption reported, defining what corruption is
most prevalent in Kosovo. Any citizen of Kosovo, or member of the world, can dial this
number or send an email from the UNMIK website under the heading “corruption
hotline.” Currently, UNMIK operates a customs hotline to report smuggling or
corruption. The hotline can be reached at the number +381/038/540 350. A person can
also report corruption at the website www.unmikcustom.org.223
8. Improve witness protection
Witness protection determinations in Kosovo are made by the court upon a
written petition filed by the witness’ counsel.224 An order for a protective measure or
anonymity is proper when the court determines that a serious risk to the witness or the
witness’ family member exists, and the protective measure is necessary to prevent that
risk.225 The protective measure to be employed is left to the court’s discretion, but the
regulation does list a number of protective measures.226 If ordinary protective measures
prove to be insufficient to guarantee protection, the court can, in these exceptional
circumstances, order that the witness remain anonymous to the public.227 In these cases,
the court holds a hearing in a closed session where it assesses the risk, the interests of the
public and other parties, the importance of the testimony, and the credibility of the
witness before making a decision.228 If the court issues such an order, that witness will
remain anonymous to the public and to the opposing parties and counsel.229
The witness protection program in Kosovo differs from that in the U.S. in three
major respects. First, the determination regarding witness protection is made by a Kosovo
court,230 while it is made by the Attorney General in the U.S.231 Second, witness
222
See U.S. Department of State Trafficking in persons report June 14, 2004
www.state.gov/g/tip/rls/tiprpt/2004/33202.htm.
223
UNMIK Customs www.unmikcustoms.org
224
UNMIK/REG/2001/20 § 2.1.
Id. at § 2.3.
226
Id. at § 3.1.
227
Id. at §§ 4.1, 4.2.
228
Id.
229
Id.
230
Id. at § 2.1.
231
18 U.S.C. § 3521(a)(1) (2000).
225
60
protection is available to all witnesses in Kosovo,232 while it is available only to
witnesses for the government in cases of organized crime or other serious offenses in the
U.S.233 Third, despite a broad mandate for Kosovar judges to take whatever steps
necessary to protect the witness and his/her family, the measures contemplated by the
statute do not address any form of witness relocation,234 while the U.S. statute identifies
relocation as the primary form of witness protection.235
Statutory authority is hardly the most important aspect of an effective witness
protection program, as earlier parts of this report have explained. A large working part of
any witness protection program is witness relocation. In the United States, witnesses that
partake of this service are often reluctant to relocate to another state or city and often stay
in their targeted danger zone. In Kosovo the same reluctance to relocate exists and is
more complicated because of ethnic, cultural, and language issues.
Family is the most prominent factor that makes relocation of witnesses difficult.
In the US and in Kosovo witnesses are often unwilling to give up all contact with their
families and create a new life under a new identity and family name. If they choose to
relocate, witnesses must cut off all ties with family members other than those they are
living with and must not return to their old homes or targeted areas. The only people who
do not have as much difficulty with breaking all familial ties are those who were
estranged or isolated from family and friends before the incidence of relocation.
In Kosovo ethnic and cultural ties play a more prominent role in the reluctance to
relocate. Kosovars would not be able to relocate to areas within the similar cultural
region, leaving them isolated from old customs and traditions. Also, Kosovars cannot
relocate to a place that is heavily populated by their same ethnicity because of anonymity
reasons and ties to their homeland. Thus, the ideal place for a Kosovar witness to relocate
to would be one of completely different, cultural, ethnic, and racial background, for
example Japan would be perfect.
This relocation to a completely new area raises language issues. Kosovars would
have to learn a completely new language. Many of them are uneducated in the first place,
and the burden of adapting to new surroundings would only be heavier with the addition
of learning a new language.
Another factor that is unique to the Kosovo situation is the strong determination
to remain home. If Kosovars had wanted to escape or relocate, they would have done so
during the war when they were being forced out of Kosovo. Additionally, fear of the
unusual or new surroundings tends to overwhelm Kosovars more so than their fear of
their perpetrators. Thus, the witness relocation program must take these factors into
consideration before creating a comprehensive and workable program.
232
UNMIK/REG/2001/20 § 1(b).
18 U.S.C. § 3521(a)(1) (2000).
234
UNMIK/REG/2001/20 § 3.1.
235
18 U.S.C. § 3521(b)(1) (2000).
233
61
Earlier parts of this report also have made the point that witness relocation
programs, like witness protection programs of any form, are extremely expensive. To
derive an estimate for the cost of a U.S.-style witness protection program in Kosovo, one
can take the 1997 U.S. Budget for witness protection of some $61.8 million, and ratio it
by a fraction comprising the population of Kosovo (2 million) with the U.S. population (3
million), which results in a Kosovo witness protection budget in excess $400,000.236
9. Support investigative journalism
Large scale corruption often is exposed first, not by government officials, but by
journalists—sometimes acting on tips from lower level prosecutorial or law enforcement
personnel who are frustrated because higher-level officials lack the political will to
investigate and prosecute public corruption vigorously.
Prosecutors report to some branch of government; they depend on the government
to pay their salaries and provide them with resources. Journalists do not; as a
consequence, journalists are harder to intimidate economically and harder to starve into
submission by denying them resources. Kosovo also has an abundance of journalists,
serving nine major newspapers, three national television outlets, four major radio stations
and Internet sites too numerous to count.
Nurturing investigative journalists in Kosovo is an important part of any effective
anti-corruption initiative. They need moral support from their organizations, willingness
by their editors to put their stories in the paper or on the air, and training about the
investigative techniques most likely to unearth evidence of corruption.
10.
Reinforce anti-corruption norms
As § III. B. explained, social norms are as important as law in determining
whether corruption is tolerated or can be successfully prosecuted and reduced. That
section also explained that norms favorable to corruption are difficult to change. Kosovo
should intensify efforts to build the appropriate norms. This should focus particularly on
young people and on the business community. It can be understood especially when it
focuses on young people, as a component of a larger effort at “civic education.”
Before the 1999 conflict, civic education had but one objective: love your country
and be prepared to take arms in its defense. Much has changed after the conflict,
however, and the focus of civic education is no exception. With the help of the new
political landscape and the international community, the content of civic education has
morphed into healthy debate and understanding about democratic processes and human
236
www.cia.gov/cia/publications/factbook/rankorder/2119rank.html; www.sokKosovo.org/publications_population.htm; Risdon N. Slate, “The Federal Witness Protection Program: Its
evolution and continuing growing pains”, www.questia.com/pm.qst?a=o&d=5000590742.
62
rights.237 Although still in its infancy, civic education in Kosovo has made impressive
strides by changing the nature of the subject matter taught.
Current small scale initiatives within Kosovo are planting the seeds for more
widespread efforts at civic education in the future. Successes have occurred as early as at
the preschool level in new civic activities, such as having preschoolers meet policemen
and learning law enforcement’s responsibilities in their community. These types of
initiatives are not altogether isolated and are excellent examples of how civic education’s
role should function at the academic level. These programs and new ones similar to them
should be encouraged and expanded upon.
Adolescents and young adults equipped with a very basic foundation in civic
education are intellectually capable of debating more complex, public issues. Once given
a platform to learn, these youth are able to grasp the ideal relationship between a
government and its populace: the government’s role is to represent the best interests of
the populace, and it is the populace’s responsibility to hold the government accountable.
An integral part of this education should include information about the direct, negative
effects commonplace corruption has on their everyday lives. For instance, young adults
should be challenged to make the connection between the Minister of Transportation’s
embezzling and accepting of kickbacks and the 400 euro bill their father received from
the auto mechanic after running into a pothole on the highway.
Kosovo’s youth are not the only hopeful examples of a more mature civil ethic
among Kosovar society. Within the business community, Kosovo’s Chamber of
Commerce has been instrumental in providing peer support to companies who are having
trouble with the Kosovar regulatory system. The Chamber of Commerce, under new
leadership headed by widely respected businessman and public servant Besim Beqaj,
plays its role in educating companies about their rights under the relatively new Kosovar
system. When irregularities occur, the Chamber of Commerce has become a conduit
through which companies can voice their concerns and, when necessary, band together to
lobby against such irregularities. The Chamber of Commerce should be allowed to
continue to flourish, and other organizations that serve the same end for various other
interest groups should be encouraged as well.
The most developed mechanism for civic education in Kosovo is Kosovo’s free
press. Taking into account that the many of Kosovo’s inhabitants are unemployed,
various daily newspapers are very widely read. Although in some respects flawed, the
press has done an excellent job at uncovering inequities and giving the public a sense of
what is and is not acceptable in terms of corrupt behavior. If political will could be more
firmly established, the press would make an excellent delivery mechanism to a
government sponsored civic education advertising program aimed at the general
populous.
“Human Rights Towards a New Civic Education,” Taro Komatsu (UNMIK Regional
Education Officer) http://www.unmikonline.org/pub/focuskos/dec01/focuskmunaffair4.htm
237
63
A final caveat: private individuals and organizations alike need to be specific with
corruption allegations. Accusations based upon mere suspicion or distrust serve only to
jade an ever weary public, as they may be difficult to distinguish from more serious
accusations and rarely result in a police investigation. Specific allegations, however, with
strong evidence in their support, put pressure on politicians, police, and prosecutors to do
their job.
VI.
Prospects for success
Rooting out public corruption is difficult in any society and requires a sustained,
patient effort, even when the four preconditions identified in § IV. C. exist. Kosovo is no
exception. It is important that expectations about anti-corruption initiatives be realistic.
This section suggests what is possible in one year, three years, and ten years.
A. What’s possible in one year
The Kosovar public currently views corruption as a major reason for Kosovo’s
lack of economic progress as a nation. This contributes to a political environment that is
increasingly charged and jumpy at the mention of corruption. It would not take much for
real political will to develop in response to public perceptions. In the next year, it is
possible that a group of politicians or perhaps even an entire political party will take up
the anti-corruption cause in a serious way.
Fortunately, the laws are already in place to help support such a movement. Anticorruption legislation is similar to that of the United States. In addition, an anticorruption body has been legally formed and just awaits the political will to fill positions
in it with independent, competent Kosovars.
In one year, it is conceivable that not only will political will manifest from a
broad public concern about corruption’s negative effects on their society, but that it will
then fuel the creation of an anti-corruption body with some teeth.
Specifically, the Kosovo Anti-Corruption Agency is an institution that needs to
experience rapid growth. The first step has been completed with the drafting of the
statute, which lays the groundwork for an agency that will aggressively monitor the
activity of public officials. Simply having a competent government body, such as this
one, will provide a strong deterrent against public officials who may be contemplating
participating in some sort of corrupt behavior. The Agency needs to exercise its powers
to the fullest extent. It needs not only to fulfill its duties in monitoring public officials,
but must also formulate a long-term anti-corruption plan and advise the Assembly on the
possible corruption ramifications of legislation that is considered and passed. By
identifying possible or likely avenues of corruption early, the Agency and prosecutors
will be better equipped to impede corrupt activity.
Perhaps the most important achievement that can be made within one year is the
commencement of at least one major corruption investigation. This investigation must be
carried out by a competent prosecutor who will follow the corruption wherever it takes
64
him or her. In addition to any convictions that may result from the investigation, there
will be at least two resulting positive effects. First, the commencement of a serious
investigation into public corruption will help to restore the public’s faith that the
government is taking action to curb corruption. Without some sort of activity by the
government, the public may fall into the perception that everyone is corrupt and therefore
there is no political will to combat it. Second, some corrupt officials will essentially be
scared straight. The risk/benefit analysis that officials make prior to engaging in corrupt
or illegal activity will change. A serious investigation will increase the risk and deter
some officials from taking part.
Another result that can be easily accomplished within the next year that very well
may lead to numerous investigations is to follow up on audits that discover financial
inconsistencies. If an audit of a governmental body finds that money may not be headed
where it was supposed to, anti-corruption authorities must then step in and make the
appropriate officials account for where the funds have gone. Doing so may unearth cases
of actual corruption, and at the very least it will help to achieve a more efficient
government.
It is not, however, realistic to expect that actual convictions would result from
anti-corruption investigations within one year. Instead, the most that can be hoped for is
that a prosecution would have commenced by filing charges. It also is possible, though
not desirable from the aspect of public monitoring of the seriousness of any anticorruption campaign, that one or more serious investigations might be underway but
could not yet be made public without compromising them. Success in the first year may
have to be judged afterwards, in retrospect.
B. What’s possible in three years
If a serious anti-corruption body can be properly staffed and funded, then real
headway can be made with serious investigations into the misdeeds of the political
higher-ups. As a naturally occurring cycle, these investigations usually bring with them
added public support and political will. Within three years, it is realistic to have various
ongoing investigations and at least one high level conviction.
Within three years, it is a realistic goal to have at least one high-level, visible
conviction. By this time, there should be prosecutors that are specially trained and
focused upon conducting corruption investigations. Investigative techniques will have
become more sophisticated, and the pool of confidential informants and cooperating
witnesses will be growing quickly. The conviction(s) will continue to create public
confidence in the government’s will to combat corruption.
The overarching goal is to have an institutionalized system to fight corruption in
place within three years. This means developing the institutions that already exist to the
point that they run efficiently, and restoring public confidence in government. A
byproduct of public confidence in an honest government will be increased political
participation that leads to a more developed dialogue between voters and politicians. The
perception that corruption is a necessary and unavoidable aspect of governance should be
65
replaced with a perception amongst both the public and politicians that corruption is a
phenomenon that hurts all levels of society, and that those who participate in it are
criminals who will soon fall under the watchful eye of the authorities.
Three years is an ample period for serious anti-corruption investigations to ripen
into public prosecutions and actual convictions. If no high level convictions have
occurred within three years then the citizens of Kosovo and outsiders can be confident
that the political will to root out corruption in independent Kosovo is absent.
C. What’s possible in ten years
Although perhaps not to the extent of the world’s most developed countries, in ten
years Kosovo can realistically hope to have effective, independent anti-corruption
resources as a regular part of its political system.
Ten years from now Kosovo could have a working system whereby corruption is
reported, investigated, and prosecuted. There should be anti-corruption experts working
both as prosecutors and in the Anti-Corruption Agency. It is reasonable to expect that a
10 year period should see some convictions as extensive as those in the U.S. ABSCAM,
Silver Shovel, and Greylord investigations. Such results would create the impression that
other investigations are ongoing. Anti-corruption activities should be integrated with
those of the rest of Europe and the world. There should be less corruption to investigate
as public officials will have gotten the message that those who engage in illegal activities
will be brought before the law. While public corruption will never be entirely eradicated,
there is no reason to think that Kosovo cannot have one of the more sophisticated and
successful anti-corruption campaigns around. Once a couple of key investigations and
convictions have been made, a culture of anti-corruption will perpetuate itself. Less
corruption will lead to stronger political institutions and vice versa.
VII. Where to Begin?
Section IV.C. made the point that different types of corruption may be more or
less damaging, and that an anti-corruption initiative in Kosovo should focus on high level
bribery and embezzlement. That leaves open the question, however, of where the focus
should be in terms of various types of contexts within which corruption can occur.
Selecting targeting priorities within these contexts should depend on the degree of
suspicion that illegal conduct is occurring, the likelihood that it can be uncovered and
proven in court, and, importantly, the public opprobrium that would attach to exposure.
Any public corruption campaign should be organized in large part to increase rather than
diminish public support for reducing corruption.
Three possibilities should be considered: drug trafficking, human trafficking, and
public contracting.
66
A. Drugs
Drug trafficking is an attractive potential target because significant criminal
intelligence about drug networks and Kosovar participants in them is potentially available
from other countries’ police and intelligence services. If those services are willing to
provide some of the intelligence to a Kosovo anti-corruption initiative, that would make
the initial targeting of Kosovar participants easier. Indeed, it may be that other police and
intelligence services have been waiting for the opportunity to prosecute some Kosovar
participants.
On the other hand, if the evidence shows that Kosovars are involved in drug
trafficking that involves mostly foreign sources and destinations, the general population
may not perceive the activities of the Kosovar defendants are particularly injurious to
Kosovo and might be persuaded by the defendants and their supporters that the
prosecutions are simply vendettas against Kosovar Albanians. Moreover, drug trafficking
is sophisticated and ruthless. The risk of witness intimidation and assassinations would be
high.
B. Human Trafficking
Human trafficking shares some of the characteristics of drug trafficking but also
differs from it in important ways. The quantity and quality of criminal intelligence about
human trafficking networks is likely to be less than that related to drug trafficking
networks because human trafficking has only become a matter of large scale international
concern recently, while drug trafficking has been a concern for at least two decades.
Human trafficking might be a more attractive target for initial focus than drug trafficking
because human trafficking is more likely to be repugnant to most of the Kosovar
population. While many in Kosovo, as in the United States and elsewhere, view drug use
and distribution as a victimless crime, human trafficking manifestly is not a victimless
crime.
The best circumstance would be if the participation by Kosovars in human
trafficking results in the kidnapping of at least some Kosovar citizens, male or female, to
fulfill the sexual desires of foreigners. It is not clear as of the writing of this report
whether such Kosovar victims of human trafficking exist. If the victims are foreign men
or women brought into Kosovo or moved through Kosovo, the public outrage about the
participation of Kosovars in such trafficking would be less, and there is the risk that
targeting them for prosecution would be perceived as a vendetta against Kosovo, as with
drug trafficking, although there surely would be a higher degree of public opposition to
any Kosovar participating in human trafficking as contrasted with drug trafficking.
Targeting human trafficking, however, must not deteriorate into occasional raids
on houses of prostitution and prosecution of low-level prostitutes or pimps. To be
meaningful, targets must be those who run the network.
67
C. Government Contracting
This might seem to be the most obvious context to focus on, because it takes place
in Kosovo and all the participants are in Kosovo at least at some points in time.
Moreover, while physical threats to the safety of informants, undercover agents, and
cooperating witnesses surely exists, participants in public contract corruption are less
likely to be as depraved and ruthless as those involved in high level drug or human
trafficking.
There are some disadvantages of this focus, however. It is far more likely that the
average Kosovar would perceive certain types of corruption and public contracting as
simply a normal way of doing business. Moreover, individual businesses and the business
elite may perceive, upon reflection, that they are better off in the short run with the status
quo than with high levels of controversy about business and government linkages in
corruption. Accordingly, corruption in public contracting may be harder to investigate
successfully, and the positive increment to public support resulting from successful
prosecutions might be less than prosecuting more opprobrious forms of criminal activity.
D. Finding Potential Informants and Cooperating
Witnesses to “Jam Up”
It is commonplace for experienced public corruption investigators in the United
States to focus their efforts initially on midlevel participants in targeted activities. Once
sufficient evidence has been gathered to convict a midlevel person, that person can be
confronted with the evidence and threatened with a long jail term (“jamming up” the
target) unless that person agrees to cooperate in exposing higher level participants. That
is precisely what happened in the ABSCAM and Silver Shovel investigations, and
indeed, in aspects of Watergate. Accordingly, regardless of whether anti-corruption
investigators target drug smuggling, human trafficking, public contracting, or something
else, they must organize their efforts in terms of the ultimate goal of convicting a
ministerial level government official or a businessman rather than a lower level person
engaged in petty corruption, while also recognizing that they must begin at a level
between the two in order to work their way up the chain of command in corrupt
networks.
68
VIII. Appendices
A. Appendix I
1. Greylord Transcripts
“COOLEY: No, no, no because here's the thing, if they get [$75,000] this guy's
home free, then he's in no hurry to work out somethin'. They have to get that money. If
they don't get ... it this thing today is turned down, tomorrow this guy will work a deal
with me.
“DELEO: Okay.
“COOLEY: If I get this thing denied today, it'll be done.
“DELEO: Okay.
“Cooley reiterated his position later when he met with DeLeo again before the
hearing took place:
“COOLEY: Here ... if he doesn't get that today he's got to cut a deal.
“DELEO: (IA) was it served?
“COOLEY: It was served at my office, yesterday afternoon. My guy's out of
town, my guy's back in Seattle, I'm just gonna tell the judge that I can't get my client I'm
not gonna okay one nickel going out (IA) ... see they've got to work this deal now.
“DELEO: (IA)
“COOLEY: If he denies it.
“DeLeo confirmed what disposition of the motion Cooley was seeking from
Shields at the conclusion of their conversation:
“DELEO: I'll be back (Inaudible)
“COOLEY: Alright.
“DELEO: (Inaudible) ... We want to stall it till next week.
“COOLEY: Fine that's all we need.
“DELEO: (IA)
“COOLEY: That's all we need.
69
“DeLeo proceeded to meet with Shields in his chambers, just before Shields heard
the Nichols motion. A brief exchange between Shields and DeLeo, in which DeLeo
echoed the strategy he and Cooley had just discussed, confirms that Shields was on board
with the plan to fix the case:
“DELEO: I'm going out of town next week. (IA) California (IA) stall it 'till next
week and the case will be settled.
“SHIELDS: All right.”238
***
“One of DeLeo's first remarks to Cooley about the prospect of influencing Shields
was:
No, he'll do whatever we want. [A]ll he's wan ... worried about is this. That's what
I'm saying and you know and you, you know how, what to do.
“Cooley testified that when DeLeo told him "all he's wan ... worried about is this,"
DeLeo had rubbed his fingers together in a gesture Cooley took to mean "money". Later
in that conversation, the references to bribes became more explicit:
“DELEO: (IA) all you got to do is tell me what you want me to give him.
“COOLEY: Alright you tell me what's fair Patty.
“DELEO: I don't know.
“COOLEY: Yeah.
“DELEO: I know. (IA) know all I want to do, all I want to do is lock him up.
“COOLEY: There's big bucks involved in it.
“DELEO: (IA) You tell me what you want to do.
“COOLEY: There's big bucks involved.
“DELEO: You tell me what you wanna (IA) do.
“COOLEY: Well you tell me whatever is fair to start.
“DELEO: I don't care. It don't make any difference.
“COOLEY: Alright give me a normal number.
238
United States v. Shields, Slip Op. at ____.
70
“DELEO: I have no idea.
“COOLEY: I've never done anything before in the civil area.
“DELEO: I have no idea.
“COOLEY: So numbers I, I don't care what the numbers are. You know if it's
worthwhile.
“DELEO: I don't know.
“COOLEY: If I, if I can walk in and look like a star.
“DELEO: He'll do it, he'll do it like this.
“COOLEY: Okay.
“DELEO: Okay. He'll do anything. You tell me what you want me to give him.
“COOLEY: How about, how about 2500?
“DELEO: Fine.
“Again, Cooley testified that when DeLeo said, "[A]ll you got to do is tell me
what you want me to give him," he understood DeLeo to mean how much money they
were going to pay Shields.
“DeLeo later reiterated Shields' contentment to rule as Cooley wished so long as
he was paid in his later conversations with Cooley. When DeLeo and Cooley met on
August 19, 1988, just before Shields first heard Cooley's motion for preliminary relief in
the Nichols case, DeLeo told Cooley, "Give me the money and I'll give it (IA)." [citing
recording] Cooley testified DeLeo had said "I'll give it to him," meaning "to Shields."
The first bribe of $2,500 then changed hands between Cooley and DeLeo. Shortly
thereafter, DeLeo informed Cooley that "[Shields] won't take the money till it's granted."
Several days later, when Cooley met with DeLeo to discuss an impending, second
hearing in the Nichols case, Cooley asked DeLeo whether Shields had been happy with
the first bribe:
“COOLEY: Alright, but I mean, with him, (IA) was he happy with what I gave
him before.
“COOLEY: Ok, as long as he's happy that's the you know that's the main thing.
(IA)
Cooley testified that in response to his question, DeLeo had nodded his head. The
question of money came up again as Cooley emphasized to DeLeo that he wanted Shields
to continue the forthcoming hearing so that the case would remain in a favorable posture
for settlement:
71
“COOLEY: (IA) You tell me, you know again, you know I know he'll take some
heat from the other side. If he can get me couple weeks date Pat, we can probably get this
whole thing done. In other words if he can get me a couple weeks date.
“DELEO: (IA) Let's give him another two bits.
“COOLEY: Alright fine if that[']s fair with him ...
“Cooley understood DeLeo to be suggesting that he pay Shields another $2,500.
Cooley handed that amount to DeLeo at a subsequent meeting on August 30, 1988. Again
Cooley asked DeLeo whether Shields was happy. DeLeo's response was inaudible on the
tape, but Cooley testified that DeLeo had responded affirmatively with a nod of the head.
DeLeo confirmed Shields' satisfaction with the money during a phone conversation he
had with Cooley on September 1, 1988:
“DELEO: I absolutely think it's no problem, because he was like doing
somersaults.
“COOLEY: Okay, great.
“DELEO: He goes oh, I thought it was all part of this ... I says no, never part of
the (IA).
“COOLEY: Good.
“DELEO: Okay? (IA)
“COOLEY: Oh, then you saw him a second time, then.
“DELEO: I actually don't think there's ever going to be a problem.
“COOLEY: Okay.
“DELEO: But I said no, I jus' told ya, now I'll, I'll see you at the end of this case.
“COOLEY: Okay.
“DELEO: I, I, told the other lawyer. I said I'll see you at the end of the case and
he's like doin' somersaults, (IA) I never expected to see you again until the end of the
case....
“Cooley confirmed that he understood these references were to Shields and his
satisfaction with the bribes that had been paid. Ultimately, after the Nichols case was
resolved, Cooley met once again with DeLeo and sought his guidance as to how he
should pay both defendants for their assistance:
“DELEO: You got your cut?
72
“COOLEY: Yeah I can probably take mine out now I put the check in there
almost what, a week and a half ago so I'm sure the check is cleared by now.
“DELEO: So how much do you wanna go?
“COOLEY: I mean you tell me Patty.
“DELEO: I don't care Bob.
“COOLEY: Tell me what, cause I don't want, I don't want the other guy gettin
angry either think we're cuttin' him out cause I mean if he needs some more let me know.
“*24 DELEO: (IA)
“COOLEY: You tell me.
“DELEO: (IA) give him another twenty-five.
“COOLEY: I mean will that be enough, will he be uh ...
“DELEO: (IA) I, you know what, (IA) have to give anything.
“COOLEY: I mean you tell me, again I have to go, may have to go back there
again for something and he's the Chief Judge we don't [want] to have a problem up there.
(IA) we'll give him another 1,000 I mean that's not a whole lot, that's not a little.
“DELEO: (IA)
“COOLEY: Is five thousand good for you?
“DELEO: Sure.
“COOLEY: I mean is that fair?
“DELEO: Yeah
“COOLEY: Ok, then why don't I see you tomorrow morning, I'll give you call
tomorrow morning and I'll met you tomorrow morning and I'll get it to you tomorrow.
“Cooley testified that he gave $6,000 to DeLeo on the following day.
“All of these exchanges supported the government's allegation that Shields and
DeLeo had induced Cooley to part with his money by conveying the impression to
Cooley that Shields would rule in whatever way Cooley desired so long as bribes were
tendered. Moreover, as the Court noted in its pretrial opinion denying defendants' motion
to dismiss the Hobbs Act charges, the economic harm theory was not precluded by the
73
fact that Cooley was a government informant and therefore could not truly have feared
economic harm from the defendants.”239
2. ABSCAM Transcripts
“On February 2, 1980, Weisz, accompanied by Rosenberg, drove to the Hilton
Hotel at New York's Kennedy Airport to meet with Amoroso and Weinberg. Amoroso
told Weisz that the wealthy Arabs were pleased with the [Congressman Richard] Kelly
transaction and, indicating that they “need[ed] a few [more] of these guys in our corner,”
asked Weisz if he had “anybody else in mind at this particular time?” Weisz was
agreeable to bringing additional people to the Abscam operatives:
WEISZ: There's other ones, yes.
“AMOROSO: All right. How about the same arrangement?
“WEISZ: I don't see why not.
“AMOROSO: Okay.
“WEISZ: Seems satisfactory.
“····
“WEISZ: If you wanna do exactly the same thing, I'll get you somebody else to
do exactly the same thing.
Weisz asked Weinberg to call Ciuzio and was surprised, but unconcerned, that
Amoroso intended to deliver Congressman Kelly's $75,000 personally:
“AMOROSO: I got fifty for you, fifty for Bill [Rosenberg], and then we got fifty
for Gino [Ciuzio].
“WEISZ: And you're gonna ··· deal direct with ··· Kelly?
“AMOROSO: Yeah.
“WEISZ: Ok ··· I see···· As long as he agrees ··· [t]hat's perfectly okay. I couldn't
care one way or the other.”240
Repeatedly the public officials talked mostly about the legitimacy of the proposed
projects, and had to be lured carefully into talking about bribes. For example City
Council President Schwartz said, “[I]f it isn’t something outlandish, if it is something that
239
United States v. Shields, Slip Op. at 23-24. [citations to trial transcript omitted]
United States v. Weisz, 718 F.2d 413, 423 (D.C. Cir. 1983) (affirming convictions of Ciuzio,
Weisz and Rosenberg, intermediaries who arranged a meeting with Congressman Kelly). Anthony
Amoroso was an FBI special agent operating undercover.
240
74
should and can be handled, and I can, I can’t think of anything that couldn’t be
handled.”241
Evidence was collected through video recordings made of meetings between the
targets and undercover agents at a house in Washington, a yacht in Florida and hotel
rooms in Pennsylvania and New Jersey. In some cases, the defendants were willing to
discuss the bribe, more or less explicitly:
“In discussing the political situation in Philadelphia, and City Council in
particular, Johanson boasted that of the 17 councilmen, he and Schwartz was each a “very
bright fella”, and “after that there ain't a brain in the closet.” He spoke of his and
Schwartz' importance, and stated that Schwartz, Jannotti and he “run the City Council.”
Wald then asked about Jannotti:
“WALD: Would he be interested in doing business with us.
“JOHANSON: I don't know that it's necessary but if you want to we can.
“WALD: I don't know-if it is-you're the best judge of that.
“JOHANSON: I think George is ah“CRIDEN: Well, it might not be a bad idea to bring Harry up.
“JOHANSON: We can bring Harry up. Harry's the Majority Leader. He's the-ya
know, second in command.
“WALD: Yea.
“JOHANSON: He's got seniority.
“After some additional discussion, the following exchange took place:
“HARIDOPOLOS: Are you acquainted with how much ah, ya know, ah for the
favor and for all these assur-assurances, right.
“CRIDEN: Right.
“HARIDOPOLOS: You know how much it is?
“JOHANSON: Sure.
“HARIDOPOLOS: How much is it?
“JOHANSON: Twenty-five.
241
Jannotti, 673 F.2d at 585.
75
“HARIDOPOLOS: Okay, ah but, of course, ah, we have to have these proper
assurances. You do us a favor, we're doin you a favor.
“CRIDEN: Obviously.
“JOHANSON: Sure.
“Johanson gave his assurances and received $25,000. The following exchange
took place:
“WALD: And for 25 we've got a friend.
“JOHANSON: Right.”242
In the cases of other defendants, the video recording constituted essential
evidence because the defendants could be seen taking bribe money from undercover
agents, but refused to discuss it, or to discuss it only indirectly. Councilman Jannotti was
especially coy:
“Wald then took an envelope from his briefcase (containing $10,000 cash),
handed it to Jannotti, and asked if “that amount is sufficient.” Jannotti took the envelope,
answering, ‘We've discussed it.’
“HARIDOPOLIS: You know how much it is?
“CRIDEN: Tell him, you can tell him.
“HARIDOPOLIS: How much is it?
“CRIDEN: Tell him?
“JANNOTTI: We won't even discuss it.
“WALD: Ok, but you did discuss it with Howard?
“JANNOTTI: We won't even discuss it.
“HARIDOPOLIS: Is this arrangement please, pleasing to you?
“JANNOTTI: As I say, we won't even discuss it.
“WALD: Ok, well, we've done our business.”243
Council President Schwartz was a little less discreet:
242
Jannotti, 673 F.2d at 583
United States v. Jannotti, 673 F.2d 578, 589 (3d Cir. 1982). Jannotti was the majority leader of
the Philadelphia City Council. Wald and Haridopolos were undercover FBI agents. Criden was a
Philadelphia attorney who functioned as an intermediary. He was convicted along with Jannotti.
243
76
“WALD: I can go back and say I met a gentleman. We had a business deal uh,
I've made a friend in Philadelphia.
“SCHWARTZ: Yes.
“WALD: And things are taken care of ...
“SCHWARTZ: Right ...
“WALD: Okay, and the sums appropriate and we're in good shape. Okay.
“Shortly thereafter as seen on the videotape, Wald opened his briefcase and,
without discussion of the amount, handed Schwartz an envelope (containing $30,000
cash), which Schwartz placed in his jacket without counting. The nature of the
commitment Schwartz made was reiterated:
“WALD: The legislative problems we've taken care of?
“CRIDEN: No problem.
“WALD: Okay, that I can, that I, that I got assurance on.
“SCHWARTZ: Right.
“CRIDEN: You have, you have no problem.
“WALD: Okay, the other things can be done through attorneys, but the legislative
problems don't exist anymore?
“CRIDEN: That's right.
“SCHWARTZ: No. Do not.
“WALD: Okay.”244
One video recording showed Congressman Kelly stuffing cash in his suit jacket
pockets, after he tried to persuade the undercover agents to bribe him through an
intermediary:
“Kelly agreed to assist the Arabs, and, as recorded on the video tape, indicated
that Amoroso's arrangement with Ciuzio was fine:
“All of this stuff that you've been talking about ··· I don't know anything about
that, I'm not involved with it··· Gino and these guys are my friend [s] ··· what you said
makes a lot of sense to me ··· I'm gonna stick with ya ··· and you can put me out there on
the hill, and when you come back in the morning, I'll still be there···· So this ··· will be
244
Jannotti, 673 F.2d at 586-587 [internal citations to transcript omitted]
77
helpful to me and ··· maybe ··· down the road sometime, you can do me a favor. But in
the meantime, whatever these guys are doing is all right, but I got no part in that···· In
other words, ··· your arrangement with these people is ··· all fine···· [Y]ou have my
assurance that what you have told me here, sounds like a good thing and ··· I will ··· stick
by these people.
After Amoroso received a call from Assistant United States Attorney Jacobs who
was monitoring the meeting and who thought Kelly was being “cute,” and after Kelly
conferred with Ciuzio, Amoroso sought to clarify Kelly's position. Kelly made it clear
that he wanted the money given to Ciuzio:
KELLY: [Y]ou and I gotta ··· learn to talk to each other.
“AMOROSO: Well I know ···
“KELLY: [D]on't stumble around, jump in there ···
“AMOROSO: Jump in there and give it to you?
“KELLY: Sure.
“AMOROSO: Ok. I was under the impression ··· when this thing was set up ···
that I was gonna give you something ··· tonight ···
“KELLY: Yeah.
“AMOROSO: Ok, and that the rest was gonna come ···
“KELLY: Yeah.
“AMOROSO: when you introduce that.
“KELLY: That's right.
“AMOROSO: Ok, is that, is that still ···
“KELLY: Yeah. Here's ··· what the thing is. Umm ahh just simply deal with Gino
[Ciuzio] about it.
“AMOROSO: Ok. You want me to give him the money ··· here?
“KELLY: Sure.
“However, when Amoroso indicated that all of the money was intended to go to
Kelly, and that Ciuzio would be separately compensated, Kelly was confused:
“I understood that what you were talking about was ··· all there was as far as
Tony [sic, should be Ciuzio] was concerned and so as far as I'm concerned, he takes
78
that···· [B]ut I see I didn't know ··· about this other arrangement···· It's ··· all right but I
didn't know about that. So lets talk about it some.
“Amoroso explained that he thought that giving the money directly to Kelly
would avoid witnesses, thus protecting him. Kelly agreed:
“AMOROSO: I thought that the best way of doing it was ··· a one on one between
you and I. Now to me that sounds like ··· if you're looking for security ··· the best way of
doing it.
“KELLY: I think so too
“Amoroso then gave Kelly $25,000 in cash and Kelly stuffed the money into the
pockets of his suit.”245
Although Weinberg and the undercover agents consistently insisted on dealing
with the public officials directly, in one case, involving Congressman Jenrette, the best
they could do was to pass money through an intermediary and then get telephone
confirmation from Jenrette that he received it.246 Earlier, Jenrette said, “Don’t get me
wrong . . . I got larceny in my blood,”247 after he declined, for the time being, an offer of
a $50,000 advance payment for introducing a private immigration bill for the sheik.
B. Appendix II
Position of Special Prosecutor






Responsibilities
conduct investigations into possible corrupt behavior by public officials
create and lead a team of law enforcement officials whose duties will be to assist
and participate in the special prosecutor’s investigations
prosecute corrupt public officials
report annually to the Assembly regarding the budget, the effectiveness of the
investigations, and any requests for greater resources or authority; the report
should be a public document
Competencies
intimate knowledge of Kosovo’s laws and criminal investigation procedures
familiarity with undercover investigative procedures and technologies
United States v. Kelly, 707 F.2d 1460, 1466-1467 (D.C.Cir. 1983) (reversing district court’s
disapproval of ABSCAM investigative techniques as entrapment and reinstating conviction of
Congressman Kelly); see also United States v. Weisz, 718 F.2d 413, 430-431 (D.C.Cir. 1983) (denying
motion to exclude Kelly “money stuffing” scene from evidence because of likelihood it would inflame jury
against co-defendant). Weisz was convicted of arranging meetings between undercover agents and
congressmen for the purpose of bribing them.
246
Jenrette, 744 F.2d at 820 (describing recorded telephone call).
247
United States v. Jenrette, 744 F.2d 817, 820 (D.C. Cir. 1984) (affirming conviction of
Congressman John Jenrette).
245
79





advanced knowledge of Kosovar political and financial institutions
sophisticated understanding of Kosovo’s culture
highly motivated individual with strong sense of civic and national duty
strong leadership, political and organizational skills
independence from the influence or intimidation of public officials and criminals





Qualifications
ethnic Kosovar Albanian
advanced university degree in law
investigative training – preferably from outside Kosovo
experience in leading a criminal investigation
no prior convictions or participation in corrupt activities
C. Appendix III
The following is a chart distributed at an anti-corruption conference held in
Pristina in 2002.
1. Fighting Corruption at the Municipal (Local Government)
Level
Problems
Solutions
80


Lack of transparency in:
 Drafting the budget in absence
of public debate
 Lack of transparency in
decision-making
 Tenders
 Misinformation given to citizens
with regard to municipal
property and the regulations







Low salaries

Unresolved property issues

 Legalization of illegal
construction
 Unregulated public procurement

 Lack of documentation and
urban plans within the
municipalities


Lack of transparency in the work of
political and financial committees


Business permits issued by the
municipality

Nepotism – Employment of family
members

Lack of laws

Lack of monitoring of the local
government by citizens

Citizen awareness and education
regarding authority of the local
governments

Engaging in conflict of interest activities

Government bureaucracy

Modify the rules and procedures of the
municipal assembly to allow public
participation in budget planning.
Publish the municipal budget in the media
Adopt a law on public procurement
Adopt a law on corruption and define
sanctions against individuals involved in
corruption
Define through an act what constitutes a
conflict of interest for municipal officials
Define through a specific act what measures
are to be taken against officials who hire
administrative personnel on the basis of
family or party affiliations
Create a committee, external to the
Municipal Assembly, to monitor budget
implementation
Incorporate into the Municipal regulations a
requirement that the members of oversight
committees for projects financed by the
Municipal Assembly must not be
employees of the municipal administration.
Adopt a regulation that prohibits the Central
Fiscal Authority from working as bookkeepers/accountants for private businesses
Require the municipality publish quarterly
expense reports
Provide anti-corruption training for the
administration
Identify private versus state owned property
81
2. Fighting Corruption in Central Government
Problems
Solutions

Lack of transparency

Adopt a freedom of information law that
ensures public access to government
information, government decision-making,
except when there is a clear reason why this
information should not be released

Financial disclosure

Adopt a financial disclosure law. Public
employees would be required to disclose on a
yearly basis all of their financial interests. This
would apply to managers and directors of
government run utilities and government funded
utilities

Conduct an audit of government owned
enterprises to ensure that they are being run
properly.

Procurement law

Divide the regulatory function from the
operational function; the person or organization
responsible for enforcing procurement rules
should not be engaging in any procurement
activities themselves.

Tenders

Selection committees at the operational level,
i.e. the committees that are actually selecting
the winning tender, should be staffed by
government representatives and independent
NGO observers, to open up the process and
ensure that the process is being conducted
legitimately.

Independent regulatory agencies

Should include some observers from NGOs
and civil society, to see that regulations are
being properly enforced.

Transparency

Provide public clarity about who within Central
government is responsible for what;

Dissemination of information on the
organization and operations of Central
government to the public so they know whom to
address when they have a problem or issue.
82

Lack of accountability

Creation of an independent Auditor General
and creation of departments on anti-corruption
within each ministry to police ministries. The
Auditor General will have the authority to
police the ministries and the government and
report directly to the Parliament. Ministries and
agencies Central government should be held
more responsible to report to an Auditor
General or in the case of procurement to a
procurement regulator.
3. Fighting Corruption at the Parliamentary Level
Problem


Conduct of members of Parliament –
MPs must be ethical and transparent in
all their actions.
Conflict of interest
Solutions

Code of conduct for MPs, with enforcement
power

Establish an Ethics Committee to ensure
enforcement

Require financial declarations by MPs and
include penalties for providing false
information on the financial declaration

Create conflict of interest statutes

Establish a gift ban – public officials should
not be allowed to accept gifts or they should at
least be required to disclose this information to
the public and let the public decide

Corruption of public companies and
public officials

Bribery statutes and a code of conduct,
enforceable for all people that are associated
with agencies that take public money; if
convicted of an act of bribery, that person
would never again be allowed to work in a
public agency

Parliamentary oversight UNMIK and
the Executive Branch

Question time- MPs can ask questions of the
government;

Auditing Committee with the authority to
question the executive branch agencies
regarding expenditures

Whistle-blower statutes that protect those
people who expose corruption and ensure that
83
they do not lose their jobs

Sunset legislation – every two to three years,
programs funded by the government should
undergo a performance evaluation to ensure
that these programs are effective and that
money is being well spent through these
programs.

Funding of political parties

Create an independent agency to review the
actions of parties and candidates

Business practices – contracts and
procurement

Assembly should have clear guidelines
regarding contracts and procurement;
government oversight of this process

False documents – building permits,
IDs, vehicle registrations

Incorporate into the criminal code; criminal
sanctions, fines and penalties; ensure strict
enforcement and adherence to these regulations

Money laundering

Strong regulations and criminal penalties for
money laundering violations

Monopolies and price fixing

Adopt adequate legislation on anti-competitive
practices, monopolistic practices, price fixing
and collusion; requires an oversight function to
monitor and police these kinds of activities
4. Fighting Corruption in the Business Sector
Corruption increases costs for enterprises, and at the same time decreases profits,
this decrease in profits decreases the motivation to continue in business and the
businessman and may eventually decrease the level of staff or close the enterprise
completely.
Problems
Solutions
84

Delays in receiving permits

Relations with the tax officials and
the corruption involved

Corruption in the tendering process

Lack of urban strategic plan, which
results in ambiguities regarding
property and awarding of permits;
those seeking permits usually try to
resolve the ambiguities in a corrupt
manner.

Privatization process may be
accompanied by a high level of
corruption

Lack of effective governance at the
municipal level

Impose transparent regulations with regard to
giving of permits, establishing clearly defined
time frames, respecting the established time
frames, and providing the reason when a
permit is denied.

The business community, i.e. the private
sector, needs to point out to government
agencies cases of corruption ; businesses that
refuse be included in this practice, may pay a
high price by being denied access to certain
markets

Raise the level of information and quality of
corporate governance enterprises, by insisting
on the development of management functions
within these enterprises.

Clearly define the concepts of partnership
and conflict of interest.

Ensure that property rights and the rights of
shareholders, especially minority
shareholders i.e. those who have fewer
shares, are respected.

Develop reporting instruments and internal
audit procedures, as well as undergo
independent external audits.

Create a web page concerning the issue of
corruption.

Encourage dialogue between government
and the business community.
85