TCS Daily

Terrorism and the Mob

By William J. Stuntz - October 20, 2004 12:00 AM

By now, everyone in America knows that John Kerry has compared fighting terrorism to prosecuting organized crime figures for gambling and prostitution. The comparison has attracted a lot of criticism. Actually, it's a pretty good analogy -- but it leads to a different lesson than Kerry believes.

Begin with the candidate's own words:

"As a former law-enforcement person, I know we're never going to end prostitution. We're never going to end illegal gambling. But we're going to reduce it, organized crime, to a level where it isn't on the rise. It isn't threatening people's lives every day, and fundamentally, it's something that you continue to fight, but it's not threatening the fabric of your life."

When Kerry was a prosecutor in the late 1970s and early 1980s, "organized crime" meant the Mob. Gambling and prostitution were among the many ways Mafia families and similar organizations made money. Prosecutions for those crimes could take down leading crime bosses. That tradition goes all the way back to the 1930s, when then-District Attorney Tom Dewey made a national name for himself by nailing Lucky Luciano on prostitution charges.

The point of those prosecutions was never to stamp out gambling or prostitution. Gambling is hardly a scourge; most states run lotteries. Prostitution is widely tolerated. To prosecutors like Dewey and Kerry, those crimes were pretexts -- tools for convicting and punishing people like Luciano. Just like prosecuting Al Capone for tax evasion. The focus was on nailing the criminal, not stopping the crime.

Why not prosecute people like Capone and Luciano for more serious crimes? Mobsters used violence to take over legitimate businesses and labor unions, then looted them. The result was economic strangulation and fear. Why not convict and punish Mafiosi for that? Sometimes, we did. But only sometimes, because proving racketeering and extortion is and always has been both hard and expensive. Local prosecutors like Kerry couldn't afford to do it -- if they had tried, they would have had no time or manpower to go after ordinary street crime. Gambling and prostitution cases were the next best thing

Enter terrorism. Prosecutors would like to nail would-be mass murderers for planning to blow up buildings or spread nerve gas or otherwise slaughter innocent men and women. But that is even harder than prosecuting Mafia bosses for racketeering. Proving that Mohamed Atta is guilty of mass murder is easy -- but he's already dead. Proving it ahead of time, before September 11, proving it beyond a reasonable doubt, proving it without disclosing sources the government will need in other investigations -- those things are nearly impossible.

That is why, when the Justice Department prosecutes would-be terrorists, it usually prosecutes them for something other than terrorism: immigration fraud, lying to government agents, money laundering, and the like. At least in this respect, Al Qaida is like the Mob. Pretext prosecutions are a practical necessity.

But hardly a solution. Pretext prosecutions are bad public relations -- they make the defendants seem sympathetic, like people who are being hounded by the government for penny-ante crimes. They are often expensive -- proving crime bosses guilty of gambling or prostitution was easier than proving racketeering, but it wasn't a walk in the park. So too, proving money-laundering might be easier than proving attempted mass murder, but it is far from a slam dunk. Finally, pretext crimes rarely generate long sentences. If you want to put someone away for the rest of his life, a prostitution or mail fraud charge is a poor way to do it.

All of which explains why the criminal justice system was never able to kill off the Mafia. Competition from drug gangs, state-sponsored lotteries, the decline of industrial unions, creative use of other regulatory tools by officials like then-Mayor Rudy Giuliani -- these and other trends killed off old-style organized crime. The criminal justice system didn't, because it couldn't. Proving the relevant crimes was too expensive.

If we wait long enough, Islamic terrorism will meet the same fate as the Mafia. Long-term political and social forces in the Muslim world will push toward secular democracy, not religious dictatorship. Eventually, terrorism will be "a nuisance," just as Kerry said. But that will take awhile, just as it took awhile for market forces to wear down the Mafia. We can't just wait; we have to do something to speed that happy day along.

And criminal prosecutions are not a promising option. No one is willing to wait for a nuclear weapon to blow away an American city and then prosecute the conspirators who survived the blast. Nor does it make sense to devote massive resources to building cases for small-potatoes crimes that will put away would-be murderers for a year or two, after which they can resume their homicidal careers.

Perhaps that is why military and intelligence services have played such a large role in the war on terrorism. Some crime problems are intractable. Seen as a crime problem, terrorism is intractable too. It makes sense to redefine the problem, to look for other tools. This war needs to be fought by the Army and the CIA, not merely the Justice Department.

Therein lies the real problem with Kerry's comments. Kerry thinks America's seventy-year-long battle against the Mafia was a success story. He is wrong. Tolerating Mob bosses (which is what we did for most of those seventy years) was very costly. Tolerating terrorism -- or leaving it to police and prosecutors, which amounts to the same thing -- would be a disaster.

William J. Stuntz is a Professor at Harvard Law School.


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