113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSPREVENTION AND REPRESSION OF CORRUPTION IN
NON-LAW ENFORCEMENT AGENCIES
Michael A. DeFeo*
I. INTRODUCTION
My previous paper dealt with how law
enforcement agencies, including the agency
which I represent, the FBI, attempt toprevent and repress internal corruption.
The focus in this paper will be on how ourlaw enforcement agencies can deal withcorruption in the non-law enforcement
agencies of government. Phrasing the focus
in that way involves an initial definitional
decision, which is that we will not discuss
corruption which takes place exclusively
within the private sector. Some countries
do penalize the corruption of a purchasing
agent of a business corporation or of a bankloan officer with the same substantive
statutory provisions applied to penalize thecorruption of a government purchasing
agent or a cabinet minister with the power
to issue government grants. It can beargued that in many ways the economic
and social harms of private and public
corruption are similar. In my opinion,
however, the preventive and repressive
mechanisms available to deal with public
corruption are much different from thoseneeded to combat private corruption, so thearbitrary decision has been made to limit
this discussion to public corruption.
To avoid violating copyright laws, should
they be applicable, I also wish to make it
clear that the basis for this paper is a
publication which I prepared for the United
Nations Centre for Social Development andHumanitarian Affairs and its Crime* Assistant Director, Office of Professional
Responsibility, Federal Bureau of Investigation, US
Department of Justice, United States of America.

Prevention and Criminal Justice Branch,which was published as Numbers 41 and
42 in the UN International Review of
Criminal Policy entitled Practical
Measures Against Corruption.
II. LEGISLATIONThe UN publication began with theobservation that a prerequisite of any
campaign to effectively combat corruption
is an adequate body of penal law
prohibiting those forms of official
misconduct most harmful to honest
government and to the citizenry. A numberof commonly penalized corruption offenses
were described in some detail because thatpublication was written for a generalaudience. Since this audience is composedof experienced criminal justicepractitioners, we need not spend a great
deal of time discussing what penal statutes
are desirable to combat corruption, otherthan to mention a few common problems.
Obviously, a theft statute, or somecomparable legislation, must be broad
enough to include intellectual property,
computer crime and information, and othergovernment assets worth being stolen or
misappropriated.
Common law systems which have notmodernized the traditional offenses ofbribery and extortion generate troublesome
questions about who introduced the corrupt
suggestion, which determines whether apayment is a bribe or an extortion. All ofthese offenses become problematic when
the public official acts for improper motives,
but not for a quid pro quo or any material
advantage.

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RESOURCE MATERIAL SERIES No. 56
The problem of a public official favoring
family, friends, clan or political party
members rather than taking action or
distributing benefits impartially, to theextent that it is addressed in penal
legislation, is usually regulated by statutes
defining abuses of position or conflicts ofinterest. Because of the powerful politicaland social interests involved, what isprohibited as an abuse of position or aconflict of interest tends to be narrowly
defined by legislatures and courts. In many
countries it is assumed that elected
officials, and politically appointed
executive officials, will favor their own
constituents and supporters, rather thanbe scrupulously impartial. Penalprohibitions sometimes only prohibit action
on behalf of a family member or when theofficial has some direct financial interestin the matter, and do not reach other formsof favoritism and cronyism, which are left
to be dealt with by the political process.
In my experience, it is rare to find a total
failure to penalize anti-corruption offenses,
but it is common to encounter a lack ofoperability because anti-corruption
statutes are antiquated or practically
unenforceable. For example, a theft statutetoday which applies only to tangible objects
without penalizing unauthorized taking of
information is not worthless, but it iscertainly inadequate unless supplemented
by a specific law protecting intangible
information. A common deficiency,
sometimes intentional, is a grand sounding
law with no means to collect the evidence
necessary for enforcement.
Bribery is a covert, consensual activity
which will not be spontaneously revealed
and as to which there is normally nocomplainant and no means to identify
witnesses. If a legislature penalizes thecrime itself, or increases the penalty forbribery in response to some highly
publicized scandal, the community is likely

456

to be favorably impressed. The public,
however, and particularly the news media,
should also examine whether those samelegislators have rejected all feasible meansof collecting the evidence necessary to prove
corruption offenses. Penal anti-corruption
statutes can easily be emasculated byfailing to authorize electronic surveillance
for the crime of bribery, or to provide an
immunity procedure to compel one party
to the bribe transaction to provide evidence
against the recipient, or to fund an anticorruption unit to investigate such crimes.
Indeed, the most commonly overlooked
element of penal legislation is how it canbe enforced in practice. For example, themost cost-effective way of enforcing a penal
statute against consensual criminal
activity, like bribery, may be to utilize
undercover agents and so-called “sting”
operations to make such crimes visible andpunishable. To make an undercover
approach feasible, it is necessary to
anticipate technical defenses, to plan ahead
and to penalize an offer or agreement toperform an official act, even if that act could
never be performed in reality because it is
only part of an undercover scenario.
One type of anti-corruption statutewhich comes into fashion periodically is afinancial disclosure law, requiring elected
or appointed officials to declare various
assets, income and business transactions.
Those statutes can function effectively if amonitoring government agency, political
opponents, or the news media devote
sufficient energy to expose discrepancies
between what is reported on the form andwhat the minister or official reallypossesses or controls. However, at least in
our American government, so many career
government officials, some at very low
levels, are required to execute disclosurestatements that the forms are normally
filed with only a cursory review. There may
be a designated ethics officer, frequently

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
located within the General Counsel orLegal Advisor’s office in each agency, whochecks to see that all the blanks are filled
in and that the information looks regularon its face, but there is rarely an effective
control on the accuracy of the information
being disclosed. Without an effective
control entity which actively checks thedisclosures against the reporting
employee’s life style, expenditures andholdings, disclosure can be what doctors
call a “placebo,” a sugar pill, a harmlessbut totally ineffective remedy administeredto patients for test purposes or to keep them
happy, but without any curative effect.
Typically, legislatures enact disclosure
requirements, or executives impose themon subordinates, because filling out a form
is a low cost initiative which sounds as
though some dramatic monitoringmechanism is being established which will
prevent and/ or reveal corruption. A useful
litmus test which can help reveal thesincerity and significance of any disclosure
program is to ask what budgetary
resources are being provided to control theaccuracy of disclosure forms. If thoseresources consist of file clerks, storage
cabinets and perhaps one or two
professionals to verify the procedural
regularity of the forms, with noinvestigative resources to test thetruthfulness of the disclosures, then do not
expect any integrity dividend unless thenews media, or political or bureaucratic
opponents, target the disclosures ofparticular officials.
III. ORGANIZATIONALSTRUCTURES
A fundamental question with regard tocorruption control relates to the structures
necessary to effectively implement anticorruption measures. Is a specialized anticorruption unit necessary or can thatfunction be handled within existing

structures? With regard to police,prosecutors and magistrates there are bothadvantages and disadvantages to separate
units. Among the disadvantages are
rivalries and barriers to communication
between a new authority and existing
structures, greater administrative costs
and personnel rigidities, and a diminution
in the prestige and morale of the generaljurisdiction organization by the loss of anticorruption authority and resources. A
separate anti-corruption unit is likely tocreate greater administrative costs andpersonnel rigidities. It is also likely to
provoke or continue controversy over whatorganizational factors should determine
whether specialized units should be set up
with respect to drug trafficking, gang
violence, art theft, environmental crimes
or any other crisis of the moment, and if sowhat relationship that unit should have toexisting structures. Finally, the questionof a separate specialty unit frequently
raises serious issues relating to reporting
relationships and organizational loyalties,
all of which can be very disruptive tomorale and the esprit de corps of an
institution.
The advantage of a separate unit are
specialization, greater security and control
and control of information, and direct
accountability. Accountability may well be
the greatest of these virtues, as it permits
policy makers to measure what success isbeing achieved with given resources andplaces anti-corruption responsibility on
identifiable persons. This highly visible
responsibility and ability to identify andmeasure results is particularly importantbecause of corruption’s nature as a covert
criminal activity which may never be
detected without aggressive law
enforcement efforts. At least in American
government, there is a distinct tendency
for corrupt situations to continue until
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RESOURCE MATERIAL SERIES No. 56
accountability is best achieved by creating
separate or even independent police,prosecutorial or magistrates’ units, or by
fixing the responsibility within existing
entities, should normally be determined by
local bureaucratic conditions andtraditions. Given the organizational
inertia which must be overcome to create
a separate unit, the natural bureaucraticcompromise would be to create a
specialized capability subject to existing
program management, such as anticorruption units within the overall criminal
investigative division, or perhaps within its
fraud section.
An overriding factor, however, is often
crucial in determining whether a separate
anti-corruption unit will be created, andthat is political or public pressure resulting
from a highly publicized scandal.
Announcing the creation of a new anticorruption unit is a splendid diversion fora political figure beset by continual bad
publicity about a scandal. Viewed from amore positive perspective, such scandalspresent a rare opportunity for an alert law
enforcement executive to secure resources,
jurisdiction or political consent for thecreation of an anti-corruption capability, ata time when the political powers are
unusually motivated to be seen as leading
law enforcement efforts to combat
corruption.
Normally, management by crisis is avery ineffective technique, but the creationof anti-corruption units in reaction to
scandals may be one of the rare exceptions
to that rule. One reason is that politicalmotivation to dedicate any resources tocombating corruption is frequently lacking
until a scandal erupts. Another reason isthat while resources may be dedicated to a
separate specialized anti-corruption unit
primarily for public relations purposes, theexistence of that unit achieves the essential
value of accountability, although it may

458

implicate other organizational frictions andcosts. Creation of a specialized anticorruption unit overcomes the core problem
of diffused responsibility which results
when a multi-functional bureau or office isinstitutionally responsible for combating
corruption, together with multiple othercompeting demands, but that responsibility
is not fixed in any one individual withdefined resources. When no individual isassigned dedicated resources with which
to work corruption cases, a lack of cases
may be justified organizationally because
no indicia of corruption were reported or
because higher priority cases of fraud,
subversion or other threats were being
pursued. Because of its covert, consensual,mutually profitable nature, a corrupt
situation or practice may continue for
decades without coming to the attention oflaw enforcement. Only when an aggressive
investigator is assigned a quantity ofdedicated resources and a defined mission
and held personally accountable to produce
useful intelligence or evidence on
corruption, will an agency be likely to haveany kind of reliable appraisal of the extent
to which corruption exists.
Another interesting organizationalquestion, which perhaps might have been
covered in my first presentation, is the
exclusivity of anti-corruption jurisdiction.
When a quantity of resources is dedicatedexclusively to a corruption matters, it is
tempting, as a matter of managerial andlogical clarity, to give the entity which has
been created to operate those assets amonopoly over development of all relevant
corruption investigations. This would
mean that a police or investigative agency
assigned the competence for drug control
would have exclusive jurisdiction toinvestigate drug trafficking, or that an
Inspector General within a ministry
distributing agricultural subsidies would
be given exclusive jurisdiction toinvestigate fraudulent subsidy claims and113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
associated bribery or prohibited
transactions. The exclusive assignment ofa function has the virtue of being easily
understood, and if other agencies orelements are permitted to pursue
allegations or instances of corruption there
probably will be failures to share necessary
information, investigative overlap andother indicia of inefficiency. However, thedemonstrated susceptibility of humannature to the corrupting influence of power
and to the temptations and wrongful
opportunities which come with authority
argues against the orderly logic of exclusivecompetence. The Latin maxim of quis
custodiat ipsos custodes reminds us toalways ask who will watch the watchmen.
A little redundancy and even competition
can be a healthy antidote to corruption,
because no one person or entity has thepower to protect or license illegal activities.
It may be inefficient to allow both
headquarters and local police units, or bothnational and state prosecutorial
authorities, or both the police and an
Inspector General’s Office, to investigate
allegations of the same type of corruption.
Indeed, an obligation to refer or report all
corruption investigations to a primary or
central anti-corruption authority may beappropriate, with some flexibility as to thetiming of the reporting obligation.
Nevertheless, just like multiple engines ona passenger aircraft, redundancy in a highrisk situation is generally a worthwhile
investment. The legislative andmanagerial challenge in this area is toallow just enough redundancy, and evenrivalry, to deter corruption or to expose it
if the primary anti-corruption authority
fails to do so, without disproportionately
reducing the flow of intelligence and ofprosecution opportunities to the primaryauthority.

IV. PROCEDURALIMPLEMENTATION OF AN
ANTI-CORRUPTION PROGRAM
When an investigating authority, be it apolice unit, a prosecutor or an investigating
magistrate, is initially faced with an anticorruption task, certain fundamental
management questions may need to beresolved. If the investigator’s jurisdiction
is previously defined, and the matter arises
within that jurisdiction in a routine
manner, such as a police report to aprosecutor or investigating magistrate,then little discretion or room for maneuveris left in defining or managing the task. In
non-routine cases, however, policy levelauthorities often feel the need to make newor special arrangements. Sometimes thisis not because the existing structures arenecessarily deemed inadequate on the
merits, but simply because a clamorous
scandal tends to dictate a politicallydecisive, aggressive-appearing response.
Creating a new unit or assigning a newleader to an investigating authority may
be of absolutely no substantive advantage
in terms of improving performance of theunit, but it can have an undeniable shortterm publicity and public relations value,w h i c h m a y b e t h e p o l i c y - m a k e r ’s
immediate interest. In other situations,the existing investigative authority may
need to be replaced or supplemented
b e c a u s e o f i n e f f i c i e n c y, l a c k o ftrustworthiness, or simply because a newform or method of corruption is forcing a
new response. To use the example
mentioned before, if the Inspector Generalof a ministry distributing agricultural
subsidies has failed to prevent or identify
illicit bribe payments associated with 25%
or 30% of the funds expended, and that
degree of corruption is revealed by aparliamentary inquiry, then executives of
the national judicial police should begin
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RESOURCE MATERIAL SERIES No. 56
assume organizational or individual
responsibility for investigating that type offraud.
A law enforcement executive called upon
to assume a new or extraordinary
responsibility to deal with a corrupt
situation or an anti-corruption program
will often find the situation very fluid.
Occasionally a timetable will have alreadybeen announced for a report or theconclusion of the inquiry, perhaps by apolicymaker with little grasp ofinvestigative realities, while otherpolicymakers will realize thatinvestigations often dictate their own
timetable. However, even a policymaker
who has announced an unrealistic
completion date for the inquiry will behappy to transfer not only the investigative
responsibility, but also the responsibility
for placating news media and public
interest, to the newly designated anticorruption authority or executive.
Policymakers may well be unaware of andrelatively uninterested in how a corruption
inquiry will be conducted or what will need
to be done, and may be willing to agree toany reasonable sounding terms or
conditions, so long as the terms do notthreaten to provoke an adverse media or
political reaction.
Consequently, a new or speciallyappointed anti-corruption authority or
executive may have the unaccustomed
luxury of negotiating or self-defining thescope, resources and configuration of thetask or entity. The executive who thinks
and plans ahead, and promptly analyzes
the anticipated needs of the inquiry to be
conducted, may have unprecedented
leverage to secure desirable resources andpowers. In the midst of a public clamorthat effective actions be taken against
recently exposed corruption, many
bureaucratic concessions may willingly bemade simply so that the policy maker460

bedeviled by media and legislativeinquiries and criticism can announce somedecisive action. Once a tentative selectionof a new or specially appointed anticorruption authority has progressed to
discussions with the candidate about
execution of the task, a policymaker
experiences a temporary loss of bargaining
power vis-a-vis the candidate, even if thatcandidate is an organizational subordinate.
Most policymakers would be loath to refuse
the resources or powers which wereconsidered necessary to a successful
investigation, for fear that blame for
eventual failure of the inquiry would be laidat their door. Also to be feared would be
the embarrassment and suspicion which
would result from a disclosure that thecandidate declined the appointment or
responsibility because denied adequate
resources to do an effective andprofessional job.
On the other hand, once the media andlegislative fixation on a scandal has passed,
once a new crisis has claimed the public’s
attention, there is very little reason to reevaluate or enlarge the resources or power
previously assigned to the anti-corruption
unit or investigator, and even a resignation
or request for transfer by the unit’s leader
is unlikely to be as feared as it would havebeen initially. Therefore, questions of thescope, power and configuration of the anticorruption unit which require external
action and assistance should be resolved
at the moment of the authority’s creationor unit leader’s designation. If special
decrees must be issued to create theauthority, the leader-designate should
insist on the ability to review them toensure that all necessary provisions areincluded. Special attention should be paid
to potential overlap and conflict with otheragencies. Those types of problems are
rarely satisfactorily resolved by two
independent competing entities without
intervention of a superior power at the113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
ministerial or political level. To resolve
bureaucratic problems it is advantageous
to seize the momentum of the moment
when political interest and sympathetic
attention are engaged and motivated by theneed to contain a scandal.
A request to investigate an act of alleged
bribery in one small aspect of a massive
and highly suspicious contract, may deal
only with the tip of the iceberg, with a hugemass of other corrupt practices andpayment lurking just beneath the surface.
The investigator must then make someeducated guesses, and take some risky
gambles, about the desired scope of theauthority’s desired mission. Should thatmission be narrowly defined to the initial
corrupt act of bribery or embezzlement ofgovernment program resources, which may
be proved without encountering serious
political resistance because only low level
persons are involved and the existing
publicity has made them expendable? Or,
recognizing the probable breath and depthof corruption in the program, should abroad mandate be sought? The first, moreconservative approach may permit theinvestigating authority to build a record ofsuccess by proving the suspected bribery
and identifying the indicia of morewidespread corruption, leading to an
expanded mandate.
However, one must recognize thatpolicymakers may not grant that expanded
mandate, requiring consideration of thesecond, riskier course of insisting on abroad mandate initially. If it is chosen, andthe inquiry develops evidence that theinitial allegation was indeed representativeof systemic corruption at the highest levels,
initially supportive policymakers may
become less enthusiastic supporters of theinquiry. This lack of enthusiasm may notnecessarily be an indicator or result ofcorruption. Rather it may simply reflectthat an anti-corruption authority or

executive may be created or appointed asmuch to abate a public relations problem
for a political administration or apolicymaker as for the law enforcement
goal of prosecution and incarceration. The
unpleasant political consequences of a
successful corruption investigation, which
renews negative publicity, will notnecessarily be welcomed by policymakers.
Bluntly stated, the foregoing discussion
is intended to convey that an anticorruption authority or executive should
arm itself at its strongest moment, which
will almost always be its moment ofcreation or selection, or at whateversubsequent moment when public attention
to its work is at its highest. If requests forforeign evidence, tax or personnel records,
or other official documents present thorny
legal issues or could be subject toobstructive delays, the moment of greatest
bargaining strength should be exploited togain guarantees of expeditious cooperation.
If high-ranking officials are potential
witnesses but can be expected to evade
testifying or producing records, an orderat a sufficiently high level of government
should be sought requiring that all public
employees will cooperate in the inquiry.
Of course, many other realities oforganizational and supervisory relations
and of legal limitations will dictate whatpowers and resources an anti-corruption
authority can secure at the time of
appointment. Diplomacy may well dictatethat more can be gained by polite requests
and patience than by the making of
demands and the setting of conditions.
However, it would normally be highly
desirable to create a written record which
would demonstrate that the powers incharge of responding to corruption were put
on notice as to what resources and powers
were necessary to its exposure andprosecution. Subsequent inquests andattempts to impose accountability, or

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RESOURCE MATERIAL SERIES No. 56
political blame, are common consequencesof corruption scandals. A written record
will protect the personal and professional
reputation of the anti-corruption executive,
who asked for but was denied adequate
tools to do a professional and successful job,
and will not enhance the reputation of thepolicymaker who rejected or ignored thoserequests.
V. PROFESSIONAL REPUTATION
Law enforcement professionals who
have dedicated a lifetime to upholding thevalues of honesty and integrity naturally
value their professional reputation andneed to be concerned about protecting theirindividual reputation and that of the anticorruption investigation unit to which they
belong. The problem of protecting those
reputations looms particularly largely inthose situations wherein it is highly
probable that a corruption inquiry will beinconclusive or unsuccessful, giving rise to
media or politically inspired accusations ofincompetence or of a cover-up.
Some types of cases, such as efforts totrace suspected international bribery
activity, may face almost certain failure,particularly after memories have or can beclaimed to have faded, records havedisappeared and defenses have been
fabricated. An anti-corruption authority
must realistically evaluate the probableinability to uncover the true facts due tothe consensual nature of bribery, thepassage of time, the often subtle ways inwhich corruption may occur, and thesophistication and resources available toshield the criminals. In such situations any
appearance of impropriety on the part of
the anti-corruption investigator isproverbially as damaging to publicconfidence as is impropriety itself.
One’s professional duty may require thatan inquiry be conducted which will be462

sensational, even though a realistic
prognosis is that a successful outcome ismost unlikely. When a high profile inquiry
is unproductive, those who are prone tobelieve in grand conspiracies and those who
can profit in a political or journalistic way
by alleging a cover-up can be expected to
do so. Consequently, the executive
directing a high risk corruption inquiry
should think defensively, documenting
requests for resources and instructions
received from political superiors. The
inquiry may need to be conducted evenmore exhaustively than may be costeffective to preclude or provide a response
to allegations of laxity or compromise. In
certain communities accusations against
investigating authorities of misconduct,abuse of position, and even insubordinationand dishonesty are a routine aspect of anticorruption inquiries. If such a
counterattack is foreseeable, it may be wise
to seek an understanding with politicalsuperiors in advance as to what procedure
will be followed in the case such allegations
are made, and who will have thecompetence to investigate theinvestigators.
VI. TARGET SELECTIONSTRATEGIES FOR AN
ANTI-CORRUPTION UNIT
To effectively counteract corruption,
information from a variety of sources
should be developed, including citizens, themedia, other criminal justice agencies, andperhaps most efficiently, honest membersof management or of the work force within
an agency whose programs or executives
are being corrupted. Yet an anti-corruption
agency can be overwhelmed by the sheer
number of complaints and the mass of data
being received from governmental auditors,
dissatisfied citizens, anonymous
allegations, news media exposes, and fromits own inquiries. Accordingly somecoherent principle or plan is called for to113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
organize an anti-corruption agency’s
application of its limited resources.
Obviously, any management strategy musttake into account political and legal
realities. If a cabinet minister has
appointed an anti-corruption authority torespond to a scandal over bribe paymentsin the granting of large military contracts,that minister is not likely to support adiversion of anti-corruption resources toinvestigate agricultural subsidy
corruption. If a country’s legal systemembodies the principle of mandatory
prosecution, then an anti-corruption unit
must mandatorily open at least a formal
inquiry for every allegation which legallyqualifies, as notification of a crime.
However, even in systems of mandatory
rather than discretionary prosecution,
choices must be made as to which matterscan be sent to the archives without action
because of a lack of an identifiable suspect,
and which cases merit investment ofi n v e s t i g a t i v e r e s o u r c e s . Va r i o u sinvestigative targeting strategies may beconsidered, including reactive strategies,
intelligence-based targeting, and a decoy
and integrity testing approach. In
American police science the last-mentioned
integrity testing approach would be called
proactive, to contrast it with reactive.
Beginning with reactive strategies,
probably the least effective long-run
approach is a practice of responding to thestimulus of a complaint or a news media
story based upon the resources available
at the moment, without any objective
selection criteria or master plan. Thisapproach may lead to frequent
reassignment of investigative resources.
Such a response allows investigative
resources to be applied in an uncontrolled
fashion depending on what seems like themost vulnerable or newsworthy target ofthe moment. This approach, which can belabeled a “default” strategy, risks theabsorption of substantial resources in cases

which are simple to solve or interesting andexciting to investigate, but which havelittle programmatic impact. Apprehension
and conviction of laborers stealing
inventory from a government storage depot
may deter some similar thefts among those
who learn of the prosecution, but probably
not as much as would sound inventory
control and security procedures.
Meanwhile, the consumption of numerous
workdays and expensive overtime paynecessary to secure evidence of such thefts
through physical surveillance may
preclude pursuit of more tedious
documentary inquiries into alleged
kickbacks on the purchasing of all
government supplies. If the level ofinventory leakage due to employee theft is
5%, whereas the typical kickback on thematerials being purchased is 10%, thedistortion of priorities is evident.
VII. TRIAGE
A more defensible and efficient reactive
strategy evaluates externally presented
referrals and complaints in order toperform some form of triage, which is a
judgment of whether to apply resources toa case depending on its potential value
according to conscious criteria articulated
in advance and consistently applied. For
obvious reasons, inquiries and complaints
from the legislative branch or arising frommass media sensationalism may be
accorded immediate attention rather thaninquiries which are still covert and not in
the public domain. Some inquiries can be
declined immediately or with minimal
action if the offender cannot be identified
without disproportionate expenditure ofresources. Other inquiries may demand
immediate action before crucial evidence
is lost, or while the offense is ongoing, suchas the investigation of the corrupt FBI
agent in New Orleans which I described in
my first paper. Wrongdoing falling on theborderline between criminal and

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administrative misconduct, such as petty
theft and cheating, can be made subject tointernal guidelines, if applicable legal
principles permit, to permit the employee’s
prompt discharge from government service
and a bar from re-employment, thereby
saving criminal investigative andprosecutorial resources for more important
cases.
Both of the above targeting strategies, adefault strategy or some form of response
based upon classifying the urgency,
severity and probability of solution, arereactive to outside stimuli. Such reactive
strategies may not achieve maximum
efficiency, but they have the negative virtueof being non-controversial. When it isapparent that an anti-corruption agency issimply responding to a public controversy
or to an official referral, it is much better
equipped to defend itself from accusationsof partisanship, bias or seeking publicity
by targeting public figures. The
disadvantages of reactive strategies derivefrom the consensual and covert nature ofcorruption. Reactive strategies are likely
to reach only the most blatant andunsophisticated forms of corruption,
thereby perpetuating the status quo,placating public opinion without reallythreatening high-level corruption.
Reactive strategies invite the cynicalconclusion that the system is designed toprotect the corrupt but powerful elite bysacrificing clumsy, petty thieves to convey
the appearance that corruption is being
controlled. These anti-democratic
consequences of reactive strategies andtheir obvious inability to ever reach wellhidden corrupt practices suggest the needto develop alternative target selection
strategies.
VIII. INTELLIGENCE BASEDTARGETING
One such alternative strategy may

464

allocate some fixed percentage of resources
to be applied in a reactive fashion against
targets of opportunity. However, its
principal focus is upon the application of asignificant percentage of investigative
resources to the collection, analysis andgeneration of criminal intelligenceidentifying targets with substantial
programmatic impact. The majority ofresources are then applied to thedevelopment of cases targeted as a resultof this intelligence gathering andevaluation process, with careful attention
being paid to the verification of intelligencesources and methods, and the developmentof new intelligence as a result of theagency’s own investigations. Using
intelligence methods to identify cases to beinvestigated may involve sophisticated,computer matching of multiple databases
or simply identifying any public officials atsocial functions hosted by a local crime or
drug boss. Review of passports,
immigration control and air travel records,
may reveal public officials who should beheld to explain the source of funds for theirexpensive foreign travel. Sources in public
accountancy firms may provide theirevaluation of the integrity and motivation
for the award of certain construction
contracts or issuance of city bond issues.
Intelligence based targeting may also focus
on the integrity risk of a program, rather
than on the conduct of an individual,
concentrating on vulnerability to abuse,
effectiveness of internal and external
controls, audit results, degree of discretion
granted to program officials, number ofcomplaints, amount of competition in themarket regulated, comparative costs, andsimilar criteria.
IX. DECOYS AND INTEGRITYTESTING
While intelligence-based targeting cannever be free from allegations of improper
motivation because its selection criteria are113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
discretionary, at least the means ofinvestigation tend to be fairly routine. Far
more controversial is a targeting strategy
which employs decoys and integrity testingtactics. The criticisms of these devices aresubstantial. They arguably express anintolerably cynical view of how the police
should operate, which damages public
respect for law enforcement. Some
societies may categorize such tactics as theimpermissible use of an agent provocateur
manufacturing imitation crime when none
really exists. It can be argued that the
weakness of human nature permits law
enforcement to target, trap and destroy
almost any political, personal or ideological
opponent which it chooses.
Notwithstanding these objections,
integrity testing devices are employedbecause law enforcement executives knowthat hidden corruption can continue
indefinitely unless exposed, and that noother technique is as cost-effective in
penetrating bribery and other secretabuses of office. Allow me here to introduce
a case study about a corruption inquiry
which was a very controversial event in the
United States of America when it occurred
and which still provokes widely different
reactions among audiences. This casestudy involves what was called the
ABSCAM investigation in the UnitedStates in the 1ate 1970s. This inquiry
began with an FBI undercover operation
utilizing a cooperating witness with a long
criminal record. The cover story was thata business representing Arab royalty
sought opportunities to invest some of thefabulous wealth accumulated during thethen-recent oil shortage and embargo by
the Organization of Petroleum ExportingCountries. The FBI’s internal code namefor the case, which eventually became know
to the public, was ABSCAM, a combinationof the notional business front for theinvestments, called ABDUL Enterprises,
and the word “scam” meaning trick.

It was planned that the operation would
use the cooperating criminal’s underworld
associations to purchase stolen artworks
and securities, and ultimately to baseprosecutions on evidence gathered during
the operation. These goals were soonachieved, and in the process, thecooperating witness and later anundercover FBI agent, were introduced tothe mayor of a New Jersey city, who offered
to arrange the payment of a $100,000 bribeto the Vice-Chairman of the New Jersey
State Gambling Commission to influence
the issuance of a gambling casino license.
As the corrupt mayor and his associates
spent time socializing with the undercover
FBI agent, they talked about other mattersconsistent with the undercover scenario
involving wealthy Middle Easterninvestors. One topic was the desire of themythical Arab sheik to guarantee that hewould be allowed to immigrate to theUnited States if a revolution occurred in
his country. Since immigration is within
the competence of our national or federal
government, the corrupt mayor offered to
introduce the undercover team to friends
who were members of the United States
Congress and who would accept bribes toensure that a law was passed to allow the
Sheik to reside in the United States.
The corrupt mayor suggested a $100,000
payment to guarantee that one
Congressman would introduce legislation
to admit the Sheik to the United States,on the grounds that such private bills wereusually passed without controversy. The
undercover agent refused to pay more than
$50,000, arguing that the help of several
Congressmen might prove necessary. In
one day a Member of our House ofRepresentatives was videotaped personallyaccepting $50,000 and filling his pockets
with the currency after agreeing to
introduce the legislation, and a US Senator
was recorded promising to help with thelegislation in the Senate in exchange for a

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20% concealed interest in mining
corporations for which he promised to help
secure government contracts. As theinvestigations progressed other Membersof Congress took bribes in a brown paperbag, in briefcases, in person and throughintermediaries, all in exchange forpromising to support legislation to allow
the Sheik to immigrate into our country.
When the investigation became public
in 1980 the publicity was enormous.
Prosecutions and convictions of a UnitedStates Senator and six Members of theHouse of Representatives, and numerous
local officials, lawyers and businessmen
followed. At the same time, both houses of
our Congress conducted hearings tocritique the propriety of the investigation.
It may be stimulating to discuss some of
the issues debated during those
Congressional hearings.
A. Were Innocent Persons
Entrapped?
There is no juridical difference between
the way an American judge and jury decide
the guilt of a trafficker who sells drugs toan undercover agent for money and a
Congressman who sells a promise tosupport legislation for money. In both cases
the common law legal tradition permits apossible defense of entrapment. The jurors
are instructed by the judge that they should
absolve the accused if they believe that hehad no predisposition, intent or willingness
to commit the crime and was entrapped
into doing so by government persuasion.
Despite strenuous efforts to find any
possible vulnerability in the ABSCAM
operation, neither the Senate nor theHouse of Representatives committees
claimed that the accused officials were
innocents lured into the perpetration ofcrimes which they had no predisposition
to commit. Such a claim would have lacked
public credibility because the crucial
encounters were all recorded, and almost

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all were videotaped. The videotapes
showed the greed of the accusedcongressmen, stuffing envelopes in theirpockets and grabbing at bags or briefcases
full of money, and boasting that in deciding
how to vote they listen to money, not words.
B. Is Integrity Testing a Law
Enforcement Technique Which
Should be Used Against Elected
Representatives?
The dangers of allowing the executive
branch of government to tempt legislators
are obvious. The moral independence ofindividual legislators and the institutional
independence of the legislative branch are
at risk when their integrity is tested, as
we are all imperfect human beings subjectt o t e m p t a t i o n . F o r t u n a t e l y, t h e
Congressional hearings on the ABSCAM
operation established a complete absenceof political targeting, and in fact all of the
defendants were from the party in powerat the time.
Moreover, those same hearings revealed
that ABSCAM was not a moral crusadeagainst corruption in Congress. None ofthe persons responsible for the operation
would have disputed the principle that itis the electorate, the voters, and not
criminal justice authorities who areprimarily responsible for the moral caliberof our elected representatives. The original
intent of the operation was to recover stolen
property. When a demonstrably corrupt
local mayor offered to arrange bribes toMembers of our Congress, the offer was
accepted because none of the investigativeor prosecutorial executives involved could
suggest any persuasive reason why weshould use the operation to buy illegallypossessed artwork and securities but not
to buy illegally promised votes. We
Americans are an intensely pragmatic
people. Public opinion was greatly
impressed by the very high percentage ofelected officials who came into contact with

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
ABSCAM who were willing to promise
their votes for money. During theCongressional hearings an argument took
place over whether 80% or only 63% of theelected representatives accepted illegal
payments. The calculation depended on
how one counted persons who died before
prosecution or were convicted for otheroffenses. The argument ended when oneof our prosecutors reminded the Senatorialcommittee that either percentage
suggested that the operation was amply
justified. With the issue phrased in that
context, and with public opinion solidly infavor of the numerous prosecutions andconvictions, our Congress shifted its focus
from whether undercover tactics could be
used in investigations of elected
representatives to examine what
appropriate controls should be in place.
C. What are the Appropriate
Controls for UndercoverOperations Testing the Integrityof Elected Representatives?
Our House of Representatives proposeda change in federal law to require that all
future undercover operations should
require judicial authorization, but no such
legislation was ever enacted, primarily
because our citizens felt that Senators andRepresentatives should accept the risk ofwalking into a meeting and being offered abribe for a vote, since they could and should
refuse the offer, and could even go so far as
to report it to the proper authorities.
F r a n k l y, o u r i n v e s t i g a t i v e a n dprosecutorial authorities were much moreconservative than the public in their viewof what kind of testing was allowable. The
Director of the FBI and the prosecutors at
the politically appointed policy level of the
Department of Justice applied controls to
avoid random integrity testing, and to offer
bribes only to a selected group of persons
to whom there was founded suspicion of acorrupt predisposition to accept an illegal

payment. The standard for authorizing ameeting with an elected official was thatan intermediary with proven criminal
credentials had represented that the intent
of the public official in attending themeeting was to seek a bribe. Once a
meeting took place, no bribe could beoffered until recorded preliminary
discussions confirmed the elected
representative’s awareness that an illegaltransaction was to be discussed. These
precautions had the desired effect of
persuading public opinion and responsible
Members of Congress that the defense ofentrapment and the internal law
enforcement for undercover operations
adequately safeguarded legislative
independence.
D. Did the ABSCAM Experience
Establish a New Regime in Which
Investigative Authorities Now
Use Integrity Testing at Will
Against Elected Officials?
Despite the numerous convictions
resulting from ABSCAM, all upheld on
appeal, and the reluctance of our Congress
to risk voter displeasure by limiting
undercover operations or integrity testing
techniques, no operation of similar scope
has taken place since 1980. When I lastresearched the issue several years ago, only
one additional conviction of a Congressman
and one of a federal judge had resulted fromdecoy or undercover tactics, although it is
now used routinely against elected andappointed officials in state and local
governments.
If the ABSCAM operation were such astatistical success, if its convictions wereaffirmed against all legal challenges, and
if Congress did not pass legislation limiting
law enforcement powers as a result, one
may ask why it has not been repeated. My
opinion, which is strictly personal and does
not reflect any official position or analysis,is that various factors are at work. One

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could be called the scorpion factor. For law
enforcement authorities, initiating another
ABSCAM project would be like a scorpion
entering a bottle with a stronger and morepoisonous scorpion. If the weaker strikes
the stronger, the weaker will suffer serious
injury or worse, with no means of escape.
The Congressional reaction after ABSCAM
teaches that if law enforcement authorities
were to again test the integrity of ourCongress, multiple convictions might result
but restrictive legislation would be almost
inevitable.
Other factors also discourage therepetition of an ABSCAM operation. One
is recognition of the sensational manner inwhich the news/entertainment media treat
criminal investigations. One of the painful
aspects of the ABSCAM investigation wasthat it was terminated after an innocent
Senator was introduced to the undercoveragent by an intermediary whomisrepresented that the Senator wished to
trade his vote for money. No bribe was evereven discussed, because the undercoveragent realized that the Senator thought hewas there to receive a legitimate campaign
contribution. This probably occurredbecause the criminal intermediaries had
exhausted their contacts with corrupt officeholders whom they knew were eager forbribes and arranged a speculative meetingin the hope of receiving a percentage if the
Senator were offered a bribe and decided
to accept it. Whatever the reason for the
event, the result was painful and terribly
unfair. Because of the mass media
coverage when the investigation became
overt, the Senator suffered damage to his
reputation. Law enforcement executives
with a sense of public responsibility cannot
pretend to be blind to such realities. The
consequence is that the number and scopeof undercover operations must be severely
restricted to eliminate any involvementwith innocent persons whose reputations
might be unfairly ruined by such contact.

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There may also be a fear that integrity
testing is simply too effective a technique.
We know the ABSCAM percentage of 63%
to 80% is not statistically representativeof the Members of Congress willing topromise their votes for money, because
strenuous efforts were made to deal onlywith a preselected, corrupt population.
However, our society may not want its law
enforcement agencies to determine exactly
what percentage of our elected
representatives would be willing to takeillegal payments under the constantpressure of political fundraising andcampaigning. It may be that in ABSCAM
we looked into the abyss and were
frightened by what we saw, and that oursociety will not willingly approach the edgeof that abyss soon again.