In this chapter, I revisit the themes articulated in my classic anthology, Crimes by the Capitalist State: An Introduction to State Criminality (1991). CBCS was the first book devoted entirely to the study of state crime, to call for the development of a criminology of the state, and to present several case studies of state crimes from North America, Latin America, Europe, and Down Under. Some of the state crimes covered in this early volume included but were not limited to aboriginal deaths in custody, multi-tiered terrorism, air piracy, contract policing, and sexual assault. Since that time, I would argue that while the criminological study of state crimes has matured significantly, its influence as a subfield or specialty has thus far remained marginal to the discipline of criminology as measured globally by its lack of success to become a core component of university curriculums and to engage a sizable number or percentage of criminologists devoted to researching this subject matter as an area of expertise. Given the enormity of state criminality around the globe today, these contradictory relations are reflective of the dialectics of law, power, and the social construction of crime and justice.

At the beginning of our return to CBCS it is worth noting that this book was not made available as part of an edited series within criminology. Rather, it was published by the State University of New York Press as a volume in their Series in Radical Social and Political Theory, edited by Roger S. Gottlieb, Professor of Philosophy at the Worchester Polytechnic Institute. It is also worth noting that the blurb on the back of the book from Tony Platt called attention to the “comparative/international perspective” of CBCS as evidenced by the mix of contributors to this work. These included three Canadians (political scientist Stuart Farson and sociologists Ronald Hinch and R. S. Ratner), two criminological transplants to the United States one from Britain (Stuart Henry) and one from the West Indies (Daniel E. Georges-Abeyie), one Australian criminologist (Kayleen Hazlehurst), one practicing criminal attorney from Cali, Columbia (Jose Maria Borrero), three American born and trained criminologists (Susan Caulfield, Mark Hamm, and myself), one USA born and Scottish trained criminologist (Christina Johns), and one American sociologist (John Wildeman).

Back in the eighties and early nineties, I did not assume that capitalist states had a monopoly over state crimes. The title of the book was primarily descriptive and politically-economically correct since there were no socialist states examined. It reflected the reality that whether the state crimes we examined were committed by the United States, Canada, Peru, Israel, or Australia, each of these nation-states expressively and instrumentally represented capitalist state formations as differentiated, for example, from criminal or police state formations steeped in the interstices of the larger global political economy of corruption, like some of those failed states found in contemporary post-colonial Africa (Mullins and Rothe 2008). As underscored in the Preface to CBCS:

the nature, patterns, or seriousness of state crime will not necessarily

be the same for all types of state formation. In fact, a structural and

dialectical analysis of state criminality, such as the one presented

here, would predict that crimes by the state would vary according to

the changing interaction between a particular state formation and the

developing political economy. It is assumed that a fully developed

criminology of state criminality would have to incorporate the full

array of state crimes committed by the varying kinds of state

formations (Barak 1991: x).

In the rest of this review essay that also loosely assesses the evolution of the state of the study of state criminality and the development of the subfield of state crime in the comparative world of criminological theory and practice as a whole, I specifically revisit the themes identified in the Prologue: Toward a Criminology of State Criminality, in the three substantive parts of the book-- Classical Forms of State Crime, On the Dialectical Nature of State Crimes, and Crimes of State Omission-- and in the Epilogue: Resisting State Criminality and the Struggle for Justice. In these five sections, I identify the key ideas or concepts that were articulated back in the day when the systematic study of state criminality was first emerging. In the process of this review, I also speak to the continued relevancy of these matters and offer an interpretation of where some of these state crimes have proceeded to and are situated in early 2009.

TOWARD A CRIMINOLOGY OF STATE CRIMINOLOGY

            The prologue to CBCS set out to do three things: First, to differentiate between conventional offenses typically defined as crimes against the state including those acts committed in the street or in the suite from those “traditionally overlooked or downplayed” offenses typically defined as crimes by the state including those acts/ actions or inactions/omissions “committed by government agencies or caused by public policies” whose groupings of victims suffer harm as a result of “social, political, and economic injustice,” “racial, sexual, and cultural discrimination,” and “abuse of political and/or economic power” (Barak 1991: 3-4). Second, to establish the need for a criminology of states and to link the study of “state criminality (both domestic and international)” to “the fundamental and irreconcilable conflict between empire and social justice” and to the then historical reality that “although students of comparative crime and criminal justice [had] paid some attention to political crimes committed against the state” in the past and present, “they [had] seriously neglected the political crimes committed by the state” (Barak 1991: 6). Third, to identify the roles that state criminality play in creating “inherent contradictions which simultaneously threaten the legitimacy of the prevailing political order yet accommodate the very same behavior in the name of common interests or national security” (Barak 1991: 7).

            Some twenty years later, I do believe that the subfield or specialty area of state crime has achieved a small place at the criminological table. And, while it may be that criminologists of state criminality no longer have to make a case for the study of state crimes, it is still accurate to say that the majority of criminology textbooks as well as the core curriculum in our criminology and criminal justice programs have not appreciated the need to adopt, incorporate, and spread the study of state criminality. State criminality still remains marginal to the study of criminology as a whole, even though these acts or omissions have become pivotal to some strands of critical criminology. For example, just as CBCS at the time of its publication was “compatible with the philosophies and practices of the emerging schools of “new left realism” and “peacemaking criminology” (Barak 1991: 11), today I would argue that the study of state crimes represents a reciprocally integrated approach of the realist and peacemaking criminologies gone global.

Similarly, beyond the narrow boundaries of the conventional disciplinary and state criminologies are the frontiers of the broader studies of globalism and world justice, which bring together activists and theorists from a vast multidisciplinary community. In this regard, it makes sense for criminologists of state criminality to network with the myriad of worldwide ecological movements in general and with the various international human rights and/or anti-genocidal campaigns, the conflict resolution and positive peacemaking interventions, and the up-and-coming criminology of international crimes or “supranational criminology” (Smeulers and Haveman 2008) as well as with the emerging paradigm of “global criminology” (Morrison 2006) in particular. Herein lies the newest criminology to date where the study and reduction of state crimes is central to the transnational project of building an integrated global order of peace, security, and sustainable growth (Barak 2009).

Since the end of the Cold War and the breakup of the former USSR, the number of state crimes has picked up momentum worldwide to where there is now a plethora of state crimes being committed annually (Barak 2000). These trends in the expanding cases of state crimes globally, domestically and internationally, no longer require that criminologists, critical or mainstream, make the argument for the study of state criminality. Paralleling these developments, I would argue that the criminological journey establishing a criminality of states has also come a long way in a relatively short time. For example, the study of state crimes in general and of terrorism or of genocide in particular has not only overcome criminology’s historical “tendency to treat political violence and state criminality one-dimensionally” (Barak 1991: 8), but also during the same time period, these examinations have become far more empirical and theoretically grounded compared to those studies that dominated the field some twenty to forty years earlier (Ross 1988).

Finally, consistent with the thrust and trajectory of CBCS, today’s study of state crimes typically examines the intersections of state sovereignty, domestic and international legalisms, and the need to transcend those studies of individual offenders and their punishments divorced from the “structural and organizational nature of governmental abuse.” Careful attention has also been “given to the relationship between the changing global political economy and the reproduction of class and social injustice worldwide” (Barak 1991: 12). These developments in the study of state criminality reflect favorably on the maturation of this subfield of criminology.

CLASSICAL FORMS OF STATE CRIMES

            The two case studies presented in CBCS to illustrate expressions of what could be labeled “classical forms” of state crimes resonates throughout history and are every bit as relevant today. In “Passion and Policy: Aboriginal Deaths in Custody in Australia (1980-1989),” Hazlehurst examined the relationship between the crimes against and by the Aboriginal peoples. She specifically examined the role of the state and the governmental agencies of law enforcement, adjudication, and incarceration in the oppression of that nation’s indigenous people. Situated historically and in a neocolonial context, Hazlehurst described the events, activities, and protests that led to establishing the Royal Commission into Aboriginal Deaths in Custody.

She also critiqued the commission’s findings and how the inquiry actually obscured the fact that far too many Aboriginals were imprisoned unnecessarily. Moreover, since Australia was a cosignatory nation to the International Covenant on Civil and Political Rights, Hazlehurst defined the treatment of the aboriginal peoples within the larger context of international human rights as well as in relation to racism, genocide, and psychological state terrorism. She utilized evidence from national and international inquiries supporting the claims that aboriginal people were “dying prematurely from ill health, imprisonment, despair and defeat.” Finally, Hazlehurst raised the pertinent question of whether or not the domestic situation (e.g., acts of repression and neglect by state authorities) in Australia warranted international intervention. Explicitly, she underscored the daily “intervention by police, abuse and neglect of community needs, cruel and degrading treatment of aboriginal prisoners, intimidation of witnesses to national inquiries, and unashamed attempts by state agencies to terminate the Royal Commission into Aboriginal Deaths in Custody” (Hazlehurst 1991: 19).

In “Subcultures as Crime: The Theft of Legitimacy of Dissent in the United States,” Caulfield tapped into the classical role of the state generating politically subversive or criminal subcultures. At the same time, she captured “the dialectical processes involved in state activities which create criminals by violating rather than protecting citizen’s fundamental rights as guaranteed in the Constitution and other laws” (Caulfield 1991: 20). Caulfield focused her attention on the state’s interaction with two political groups, the Co Madres of El Salvador and the Committee in Solidarity with the People of El Salvador.

In a theoretically informed discussion of subcultural formation, Caulfield examined the relationship between First Amendment dissent and being subjected to government harassment, break-ins, illegal monitoring, and so forth. She also explained the classic ways in which the “state-created illusion of legitimate intervention (stopping crime)” provided “a cover for the political criminality of state agents.” Finally, she argued that the state’s use of this “subcultural methodology” resulted in vast and serious harms. These ranged from “the theft of basic constitutional rights to the infliction of monetary hardship on U.S. citizens, and monetary and physical hardship, including death, on citizens in Central America and elsewhere” (Caulfield 1991: 20).

Each of these classical case studies in state criminality certainly resonates with many state crimes found throughout history. Today, the relevance of the treatment of indigenous persons in Australia still reverberates with the treatment of indigenous and/or ethnic others in both developing and developed nation-states. In the case of Caulfield’s trenchant analysis of dissent and its relation to the dialectics of law enforcement, nothing rings more true post 9/11 than the myriad of violations perpetrated by the Executive and Legislative branches of the United States government.

For purposes of brevity, I refer specifically to the torturing of non-citizens by state agents or in the case of extraordinary renditions, by U.S. proxies, and to spying on our own citizenry courtesy of the surveillance-industrial complex, all in the name of Homeland Security. The problem with prosecuting these state crimes, of course, is made all the more difficult because of the Bush administration’s repetitive and systemic twisting of “the law to immunize its criminal conduct” aided by the authorization of “executive branch lawyers, particularly in the Justice Department’s Office of Legal Counsel” who have provided a strong defense for governmental perpetrators vis-à-vis legal memorandums, not to mention the Congressional granting of legal immunity to potential defendants through the passage of the Military Commissions Act of 2006 and other statutes (Balkin 2009: WK 11). In the last section of this essay, I will return to these crimes of state and to what I think should occur both in light of what we know about these activities and in terms of what we have learned about the more general efficacies of the various legal responses that have been brought to bear on state violations of national and international law.

ON THE DIALECTICAL NATURE OF STATE CRIMES

            The four case studies in this section of CBCS covered the selective repression of illegalities and various legal and human rights abuses committed during the 1980s. Primarily, these state crimes were enacted by the nation-states of Columbia, Israel, Peru, and the United States in association with their overlapping ideological wars against communism, drugs, terrorism, and revolutionary liberation movements. Situated within both the historical, dialectical, and ongoing struggles between neoliberal capitalist crime control and global policies of social justice, on the one hand, and the interdependent developing relations between democratic and authoritarian regimes, on the other hand, each of these contributions—“The War on Drugs: Nothing Succeeds Like Failure” by Johns and Borrero, “Multi-Tiered Terrorism in Peru” by Ratner, “Piracy, Air Piracy, and Recurrent U.S. and Israeli Civilian Aircraft Interceptions” by Georges-Abeyie, and “The Abandoned Ones: A History of the Oakdale and Atlanta Prison Riots” by Hamm—sought to describe and examine the contradictory nature of these state crimes from the perspectives of evolving national and/or international law.

Furthermore, each of these case studies, among other things, depicted the ways in which the manufacturing of fear and state intervention into these areas of crime control and security often caused disproportionate harm and victimization against both real and alleged violators. For example, in the case of “the abandoned ones,” Hamm not only exposed the creation by the mainstream U.S. media of an untrue picture of alleged human rights abuses in the “Cuban Gulag,” but he also demystified the extent of the dangerousness of the Cuban detainees as it turned out that less than one-half of one percent of the entire Freedom Flotilla was found to have serious criminal backgrounds. The same could be said of the ongoing counter-productive war on drugs at home and in Central America. As Johns and Borrero (1991: 65) concluded in “nothing succeeds like failure,” although decriminalization is a much more rational and less costly approach to the abuse of illegal drugs than a criminal approach is, the “battles are likely to go on and on, escalating the attendant crime and violence and increasing the exploitation and control of the periphery by the center. The war on drugs is, simply put, too useful a legitimation of state crime to abandon.”

These violations of domestic and international law also included those state crimes specifically involving counter-terrorist or counter-narcotics scenarios of law and order. Whether exploring the vagaries of the war on drugs in the USA and Columbia, the multi-tiered terrorism in Peru and the programs in counter-insurgency and counter-narcotics control, the recurrent civilian aircraft “piracy” interceptions by U.S. and Israeli uniformed personnel, or the lack of access to due process for the Mariel Cubans who had committed no crimes but were being held captives in two U.S. prisons, the subcultural and semantic methodologies used to define these “dangerous classes” afforded the state opportunities to violate its own sovereign laws as well as other international laws. These actions also resulted in the passage of new domestic laws that were often in violation of their own Constitutions as well as other universal covenants and treaties.

For example, the Constitutional Court of Peru in 2004 declared some parts of the counterterrorism law passed in June of 2002 by the Peruvian Congress and enacted by President Fujimori unconstitutional and therefore, void, as these antiterrorist sections were viewed as contrary to international human rights (Privacy International 2004). The contradictions in “state crime control” and the multi-tiered terrorism that Ratner described in CBCS have continued to be political and warring forces in contemporary Peru. Specifically, the developing wars on the anti-government guerillas and the wars on the narcotic trafficking in cocaine and more recently heroin as well as the resistance to the various practices of state terrorism in Peru, were also given a shot in the arm in 2002, thanks in part to the George W. Bush administration’s escalation of both the war on terrorism (e.g., the resurgence of the “Shining Path” [Sendero Luminoso] guerrilla terrorists whose goals under the earlier leadership of Abimael Guzman were to achieve a “peasants-workers republic”) and the war on drugs (e.g., tripling U.S. anti-drug aid in Peru to $150 million annually).

            During the 1980s and beyond as Ratner described in his chapter, Peru fought a bloody and brutal war against the Shining Path guerrillas, with some 30,000 Peruvians killed by one side or the other. In “the midst of a government-corruption scandal uncovering decades of misdeeds by some of the U.S. government’s closest drug-war partners—including bribery, drug running, arms dealing, and death squads,” this “war culminated in the 1990s during the early days of the Presidency of Alberto Fujimori, when thousands of suspected Shining Path were captured” with the assistance of the CIA (Kopel and Krause 2002: 1). Subsequently, a review commission released more than 600 of some 3900 persons who were convicted of terrorism in secret courts. At the same time, the victory over the Shining Path was accompanied by the destruction of Peru’s constitutional democracy, when Fujimori in 1992 “launched a coup, dissolved the courts and Congress, erased constitutional protections, and instituted military tribunals”(Ibid: 1).

In the mid nineties, the U.S. State Department’s report on Peruvian human rights violations explained:

the military and the police continue to be responsible for

numerous extra-judicial killings, arbitrary detentions, torture,

rape and disappearances… Besides beatings, common methods

of torture include electric shock, water torture and asphyxiation…

credible reports indicate the total number of female detainees

raped in the past few years (by police and military forces) to be

in the hundreds…Violence against women and children…. are

continuing problems (Quoted in Kopel and Krause 2002: 2).

Keeping in mind that half the population of Peru lives in abject poverty, many farmers who had turned to cultivating coca for international consumption in the 1970s and 1980s were also early in this century starting to grow poppies as part of an expanded networking between the Peruvian and Columbian drug trade.

            Historically, it is interesting that both Bush presidencies simultaneously emphasized the war on drugs and the war on terrorism. These dual war strategies have consistently undermined each other or both of these wars in Peru. During each of the Bush administrations Peru tried to prioritize counter-insurgency over counter-narcotics, leaving coca farmers unhindered, even promoting a coca-growers cooperative to the dismay of the USA. In the case of Bush I, the Peruvian military had conducted more than 300 offenses against the Shining Path and had killed more than 700 guerillas. However, U.S. officials at the time were “concerned that General Alberto Arciniega had not done enough to fight coca cultivation,” and they “pressed the Peruvian government for his transfer,” in the process weakening the war against terrorism there (Kopel and Krause 2002: 2).

Beginning with Bush I, continuing with Clinton, and more recently with Bush II, the combined wars against terrorists and against drug farmer-producers and narco-distributors not only helped to drive up the price and make coca production a thriving and highly profitable business, but it also brought together narco-traffickers, guerilla terrorists, and coca and poppy farmers whose combined interests have done much to resist and compromise the programs of eradication and interdiction. In a nutshell, the dual wars on terrorism and drugs had virtually guaranteed income for narco-traffickers and the terrorists who taxed the drug cultivation and protected the farmers from income fumigation. According to unclassified documents, Washington was also aware that some of their go to guys on these wars might be working both sides of the street as narco-traffickers and supporters of the death squads (Kopel and Krause 2002).

For example, throughout the 1990s the CIA was working with a retired Chief of the Armed Forces Joint Command, General Nicolas Hermoza, who plead guilty to profiting from illegal arms deals and who had been charged with running a drug-flight protection racket. During the same period, the CIA had given $10 million to Vladimiro Montesinos, the de facto head of the Peruvian National Intelligence Service and Director of the Narcotics Intelligence Division. By 2002, Montesinos was residing in a Lima jail cell “charged with over 80 crimes ranging from money laundering, organizing death squads, protecting drug traffickers, and illegal-arms trafficking (selling ten thousand AK 47s to the Columbian FARC terrorists” (Kopel and Krause 2002: 4). At the time, in excess of $200 million of Montesinos’ illicit fortune had been tracked down and seized, including over $50 million in U.S. Banks.

CRIMES OF STATE OMISSION

I would suggest that state crimes of omission have been and still are more diverse and less developed comparatively than are the state crimes of commission. Conceptually, crimes of state omission encompass the failures to protect the rights and to serve the needs of all persons subject primarily (but not exclusively) to the territory of a particular nation-state. The four contributions to this section of CBCS presented analyses of various kinds of state omissions that threatened the well being of vulnerable populations and that harmed both innocent and not innocent persons. Two of these case studies were focused on “policing,” the first on the roles, abuses, and reforms of law enforcement intelligence agencies; the second on the roles, abuses, and circumventions of law enforcement norms by way of privatization and contract policing. The third contribution examined the development and changing nature of sexual assault laws. The final contribution examined the “free market” economy and its relationship to particular forms of street criminality.

In “Old Wine, New Bottles, and Fancy Labels: The Rediscovery of Organizational Culture in the Control of Intelligence,” Farson examined the overlapping worlds of organizational culture, deviance, and reform. Specifically, he analyzed the McDonald Commission of Inquiry into the wrongdoing of the Royal Canadian Mounted Police. He also re-examined past and present legislative reform efforts to alter the criminal behavior of the RMCP and its Security Service in the context of new laws, organizational structures, and control mechanisms. Although Farson believed that lessons had been learned and that, for example, strategic as opposed to case-by-case approaches to intelligence gathering could “not only increase organizational efficacy in dealing with security, but may also reduce the abuse of civil liberties of particular individuals and groups by eliminating them from the targeting decision agenda,” he still concluded that despite the establishment of new mechanisms for ensuring political knowledge and accountability which were put in place, “the control of wrongdoing has remained ever elusive” (Farson 1991: 183).

In the contribution from the late John Wildeman, “When the State Fails: A Critical Assessment of Contract Policing in the United States,” he provided an overview of the historical and contemporary developments in the growth and practice of contract policing with an eye toward examining both the legal abuses and legal circumstances associated with the privatization of many of the law enforcement functions of the state. Specifically questioned by Wildeman (1991: 219) was whether or not these developments represented “a decline in the state’s responsibility and effort to protect civil rights and liberties of its citizens.” He concluded, “the exponential growth in contract policing has been accompanied by a diminution of civil liberties and rights such as privacy, confidentiality, and due process as well as by a vast and largely unrecognized increase of power of the capitalist state” (Ibid: 183).

In “Contradictions, Conflicts, and Dilemmas in Canada’s Sexual Assault Law,” Hinch (1991: 184) argued that although the state created the impression with Bill C-127 that it had found a compromise between feminist and patriarchial interests in the prosecution of Canadian rape cases, the fact remained that the compromise did “little to alter the patriarchial or class nature of either the law itself or of the law enforcement.” Specifically, with respect to the actual changes in the sexual assault laws, he pointed out that contradictory clauses or sections, in effect, cancelled each other out in the four areas examined. These included the abolition of the exemption from prosecution granted married men, the abolition of the penetration requirement, the definitions of sexual assault, and the admissibility of evidence on reputation. In his analysis, Hinch (Ibid.) also provided an examination of the “feminist criticism of the old law and the state’s response to that criticism” as well as an assessment of “the ways in which the state’s response can be shown to be protective of patriarchial and class interests.”

In the final contribution to CBCS, “The Informal Economy: A Crime of Omission by the State, “ Henry examined the relationship between a “free market” economy and various forms of street criminality. He argued specifically that “some people’s participation in informal economic activity can be traced to governmental policies, and therefore, such state-organized activities can be held co-responsible for their crimes” (Henry 1991: 184). Henry (Ibid.) reasoned, “by excluding some people from a legitimate share of the wealth they create, governments force marginalized sections of the population to participate in informal economies wherein some people are introduced to opportunities for criminal activity which harms both themselves and others.” He ultimately concluded because government policy could be developed so as not to force some economic activity underground, failure to do so may be construed as a crime of omission by the state.

Consistent with all of the contributions to CBCS, Henry’s analysis implied that confronting and reducing state criminality in general, but especially crimes of state omission, would have the spin-off effect of reducing other forms of crime because of the inherently criminogenic nature of state crime.

RESISTING STATE CRIMINAILTY AND THE STRUGGLE FOR JUSTICE

            The epilogue to CBCS was primarily concerned with resisting state criminality and struggling for social justice. At least part of that struggle, both then and now, seems to be the need for the fields of criminology as a whole to stop marginalizing at best and ignoring at worst state criminality. Moreover, the same questions remain twenty years later as I asked backed in 1991: “How and why have criminologists let such oftentimes horrendous behavior on the part of states escape their attention and inquiry?” Of course the answer to this question has partially to do with the political nature of state criminality and to the lack of concern of states to its own or other states’ criminality.

More fundamentally, as Pat O’Malley (1987: 79) explained in “Marxist Theory and Marxist Criminology,” crimes by and against the modern state are merely the expressions of specific historic conditions, “variably present and having variable effects” subject to the “historical continuities and discontinuities in capitalist production and accumulation.” In this sense, acts committed and omitted by, on behalf of, or, of the state have usually become repressive means directed at the real and imagined enemies of a given state and its associated relations to the prevailing political and economic arrangements. As some of the indented excerpts from the epilogue, which follow exemplify, these passages are just as relevant today when it comes to explaining the crimes of the capitalist US state in its post 9/11 war on terrorism as they were when used to explain, justify, or deny the state crimes committed in the name of anticommunism or socialist revolution back when CBCS was being published (Barak 1991: 275-277):

With respect to the United States’ capitalist state power,

former case officer and agent for the CIA Phillip Agee

(1988: 8) has concluded that the covert and overt activities,

for example, of his former organization’s role in the political

oppression and denial of fundamental human rights in

developing nations (especially in Latin America) have always

had the primary objective of maintaining “long-range control

of the natural resources, the labor, and the markets of other

countries.” Allegedly, however, this type of intervention was

engaged in for the purposes of making the world freely

democratic and anticommunist. In the anticommunist political

culture of the West, “any popular revolutionary movement

that seeks revolutionary change or fundamental radical

change in favor of the worker” is equally threatening to

the capitalist state (Agee 1988: 9).

… Hence, the actions taken by the CIA and the local

oligarchies (e.g.,, banking and commercial interests) in

Latin America against Juan Bosch in the Dominican

Republic or Salvador Allende in Chile—and against the

vast majority of rural peasants or of marginalized urban

workers—were rationalized through the emotional and

political rhetoric of anticommunism used to justify

subversive operations abroad. “They are subversive in

the sense that from the very beginning, the CIA has used

money and control of the people to seek control over the

so-called free, pluralistic, democratic institutions of other

countries” (Agee 1988: 6).

…state-supported terrorism of the kind waged by the U.S.

trained Contras in Nicaragua has also resulted in fifty

thousand wounded and twenty thousand dead Nicaraguans

in less than ten years. But these expressions of state criminality

are not limited to the torturing and murder of political enemies;

they also include the crimes against self-determination committed

by trade policies, for example, that assert adverse economic

pressures on political parties, the church, and the press, or by

waging disinformation campaigns inside and outside these

Third World countries. As former Contra pubic relations person

Edgar Chamorro has noted about the actions and consequences

of various disinformation campaigns aimed at the people of Nicaragua:

“Our psychological wars [were] very cleverly oriented to use people

or to lie and they [were] very cruel to the recipient. Because

there is cruelty not only in rapes, or in assassinations, but also in

destruction of the economy, in making people suffer for lack of full

electricity and water (Chamorro 1988: 24).

…. With respect to the more general economic, political, and

social development of countries and peoples of Asia, Africa, and

Latin America, the role of the U.S. intervention through its foreign

policy has certainly been a deterrent to the materialization of the

rights of Third World people, at least since 1945. And…"it is

unfortunately the United States of all governments in the West that

has most consistently opposed the realization of the right of self-

determination by the peoples of the Third World and is, therefore,

portrayed as an implacable foe of the rights of people” (Falk 1989:

60). The record of the United States, for example, “when it comes

to the ratification of the major multilateral human rights instruments

has one of the very worst…among all of the so-called Western

liberal democracies” (Boyle 1989: 71) {including the contemporary

failure of the USA to have recognized and endorsed the International

Criminal Court}.

The arguments implicitly and explicitly developed

throughout this book suggest that the reduction of wholesale

as opposed to retail forms of state criminality would have a

far greater impact on the levels of violence and suffering

worldwide—especially since the former are often criminogenic

of the latter. Our nontraditional arguments about the legal and

non-legal relationships of the crimes by state omission are

particularly salient here. Take, for example, the “crime of

homelessness” which results in both crimes by and against

homeless people (Barak and Bohm 1989). This crime of

omission by an advanced, post-industrialized, capitalist state

consists of laws that do not guarantee and policies that do not

provide permanently affordable housing for all residents. The

fact that the current social relations of bourgeois legality do not

directly, or even remotely, recognize permanent housing as a

fundamental human right does not preclude either the struggle

for or the eventual development of such a de jure or de facto

right. In other words, human rights exist in both theory and

practice, and as such they may be viewed as part and parcel

of the historical development in the ever-evolving status of the

collective rights of all human beings (Felice 1989).

        Seems like we are in pretty much the same boat today as we were twenty years ago when the systematic study of state crime first emerged. Just as the ten contributions to CBCS are as spot on today as they were two decades ago, so is the same fundamental question that I posed back in 1991: “How do citizens of a given state and peoples from multiple states intervene into the various state apparatuses of the world for the purposes of controlling both the crimes and the criminogenic nature of state power?” Since those days, two positive incremental changes have occurred. First, thanks to globalization there are measurably more pathways to the examination and resistance of state criminality and there are more globally oriented movements on behalf of human rights and social justice than there were some twenty years ago. Second, the fields of state criminality thanks to some of the contributors to this anthology, such as Dave Kauzlarich, Ron Kramer, Ray Michalowski, Chris Mullins, and Dawn Rothe have developed an overlapping body of integrated theories of state-organized and state-corporate crimes.1 These theoretically informed and reciprocally formulated models are, indeed, capable of providing improved explanatory models for many of the case studies found in CBCS and for state crimes more generally.

        Some twenty years ago when CBCS was in a state of becoming, the United States government was busy sweeping the state crimes (e.g., Iran-Contragate and the illegal bombings of Nicaragua) of the Reagan administration under the proverbial rug of the threats of the Cold War. Today, while State Crime: Intersections of Criminality is in a state of becoming, the U.S. Congress and the new Barack Obama Administration (three days away from its inauguration at the completion of the writing of this chapter) is about to sweep the state crimes, including the torture, murder, illegal surveillance, denial of habeas corpus, and other war crimes committed by the Bush II administration under the “rug of denial” associated with the threats of the War on Terrorism. Once again, the subcultural methodology, the semantic slew of sound bite rationales, and the lack of lawful accountability for these state crimes, will allow the Executive and Legislative branches of the U.S. government responsible for these crimes to escape both culpability and justice under law.

In light of the lessons learned over the past two decades about the prosecution of state crimes and the various efforts by nation-states, the UN and other supranational bodies, and by the courts—domestic and international—to address these violations and to attempt to provide some kind of closure—justice, punishment, and/or recovery—what course of action do I think makes the most sense to pursue in light of what I believe the Obama administration is likely to do? In point of fact, I do not believe that either the Attorney General, an Independent Prosecutor, or the federal Congress will pursue criminal prosecutions not because of a supposed “lack of political will” or because of the allegedly protracted divisiveness that this would cause when the economic crisis calls for us to pull together. But, because of the legal defenses that exist for those charged with these state crimes due to the executive and legislative actions mentioned earlier in this chapter. Even if criminal prosecutions materialized, I am not confidant that legal justice would be accomplished regardless of the criminal verdicts and punishments reached. Moreover, I do not believe that the victims of these state crimes, such as those innocent persons held and abused in Guantanomo, would receive their appropriate reparations or amends.

Nevertheless, I do believe that for symbolic reasons, such trials for state crimes perpetrated by the U.S. government, would acknowledge to the world that whatever the outcome of such tribunals, the United States is fully repudiating these practices of state criminality carried out in the name of counterterrorism, homeland security, and global democracy. These state crimes, in other words, should be acknowledged and not abandoned to the judgment of history, at least not U.S. history. As for world opinion on the state crimes committed by the principal players in the Bush administration, such as the Vice President, the Secretary of Defense, and the Attorney General, the “guilty” verdicts are already in. The point is that even though Americans may want to turn the page on the state crimes of the second Bush administration, in terms of a global consensus, if Americans desire acceptance back into the international community, some acknowledgement if not apology is called for, some demonstration of condemnation of past illegalities is called for and remorse for the same. A formal disposition or recognition of these state crimes committed on behalf of the war on terrorism and in violation of international law, however, need not call for exhibits of humiliation, exile, or death.

In terms of realpolitik, I believe that the best course to pursue should be to discover the truth and to repudiate the crimes rather than to punish the wrongdoing or to bring about reconciliation between the perpetrators and the victims. Truth and repudiation in the form of Presidential Commissions and Congressional oversight hearings on various subjects, including detention and interrogation practices, extraordinary renditions, reform of military commissions, and reform of surveillance practices, should be commenced for at least three reasons. First, it would restore America’s commitment to human rights by exposing and condemning U.S. abuses. Second, it would counteract the tendency toward secret laws that facilitate these types of violations. And third, it would create a public record of government misconduct as a lesson to future generations and a caution to future administrations (Balkin 2009). Less likely I am afraid, that even with the new political administration it will be state business and state crime control as usual. As for the myriad of state crimes committed by the Bush II administration, they will probably dissipate the way of the state crimes of the Reagan administration, evaporating into the narrative abyss of a long and ignoble history of state criminality by the USA.

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