Gaborone, Botswana, is not the place one would expect to find a group advocating that the United States government get tough on crime, but then the advocates were not the typical Washington cabal of interest group representatives, activists, lawmakers, and media. Rather, they were investigators and prosecutors from 14 African anticorruption agencies attending a workshop on corruption investigations sponsored by the Association of Anticorruption Agencies in Commonwealth Africa. Why the advocacy? What is the complaint with the U.S.?
Especially in the smaller African countries, any significant corruption case almost inevitably requires a cross-border investigation. The alleged corrupter is in one jurisdiction, the alleged corruptee in a second, and what may be the proceeds of the crime in a third. Although the U.S. would seem to be a long way from Lesotho, Namibia, Malawi, and other Sub-Saharan nations, workshop participants explained that not only are corrupters sometimes located in the U.S., but many African elites favor parking assets acquired corruptly in American banks, real estate, and financial assets. Hence the anticorruption authorities of Sub-Saharan states frequently seek help from the U.S. to locate stolen assets, obtain business records, and depose witnesses. In a session devoted to the mechanics of investigating cross-border cases, however, not one of the 30 participants identified a single instance where the U.S. had timely responded to their request to provide evidence they needed to help convict corrupt public officials or freeze or seize his or her assets. Indeed, several said they had been forced to dismiss charges or allow freezing orders to lapse because the U.S. had failed to reply to their requests.
Foreign law enforcement agencies seeking business records, bank account data, witness statements, and other evidentiary material located in the United States must file a formal request for “mutual legal assistance” with the Department of Justice’s Office of International Affairs. That office screens requests to ensure they are sufficiently detailed (a request for “all bank account records of John Q. Smith” will be returned) and are consistent with the 4th Amendment and other U.S. laws. If the request passes muster it was, until 2009, sent to U.S. Attorney Office’s in the district where the documents, premises, or witnesses were located and an Assistant U.S. Attorney was assigned to obtain whatever court order required to fulfill the request.
Because helping a law enforcement agency in a country the assistant may never have heard of was frequently not a busy prosecutor’s first priority, in many instances the request would keep slipping to the bottom of the “to do” pile, particularly in Delaware, which receives numerous requests for evidence pertaining to Delaware corporations, and in Northern California, home to the majority of internet service providers. Legislation enacted in 2009 authorizes OIA lawyers to obtain the needed orders without involving the U.S. Attorneys Offices, but even though the process has been streamlined, thanks to the growing number and complexity of requests, and the more stringent legal requirements required for disclosure of computer records in the post-Snowden era, the backlog of requests has been steadily growing. The Justice Department’s 2015 budget request reports that 4,500 requests were pending in the spring of 2013 and that if nothing is done to address the problem the backlog is likely to grow to more than 16,000 by 2020.
The Department’s 2015 budget asks Congress to okay the hiring of 77 more lawyers for OIA and money for a computer system to allow foreign law enforcement authorities to track where their requests are in the system – something similar to the programs airline travelers can tap into to see what progress is being made in finding and returning lost or mislaid baggage. The Department’s request ably makes the case for additional funding; unlike the off-the-record complaints I heard in Gaborone, it cites on-the-record grievances about delays in providing assistance from German and Latvian authorities. Surely, even in today’s bitterly partisan atmosphere in Washington, the modest funding increases the Department has proposed to help America’s friends fight corruption are worthy of support. Shouldn’t those combating corruption under difficult and sometime dangerous conditions enjoy access to the same kind of information those losing their luggage on an airplane enjoy?