by Dana M. Grimes, Esq.
The Global Arms Market
Dealing in Firearms is not inherently illegal. In 2011, the United States exported 46 billion dollars in weapons, and Russia and other Eastern Block countries exported many billions more. Under United States law, legitimate transactions require an end-user certificate identifying the buyer. Weapons dealers cross the line into illegal activity when weapons are diverted from a legitimate buyer to countries or groups that have been placed under sanctions by the American government. In some cases, the end-user certificates are forged, but in many countries corrupt officials will provide end-user certificates, without any meaningful follow up to see where the arms are actually delivered.
The United States targets international arms dealers who engage in these practices. International law is generally weak. Interpol has limited investigative and arresting power, and is little more than a clearinghouse for warrants that individual nations can chose whether to enforce. Weapons trafficking in violation of international law can still be perfectly legal in many nations, and wealthy arms traffickers invariably have powerful allies in the governments of their own countries, as well as other countries where they conduct business.
Catching Arms Dealer Viktor Bout
The United States is among the very few countries with laws allowing federal agents to entice foreigners in other countries into breaking United States laws, and then arrest them and bring them back to the United States for prosecution. After the terrorist attacks of September 11, 2001, new statutes enhanced the power of “extraterritorial jurisdiction,” enabling American authorities to investigate and prosecute suspects for crimes committed outside of the U.S.
A famous example of this is the prosecution of Viktor Bout, who was portrayed by Nicolas Cage in the movie “The Lord of War”. Bout is a Russian entrepreneur, fluent in five or six languages, who formed an airfreight company with a fleet of Russian planes. When the Soviet Union dissolved in 1991, criminal gangs flourished in Russia, but the arms transportation business, which became part of the business of his airfreight company, broke no Russian laws. He did not take sides; he flew Belgian peacekeepers into Somalia, French peacekeeping groups into the Congo, and tents and frozen food to United States troops into Iraq. However, the United States suspected that he was also flying arms to violent prohibited groups in countries including Angola, Sierra Leone, and the Congo.
Although Bout did not deal in drugs, the DEA was instrumental in targeting him, because the DEA’s Special Operations Division has an international network of relationships and informants that, in many regions of the world, is more effective than that of the CIA. In January 2008, Bout’s partner was enticed to a meeting at a tiki bar at the Hilton Hotel in Curacao, where two undercover operatives, posing as members of the violent Colombian rebel group FARC, asked him to provide Russian-made shoulder fired missiles to target helicopters flown by United States pilots in Columbia.
Bout himself was eventually persuaded to meet the undercover agents in Thailand, where he agreed to a plan in which an official in Nicaragua would sign an end-use certificate for that country, but the arms would be flown across Columbia and dropped in a jungle area near the Colombian border in Northern Brazil that was controlled by the FARC. Thai authorities accompanied by DEA agents arrested Bout. The Russian government denounced the charges against Bout and protested to the Thai authorities, but the United States prevailed. Bout was extradited to the United States and tried in Federal Court in Manhattan. A Manhattan federal jury convicted Russian arms trader Viktor Bout of four counts of conspiracy to sell anti-aircraft weapons and other arms to purported Colombian rebels to kill Americans.
The defense argued Bout was a political prisoner, entrapped by an American sting, and no different than many American businessmen who deal in arms. The government argued Bout was a “Merchant of Death,” empowering dictators in war-torn countries by supplying weapons that they could turn on their own people and Americans. The trial judge appeared to be ambivalent about the Bout’s case. At one point in the proceedings she stated, “I don’t know what to say,” adding that Bout struck her as “a businessman… You may not like the business he is in-but he is a businessman. I never heard any evidence that he personally had been involved in violence or terrorist acts… He is an arms dealer. We have lots of arms dealers here, too. Sometimes they cross the lines as criminals, sometimes they do not. This is a business.” However, the statute Bout was convicted of provided a mandatory minimum of 25 years and a maximum of life, and in April 2012, District Court Judge Scheindlin imposed a sentence of twenty-five years in prison.
Catching Arms Dealer Monzer-al-Kassar
The Bout investigation and prosecution followed a strategy developed by United States authorities in a very similar case involving wealthy Syrian arms dealer Monzer al-Kassar. Kassar owned an import-export company that conducted legitimate business, but was believed to be involved in purchasing arms from Eastern Block manufacturers and selling them to rogue states and terrorist groups, in violation of international sanctions. Kassar had moved his family and his business to Spain; he negotiated between an arms supplier in one country, a buyer in a second country, and his commissions were wired to a bank in a third country. Kassar never set foot in the countries where the crimes occurred, and under Spanish law he committed no crimes.
The DEA Special Operations Division devised a plan in which a sham end-user certificate for the arms was obtained from an official in Nicaragua, and Kassar agreed to sell the weapons to members of FARC. Two Guatemalan informants were enlisted, including one, Carlos, who spoke English (like Bout, Kassar was fluent in a number of languages, including English). Carlos was a former drug trafficker who had worked with the United States authorities on 150 undercover assignments. (For his work in the Kassar case, the State Department paid Carlos seven million dollars.)
Fearing his allies in the Spanish government would protect Kassar, the DEA tried to lure him to meet in Greece or Romania, but Kassar was wary, and eventually the informants flew to Spain to meet with him. Kassar agreed to sell Russian rockets to the FARC for the purpose of shooting down United States pilots in Colombia. The DEA filed a provisional arrest warrant with Interpol, and the agents accompanied Spanish officials, who arrested Kassar. Kassar fought extradition from Spain for over a year, but ultimately was extradited to Federal Court in Manhattan, where he was tried, prosecuted, and sentenced to 30 years in prison. He had never set foot in the United States, never talked to or met with any member of FARC, and never delivered any missiles to the DEA undercover operatives.
Unites States – Mexico Weapons Trade
Criminal organizations in Mexico do not need to purchase planeloads of weapons from the lords of war. Many thousands of weapons were stockpiled in Central America during the civil wars in that region. Truckloads of these weapons have made it across the border between Chiapas and Southern Mexico. However, the majority of weapons in Mexico come from the United States. A significant number of these weapons are firearms that are purchased from the United States by Mexican military or law enforcement agencies, which are then stolen or sold by corrupt officials to the criminal organizations.
The biggest source of firearms is the incessant flow of relatively small numbers of weapons purchased by members of Mexican drug cartels, or their cousins, nieces, nephews, and friends who are United States citizens. United States federal firearms laws are lax compared to most places in the world, and do not prohibit private parties from purchasing AK-47s and AR-15s, the two assault weapons favored by cartels.
Some states, including California, have fairly significant restrictions on the sale of assault weapons, but Arizona and Texas do not. According to recent U-T San Diego articles, approximately 250,000 firearms purchased in the United States between 2010 and 2012 were smuggled into Mexico, and nearly half of registered gun sellers in the United States would go out of business without the demand from Mexico. About 15% of the firearms purchased from licensed gun dealers in the US are purchased for trafficking purposes. Neither the ATF nor Mexican authorities can make a dent in this traffic, and Mexican President Enrique Peña Nieto, and his predecessor Felipe Calderón, have been vocal in blaming the US for responsibility in the tens of thousands of firearm murders that occur in Mexico every year.
The prosecution of foreign nationals involved in illegal arms dealing is not enough to prevent weapons from finding their way in to the hands of dictators, criminal organizations, and enemies of the United States. On January 17, 1961, Dwight D. Eisenhower, the 34th president of the United States, said, “In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”
We are beginning 2018 with an administration that is very favorable to the position that the Second Amendment greatly limits the restrictions that the government can place on the position and use of firearms. Great volumes of firearms and ammunition are going to continue to be sold throughout the country. Friends and family members of cartel members who are US citizens, as well as straw buyers, will continue to supply the Mexican drug cartels with all of the armament they need. ATF agents will work hard and make some arrests, but will not be able to diminish the flow of weapons to Mexico.