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‘Islamophobia or an important weapon? An analysis of the US financial war on terrorism’
is Reader in Financial Services Law at Bristol law School, University of the West of England, Bristol. His research interests concentrate on financial crime and financial services regulation. He is Head of the Commercial Law Research Unit, and currently teaches Commercial Law and International Financial Crime.
is Senior Lecturer at Bristol Law School, University of the West of England, Bristol. He has extensive experience of research, consultancy and evaluation in the fields of legal procedure and international trade law. He teaches Public International Law, European Union Law and World Trade Organisation Law. Correspondence: Nicholas Ryder, Commercial Law Research Unit, Bristol Law School, University of the West of England, Bristol, Frenchay Campus, Coldharbour Lane, Bristol BS16 1QY, UK E-mail: Nicholas.Ryder@uwe.ac
ABSTRACT This article considers the impact of the terrorist attacks of September 11, 2001 (9/11) on the legislative and policy response by the United States towards terrorist financing. This article is divided into three parts. Part 1 considers the alleged association between Islamic banking systems and terrorist finance. The second part of the article critically considers the ability of the US authorities to freeze the assets of organisations who are suspected of financing terrorism by virtue of Presidential Executive Order 13 224. The final part of the article considers the reporting requirements imposed by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act 2001 (USA PATRIOT Act 2001). The third part also highlights some provisions and practices that raise the spectre of racial profiling in the United States, and critiques the fairness and success of such measures imposed on particular group of persons. The objective is not to provide a comprehensive analysis of the laws and policies, but to emphasise areas that have not yet been subject to sufficient scrutiny from the perspective of success and equality of the application of the law.
Journal of Banking Regulation (2009) 10, 307–320. doi:10.1057/jbr.2009.10
SOURCES OF TERRORIST FINANCE
Terrorist finance was adopted by the United Nations (UN) in its Declaration to Eliminate International Terrorism in 1994.1 The International Convention for the Suppression of the Financing of Terrorism defines funds for terrorism to include ‘assets of every kind, whether tangible or intangible, movable or immovable, however acquired, and legal documents or instruments in any form’.2 Before the terrorist
attacks of 9/11, the international community’s efforts towards the reduction of financial crime focused mainly on the prevention of money laundering, the illegal drugs trade and fraud. The terrorist attacks resulted in a significant alteration in both political and legislative attitudes towards terrorist financing. Subsequently, the United States instigated a ‘financial war on terrorism’, a term originally coined by President Clinton following the bombings of the US embassies in Kenya and Tanzania.3
r 2009 Palgrave Macmillan 1745-6452 Journal of Banking Regulation www.palgrave-journals.com/jbr/
Vol. 10, 4, 307–320
which concluded that al-Qaeda ‘has relied on a core group of financial facilitators who raised money from a variety of private donors’. 10.19 and that it ‘plays a central role in the shadow economy [it is] the optimal financial system for terrorists’. Terrorists have also acquired funding through traditional criminal activities.26 Despite its legitimate users. the International Monetary Fund warned that the hawala system is potentially open to abuse of financial crime. Iran and Cuba.24 Why is the hawala system so popular? It has been suggested that one reason is that many people distrust the banking system. 307–320 . One such method is the hawala system. change.17 or a method of banking that takes place outside the regulated financial services sector. but this figure only accounts for approximately 2 per cent of international financial transactions.22 The hawala system is an informal financial network based on trust. As soon as the phrase hawala was mentioned following 9/11. which has existed for centuries throughout the world. law enforcement agencies and the media declared it as a ‘financial tool of terrorism’.25 Furthermore. Rider18 took the view that ‘underground banking systems have developed to a level in some societies where they rival the conventional banking system in terms of efficiency and capability’. 4. somewhat unsurprisingly.Ryder and Turksen Terrorists have traditionally relied upon two sources of funding: state and private sponsors. Syria.5 The United States has designated four countries as state sponsors of terrorism: Sudan. Underground banking is a phrase that has been used to describe informal banking systems that are seen to be ‘secretive and mysterious’. including assignment. which means that any funds transferred are difficult to detect.19 The total number of hawala transfers amount to two trillion dollars.21 Hawala has several different interpretations.13 Terrorists are also utilising new electronic technologies to transfer money over the internet to conceal their true origin.23 This is largely because the hawala financial network makes no use of any written record. there are an abundant number of sources of funding available to terrorists.8 Such assertion ties in with the 9/11 Commission Report (9/11 Commission).14 The Financial Action Task Force reported that the legal sources used to support terrorism are extensive. politicians.7 and it is now more likely that terrorists will receive funding from private sponsors or donors. that the extent of state-sponsored terrorism has declined.19 It is said that the origins of the hawala system can be traced as far back as 5000 BC.28 Schramm and Taube21 claimed that the undocumented system ‘is well prepared to elude surveillance and regulation by anti-terrorist groups’.9 The decline in statesponsored terrorism has forced terrorist organisations to become self-funding.16.10 and as a result they are forced to deploy several mechanisms to raise funds. logistical and financial support to terrorist organisations. the hawala system is efficient and quicker than the traditional banking system.29 This is deceptive because until the financial war on 308 r 2009 Palgrave Macmillan 1745-6452 Journal of Banking Regulation Vol.6 The true extent of statesponsored terrorism is impossible to determine. yet it has been suggested that state sponsors do provide substantial support.11 Therefore. transform or promissory note. the international community has targeted alternative or nonremittance underground banking systems. without regard to international borders’.5 There is evidence.15 Hawala – A terrorist’s financial tool? As a direct result of 9/11.27 It has been suggested that the hawala system has been used for criminal activities. including benefit and credit card fraud.12 This means that they are able to ‘manipulate an expanding array of tools to shield their wealth. identity theft.20 While others assert that it was founded as a legal concept of Islamic law in 1327. the sale of counterfeit goods and drug trafficking. however.19 The World Bank claims that the amount of money remitted via the hawala system to developing countries alone from the United States is US$80 billion.4 State sponsorship of terrorism is where national governments provide ideological.
38 Third. these systems were legitimate and were heavily advertised.43 This Order sought to block and freeze the assets of terrorists and people who provided [and freeze] all assets and interests in property of certain terrorists and individuals who assist them.30 It has been reported. Despite its alleged association with terrorism.40 Resolution 1373 forms the basis of the international effort to counter terrorist finance. the Resolution can be criticised because it provides the individuals and organisations who have been accused of supporting terrorism with no opportunity within the UN to challenge the listing by the UN Counter Terrorism Committee.21 Any attempt to legislate against the hawala system by imposing reporting or registration requirements might limit some illegal activities. and regional efforts that at best work in parallel but not complimentary fashion.27 For example. it clarifies the ability of the United States to freeze and block r 2009 Palgrave Macmillan 1745-6452 Journal of Banking Regulation Vol.35 The secretive nature of the hawala system makes it impossible to regulate. are difficult to regulate.41 Consequently.33 Rider argues that one of the main reasons for the inadequate level of regulation is that the ‘law and enforcement policies which have been fashioned to address money laundering through conventional banking systems are of little practical relevance in the case of such underground systems’. and at worst work at cross-purposes’.42 The legislative policy of the United Sates is contained in Presidential Executive Order 13 224 and the USA PATRIOT Act 2001. 4. there is no conclusive evidence that al-Qaeda used the hawala system to fund 9/11. such as hawala.19 For example. it covers global terrorism. any attempt to regulate the hawala system would place an increased secretarial burden on financial regulatory agencies that are already struggling to reduce money laundering. financial assets and economic resources to people who seek to commit acts of terrorism.39 Fourth. and gives rise to potential abuse by terrorists. 10. that al-Qaeda has regularly used this system to fund its operation.31 However. The US government has attempted to deny terrorists’ admittance to the international financial system and limit their ability to raise funds.32 One of the problems facing the legislative approach to the prevention of terrorist finances is that alternative remittance systems. it expands the class of targeted groups to include those who are associated with designated terrorist groups. because the hawala system is secretive and it lacks any paper record of the transaction it ‘bedevils financial auditors and law enforcement officials.41 and it represents a ‘powerful tool to leverage co-operation by all states on financing issues’. There are three important aspects of this law. although narrowly. If this system is to be effectively regulated. financial assets and economic resources of people who commit or try to commit acts of terrorism. Legislators and financial regulatory bodies have targeted the hawala system because of its alleged links to terrorism following the attacks of 9/11. It poses considerable challenges to existing legal and regulatory regimes on money laundering and terrorist financing’. it freezes funds.19 and consequently should be incorporated into the existing financial system. it criminalises the collection of terrorist funds in states’ territory.Islamophobia or an important weapon? terrorism. 307–320 309 . but their overall effectiveness must be questioned.36 UN Security Council Resolution 1373 imposed four obligations.41 As a result of Resolution 1373.44 First. the hawala system is a lawful financial system.37 Second. THE LEGISLATIVE RESPONSE These terrorist attacks set in motion a new and direct legislative approach towards terrorist funding at an international level.34 Several countries have attempted to regulate and even ban this ancient method of money transmission. First. bilateral. it prevents any nationals from within their territories from providing funds. we have witnessed a reduction in state-sponsored terrorism. it requires states to thwart and control the financing of terrorism. ‘we are left with a patchwork of domestic. However.45 Third. and that previous attempts to regulate them have been ineffective. Second. governments need to fully understand non-remittance systems and why millions of people use them.
51 The number of suspected accounts and assets frozen represents a small fraction of the funds available to terrorists. a large number of other Muslim charities based in the United States have also been given an identical classification.55 It has been estimated that al-Qaeda funds a large proportion of its operations through charitable donations.48 The Treasury Department reported that as a result of Executive Order 13 224. 307–320 . and approximately 40 charities that were transferring money to al-Qaeda. In a large number of these cases. It is an ineffective response to the funding of international terrorism because of the vast array of sources of funding available. many asset seizures have undermined the faith of foreign investors in the US’. The next part of the article considers the impact of the second part of the Executive Order. Engel62 has also criticised this part of the anti-terrorist finance policy because the freezing of their assets has ‘confiscated the good-faith donations solicited fraudulently from Muslim-Americans’. the public and to the charities themselves who were directly accused of funding terrorism. any accurate evidence of charitable donations being used by terrorist groups is extremely rare. 4.52 Seldon53 warned that ‘despite laudable goals. and he also cited several failed prosecutions ofindividuals and organisations who also had their assets frozen following 9/11. 1439 suspected terrorist accounts have been frozen. Ruff61 has accused the US government of being ‘overzealous and using exaggerated facts to gain media attention.Ryder and Turksen terrorist assets abroad.56 However. Therefore. which is then transferred to terrorists. HAMAS and other terrorist groups have been designated and denied access to the US financial system. containing $135 million in assets. or OFAC. thus making the freezing of assets during a pending investigation particularly suspect’.50 This part of the policy has produced mixed results.63 This part of the policy is contentious because the evidence linking each of these organisations to the funding of terrorism was in the hands of the US prosecutors. the US government began to freeze assets and bank accounts across the globe that they believed to assist terrorists and their operations.58.57 One of the first US Islamic charities to be classified as a terrorist organisation was the Holy Land Foundation in Texas.46 Its ability to freeze the assets of suspected or known terrorists is administered by the Office of Foreign Assets Control. more than 400 individuals and entities have been designated terrorists or terrorists’ supporters. it has faced many problems in actually proving many of the terrorist-related charges.54 One of the most controversial aspects of the US policy is its attitude towards Islamic charities.64 The US government’s policy towards the freezing of suspected terrorist assets is a short-term solution to a long-term problem. and had their assets frozen. The US government is clearly motivated by a political desire to appease the public and make it look like they will actually catch terrorists rather than sit idly. 10. a number of corporations and individuals were designated as either a terrorist group or a foreign terrorist organisation for the purposes of freezing assets. over 150 terrorist-related accounts have been blocked in the United States. The authorities assert that there is increasing evidence that terrorists are partly financed by followers who donate money to Islamic charities. REPORTING REQUIREMENTS An important part of the policy towards the prevention of terrorist finance is the reporting 310 r 2009 Palgrave Macmillan 1745-6452 Journal of Banking Regulation Vol. the charges were dropped or the prosecutors were unable to prove any connections with terrorist activities. ASSET FREEZING In September 2001.49 Furthermore. who withheld it from the media.60 Irrespective of the apparent success and robustness with which the US authorities have targeted this apparent source of terrorist finance.59 Since this announcement.47 As a result of the Executive Order. charities could be the second largest source of funding for al-Qaeda.
possible to argue that the measures introduced by the USA PATRIOT Act 2001 may prove to be counterproductive. which yielded some very interesting statistics. and no warrants shall issue. supported by oath or affirmation. The USA PATRIOT Act 2001 contained a comprehensive package of provisions that aimed to bolster the anti-terrorist financing regulatory regimes. Whether or r 2009 Palgrave Macmillan 1745-6452 Journal of Banking Regulation Vol. Lee78 noted that ‘in an attempt to flush out the funds of foreign nationals who financed terrorism y the Fourth Amendment was trumped’.Islamophobia or an important weapon? requirements placed on financial and credit institutions. against unreasonable searches and seizures. 307–320 311 .77 After the terrorist attacks. however. and the persons or things to be seized’. the total number of SARs filed with FinCEN continues to increase at a steady rate.72 It is. whether the ‘filing of a SAR following these transactions [to fund 9/11] would have made a difference’. the level of discrimination against Muslims in the United States has increased. but upon probable cause. The imposition of mandatory reporting requirements was inevitable following the attacks of 9/11 because one of the terrorists had been the subject of a SAR in September 2000. Yet there was an increase in suspected mortgage loan and wire transfer fraud. and internal policing requirements.65 Title III of the Act increases the reporting obligations and permits the Secretary of the Treasury to impose additional requirements on financial institutions. the reported instances of suspected terrorist financing decreased by 28 per cent in the half of 2008. PROFILING OF PERSONS AND ITS SUCCESS They [non-US terrorist suspects] don’t deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process. the business deal will be the subject of a SAR or a currency transaction report. For example. 10. houses. FinCEN published its SAR.71 Nonetheless. shall not be violated.66 The Act introduced a series of regulations that are aimed at detecting terrorist finance before its introduction to the financial system. Yet. papers. financial institutions are required to file a suspicious activity report (SAR) to the Financial Crimes Enforcement Network or FinCEN.68 The reporting requirements impose administrative burdens on financial institutions that already had to comply with reporting requirements under the Bank Secrecy Act 1970.75 Can this part of the US policy described as islamophobic and/or discriminatory? The history of discrimination in the United States is controversial and extremely well documented and is beyond the scope of this article. some authors argue that these measures amount to a racial profiling.76 and are not allowed under anti-discrimination laws. In fact. 4.67 Under the Act. and effects.69 The USA PATRIOT Act 2001 has already led to an increased level of record keeping. The USA PATRIOT Act 2001 has been used by US authorities in a vain attempt to generate ‘a master list of evil doers and their possible activities’. It is questionable. The Forth Amendment of the US Constitution provides ‘the right of the people to be secure in their persons.70 In November 2008.74 Increasing the level of reporting requirements on financial institutions will not prevent terrorist finance. report filing.78 If a person enters into a legitimate transaction that has been designated by the financial institution as suspicious or high risk. therefore. This part of the policy is predictable because a large percentage of the monies used to fund 9/11 were wired to the accounts of the terrorists directly through the US formal banking system. since 9/11.73 The imposition of more regulations has generated ‘depressingly few tangible results’. and particularly describing the place to be searched. the US government and its agencies felt that it was important to disrespect the long-established need to obtain ‘probable cause’ before investigating a person’s private affairs.
Lee contends that ‘if you are Black or Brown and living in America. Muslim. not a single dollar found by a SAR or CTR report since the aftermath of 9/11. Of course. as well as characteristics of individuals such as race. the use of a business account that would not normally generate the volume of wire transfer activity.82 The appropriateness of racial profiling in concurrence with the SARs regime must be criticised because its effectiveness is dependent upon the employees of the financial institutions who are subject to the reporting requirements of the USA PATRIOT Act 2001. more than 1600 SARs were filed by 225 financial institutions that contained references to terrorism or terrorist groups.78 Before September 11. for example. you have probably been stopped and questioned by the police at some moment in your life y since the USA PATRIOT Act 2001 y if you are Brown. national origin. every hour of every business day’. currency exchange from various countries in the Middle East and business account activity conducted by nationals in countries associated with terrorist activity. Malaysia. The amounts of suspicious financial activities ranged from $14 to $300 million. The privacy of account holders versus the authorities’ ability to obtain information has been scrutinised by the US Supreme Court on several occasions. While the US Supreme Court has condemned racial stereotyping. only 21 SARs described suspicious activity related to terrorism or terrorist organisations. Indonesia and the Philippines were also identified in connection with suspicious wire transfer activity. 10. it would be months before the particular SAR would be identified. who took the view that Profiling has not enhanced national security. 4. Moreover.81 it has decided that the reporting obligations imposed by the BSA 1970 do not infringe the Fourth Amendment of the US Constitution.79 Lee adds that the USA PATRIOT Act 2001 ‘put banks in the business of practicing selective enforcement and racial profiling with every transaction. Is an employee able to understand and detect whether a transaction or series of transactions is being used to fund acts of terrorism? This is extremely unlikely given the lack of understanding of the funding of terrorism shown by the US Administration and the general ineffectiveness of the USA PATRIOT Act 2001. FinCEN have issued guidelines that provide guidance for employees of financial institutions as to what should initiate the completion of an SAR. a beneficiary account in a problematic country. if any counter terrorism measure or decision is based on the belief that members of a particular group are more likely to commit the crime under 312 r 2009 Palgrave Macmillan 1745-6452 Journal of Banking Regulation Vol. if there were evidence of terrorism uncovered by these devices. 307–320 .Ryder and Turksen not these provisions are an example of Islamophobia or amount to racial profiling depends upon the interpretation of the phrase ‘suspicion’ and the employees of financial institutions. has been traced to a terrorist act.83 Between 12 September 2001 and 31 March 2002. This includes. national of Middle Eastern descent. This point is noted by Lee. ‘look Muslim’ or ‘of Middle Eastern Ethnicity’ that questioning may happen in a bank’. But other countries with predominantly Muslim populations such as Pakistan.84 The suspicious wire transfers occurred predominantly to or from Middle-Eastern countries. the Treasury Department is now so overwhelmed by the sheer number of SARs and CTRs. Whether or not a person is to be the subject of a SAR will wholly depend upon the judgment of the employee in applying the firms counter terrorist finance policy. the selection of Middle Eastern ethnicity and Muslims as terrorist suspects does not automatically amount to a racial profiling if the investigation is based on evidence of particular conduct. eye colour and height. 2001. However.80 Part of the problem lies with the people who report a suspicious transaction and the grounds they base their decision on. not a single arrest.
‘black’ and ‘Asian’.92 or argue that it is unnecessary. The decisive question is therefore whether terrorist-profiling practices. The UN Special Rapporteur on Human Rights asserts that according to the nondiscrimination jurisprudence.87 For example. while the government declares that racial profiling is wrong and immoral. then one could start establishing the hallmark of racial profiling based on stereotypes. 4.96 Moreover. a difference in treatment on the basis of a criterion such as race. a police officer may legitimately consider race as a factor if descriptions of the perpetrator known to the officer include race’. it must be shown that they are necessary to promote a ‘compelling’ or ‘overriding’ government interest. and therefore inevitably involve unfounded stereotyping through a crude categorisation of assumed races. First. or otherwise investigate a person because his race or ethnicity matches information about a perpetrator of a specific crime that the officer is investigating’.Islamophobia or an important weapon? investigation than are members of other groups. the terrorist-profiling practices that involve distinctions according to a person’s presumed ‘race’ cannot be supported by objective and reasonable grounds. arrest. while statutory instruments do not explicitly endorse or encourage racial profiling. such as ‘white’. stop. Second. It provides that racial profiling is ‘wrong’ and ‘stereotyping certain races as having greater propensity to commit crimes is absolutely prohibited’. search.91 whereas some are totally against it.98 In regard to the first requirement. because they are based on the wrongful assumption that there are different human races. Although the courts have held that racial component of any evidence and/or suspect description on its own is not sufficient enough to justify a stop and search. and the differential treatment they involve. such as a member of the Irish Republican Army or the Basque group ETA. the same cannot be said of policies and practice developed by institutions entrusted with countering the financing of terrorism. the aim of law-enforcement practices that are based on terrorist profiling is the prevention of terrorist attacks.88 Academia also agrees that suspect description reliance is permissible under the Equality Protection Clause. 10. the following two requirements are generally applicable to determine the existence of an objective and reasonable justification. ethnicity.93 The Supreme Court’s view has been that ‘[at] the very least. r 2009 Palgrave Macmillan 1745-6452 Journal of Banking Regulation Vol. the difference in treatment must pursue a legitimate aim. and this constitutes a legitimate and compelling social need. As far as distinctions according to national or ethnic origin and religion are concerned. According to these guidelines. national origin or religion will only be compatible with the principle of nondiscrimination if it is supported by objective and reasonable grounds. but ‘efforts to defend and safeguard against threat to the national security or integrity of the Nation’s borders’ are exempt from racial profiling prohibitions.85 Gross and Livingston86 have asserted that ‘it is not racial profiling for an officer to question. the Equal Protection Clause demands that racial classifications y be subjected to the ‘most rigid scrutiny’.89 as it is not racially discriminatory and relies on particular characteristics of a specific perpetrator. investigate and arrest. in the same breath it asserts that the war on terror justifies the use of race and ethnicity when similar tactics have been found both ineffective and contrary to equal protection principles in other criminal investigations.97 Accordingly. there has to be a reasonable relationship of proportionality between the difference in treatment and the legitimate aim sought to be realised. 307–320 313 .90 Some academics support the use of racial profiling. no court decision has established that reliance on suspect description is discriminatory or ‘identifying characteristics’ cannot include race or ethnicity.95 The Department of Justice guidelines on the use of race in criminal investigations follow a similar line. it was asserted that ‘ y common sense dictates when determining whom to approach as a suspect of criminal wrongdoing.94 If such measures are to be upheld.
a profile would need to be narrow enough to exclude those persons who do not present a terrorist threat. terrorist profiles that are based on characteristics such as ethnicity. used by the FBI’s Foreign Terrorist Tracking Task Force. However.100 In fact. and also what kind of negative effects these practices may produce. Neither of these tools is available to financial institutions yet. This may result in the important lawenforcement resources being diverted away from more beneficial work. the greater becomes the number of people whom the law enforcement agencies treat as suspects. the question remains as to whether financial institutions use suspect descriptions in order to narrowly target those individuals who most resemble the perpetrator or whether they view suspect descriptions on stereotypes based on mere geographical origin. and none of the anti-terrorism laws explicitly regulate the issue of profiling through legislation. Moreover. at the same time.99 It is also worrying that the over-inclusive terrorist profiles that are used in SARs overwhelm the law-enforcement system. is there a real. 4. there are those who are identified as having links or associations with prescribed terrorist organisations. that Muslims.104 Although the guidelines emphasise the importance of the role of the financial institutions in counter-terrorism efforts and outline what should be included in the SAR. the financial institutions follow the US Department of Treasury’s Guidance on the SAR. in 40 instances. the Department of Justice shares the names of suspected terrorists by adding the names to the National Crime Information Center Database. religion and so on. as the evaluation of current practices reveal. name. is highly doubtful. there seems to be no dissimilarity. and as a consequence may lead law-enforcement agents to miss a range of potential terrorists who do not fit the respective profile. the efforts to identify and find these persons cannot be temporary or geographically limited. based on mere suspect description. For example. which tracks suspected terrorists. namely. they do not provide a criteria against which the SAR regime should be exercised specifically. which stipulates the modus operandi for conducting the SAR. national origin and religion are inaccurate indicators because the initial premise on which they are based. Arabs or persons of Middle Eastern appearance are particularly likely to be involved in terrorist activities. Consequently. clear division between the two approaches? In the context of countering the financing of international terrorism. national origin and religion are also underinclusive. Islamist terrorists arrested or killed in Western States showed that less than half of them were born in Middle Eastern countries. In assessing proportionality. financial institutions indicated that the SAR was filed because the account holder appeared to have the same name as individuals 314 r 2009 Palgrave Macmillan 1745-6452 Journal of Banking Regulation Vol.102 Moreover. Therefore.103 and provides electronic filtering called the System to Assess Risk. even though the vast majority of them will turn out to present no risk. there is a danger that profiles based on ethnicity.101 For example.and under-inclusive. In order to serve as a suitable and effective tool of counterterrorism. As Leiken and Brooke’s recent study indicates. 10. the current number of known and suspected terrorists who are sought by law enforcement agencies run in thousands. As a result of the current nature of international terrorism. financial institutions indicated that the SAR was filed because the individual was a pilot or student attending flight school. With the broader profiles. and. it can be argued that ethnicity.83 In other instances. Hence.Ryder and Turksen are a proportionate means of achieving this aim. national origin and religion are regularly inaccurate and both over. broad enough to include those who do. it is necessary to consider whether terrorist-profiling practices are a suitable and effective means of countering terrorism. The guidelines merely require the reporting institution to ask themselves Why does the filer think the activity is suspicious?105 This allows for a great subjective decision making on the filers’ behalf and often lacks factual basis. In relation to the SAR requirements. 307–320 .
Importantly. In its report. and ethnically disproportionate.111 Although the SAR regime may not be directed at them. as aptly asserted by Barak-Erez. the German Rasterfahndung did not result in a single criminal charge for terrorism-related offences. Khaled el-Masri of Germany proves the case in point. but also ensure that it does not have long-lasting effects on innocent people. or the SAR was filed because of the recent events of terrorist acts. appeared to be of Middle-Eastern descent. it could be perceived as a justified effort to prevent any financial activity that may further terrorism. the United States has over a million Muslim citizens of Middle Eastern and/or Arab origin. Thus. one ought to consider the long-term effect of such policy on the overall social cohesion of the society as well.108 Finally. persons who are wrongly identified as suspected terrorists can suffer irreparable harm. not financing of terrorism. American citizens of such origins will also be affected by the SAR regime.109 While the effectiveness of such measures may be debated. 307–320 315 . in the United Kingdom. inevitably. Inevitably.112 such practices should not only establish an objective criterion for profiling. in the United States. this is often not the case. 10. While the supporters of profiling may contend that members of a targeted group have nothing to fear from profiling because they will be exonerated if they are innocent. 8120 pedestrians were stopped under Section 44 (2) of the Terrorism Act 2000. For example. the targeting of mainly immigrants of Middle Eastern descent has not produced any significant results in the form of arrests or successful convictions either. Yet these stops led to only five arrests in connection with terrorism – a ‘success’ rate of 0.113 In fact. For instance. For instance. without reliable information and concrete evidence. they may still encompass a large number of people. the few successes achieved by the German police forces in detecting alleged Islamist terrorists were all achieved by traditional. In 2003–2004. SARs based on such criteria have resulted in the investigation of thousands of innocent Arabs and Muslims. especially in terms of how they are perceived by the general population. It is now accepted that racial profiling does not expose potential terrorists nor increase national r 2009 Palgrave Macmillan 1745-6452 Journal of Banking Regulation Vol. it may be necessary to consider both the proportionality and effectiveness of such practices if we want to establish an intelligent evaluation. 4.106 Instead. On the other hand.06 per cent.107 Similarly.110. Incidentally. Even though suspect descriptions may be specific as to time and place. Empirical evidence from a number of schemes involving profiling also underline the ineffectiveness of such strategy. Therefore. all of those arrested were White. Given that distinction between legitimate suspect description reliance and prohibited profiling is fuzzy in the war on financing of terrorism. connecting suspects or suspicious financial activities to a specific criminal offence will provide hardly any results. and could lead to wide stigmatisation of the entire group as potential terrorists. it is also indicated that the only successful conviction relates to a violation of immigration laws. banks may engage in profiling on the basis of key aspects of a description of a known terrorist such as name and nationality. the widespread. reliance on an intelligence report that three Muslim men from the Middle East will attempt to finance a terror plot by wire transfers next week could lead to nearly all money transfers from the Middle East being scrutinised. for example. in the same report. use of stop-and-search powers has produced hardly any results. in their efforts to combat financing of terrorism. however. intelligence-led methods. As a multi-cultural society. However.83 It is not surprising therefore that most SARs have provided no use whatsoever for preventing terrorism nor resulted in conviction of suspected terrorists. some may view this sort of investigation as racial profiling. FinCEN asserts that SARs greatly enhance cases involving material support to terrorism.Islamophobia or an important weapon? identified by the media as terrorists.
yet controversial closure of the al Barakaat financial network. Muslims). and is also reproduced internally in those societies imbued with Western values.121 It has. Moreover. Although the antiterrorism agencies may possess the intelligence that could reveal terrorist operatives and fundraisers. the targeted groups (for example. the Revival of Islamic Heritage Society and the Al-Haramain organisation. The impact of these legislative provisions on terrorist finance must therefore be questioned. the massacre at Waco. or liberalism versus Islamic or Christian fundamentalism) to counter-terrorism and financing of terrorism policies are bound to fail. financial institutions generally do not have such capacity. and they continue to have a vast array of sources of funding available. racial profiling would not be effective. such practices undermine national security and alienate targeted groups. filing a SAR that an Islamic charity is sending money to Afghanistan or Palestine will not be particularly effective in finding terrorist financiers either.114–116 On the contrary. The US government claims that it has robust strategy. Texas. Hence. the natives and ‘them’. 307–320 . Afghan Support Committee. Similarly. and thus indiscriminately filing SARs on them will do nothing. as al-Qaeda continues to inspire an increasing number of terrorist attacks. the recent underground bombings in Istanbul118 and London are just a few prominent examples. President Bush proclaimed that his administration would stifle terrorist funds wherever they were held in the world. national origin and religion may have the contrary effect of alienating communities from cooperating with law-enforcement authorities. The judgments based solely on looks. The creation of dualism between ‘us’.Ryder and Turksen security. al Qaeda). The 19 hijackers hid in plain sight: none of their financial activities could have revealed their real intent. Therefore. however. but waste resources and cause bad will. Terrorist organisations have adapted to the legislative changes introduced in the United States. Within ten days of the attacks. It is common sense to guess that the vast majority of Islamic or Arab bank customers are not terrorists or terrorist supporters. It is very well known that there are many legitimate humanitarian needs in these jurisdictions where such charitable activity can deal with the root causes of terrorism. and may thus hamper effective gathering of intelligence. the UN Special Rapporteur has called on States to foster community policing initiatives that build partnerships of trust between law-enforcement agencies and ethnic and other communities. religion or nationality can be misleading because neither race. made limited headway against terrorist finance. the Holy Land Foundation for Relief and Development. 10. the Aum Shinrikyo (Japanese terrorist cult) gas bomb attack in Tokyo. The assumption that banks have superior knowledge to detect illicit activity may not apply to terrorist financing. the Oklahoma City bombing. successful counter-terrorism operations depend on the cooperation of the communities where the suspects live.117 Therefore.120 Profiling based on ethnicity. The IRA bombings.119 Even if al-Qaeda and/or Arab terrorists did represent the only terrorist threat. which has included the successful. is also deeply regressive in a globalising society. while heightening their vulnerability and exclusion from the society. nor religion nor nationality assumes a quintessential form. CONCLUSION The international community was totally unprepared to regulate terrorist finances before the events of 9/11. What followed can only be described as 316 r 2009 Palgrave Macmillan 1745-6452 Journal of Banking Regulation Vol. Terrorism is not confined to external threats (that is. The full impact and success of these measures in terms of immobilisation of funds or of knowledge gained about terrorist structures remain uncertain. 4. The terrorist attacks on the Pentagon and the World Trade Center galvanised the international community into action. there is a great need for reshaping of the counterterrorism policy pertaining to financial activities. The September 11 plot provides a perfect example. dualist approaches (such as liberalism versus terrorism.
The US authorities froze assets worth $135 million of nearly 250 individuals and groups who were designated terrorist organisations. for example. The self sufficiency-of terrorist cells was also recognised by the official report on the terrorist attacks on London on the 7 July 2005. K.state. 821–850. at 561. http://www. C. (2004) New trends in money laundering – From the real world to cyberspace. at 231. (2005) Report of the official account of the – Bombings in London on 7th July 2005. F. (2005) How terrorist exploit gaps in US anti-money laundering laws to secrete plunder. The use and effectiveness of such a policy must therefore be questioned. The 9/11 Commission. Bantekas. and the compliance costs are huge. at p. for example.F. 23. Furthermore. Virginia Journal of International Law 45(1): 137–141. it must be noted that this is not a new concept or strategy. sustained and multilateral response to the problem of terrorism since 9/11. para. Journal of Money Laundering Control 6(2): 105–136. For a more detailed discussion of this see Ping. above n 3. (2003) The international law of terrorist financing. Journal of Business Law November. American Journal of International Law 97: 315–333. T. 786 (2001). See US Department of State ‘State sponsors of terrorism’. London: House of Commons. 1373 (2001) and 1566 (2004) in order to prevent and suppress terrorism. London: Norton. It has alienated potential Islamic investors in the United States. See Exec. What has this realistically achieved? It is controversial. rules and regulations aimed at preventing terrorist organisations from carrying out such attacks. A. 3 C. B. (2004) Legal mechanisms of the international community and the United States concerning the state sponsorship of terrorism. Rider. For a more in depth discussion of the operation of underground banking systems see Trehan.R. (2002) Money laundering countermeasures with primary focus upon terrorism and the USA patriot act 2001. 28. N. Order No. Arguably. The inadequacies of the previous legislation were highlighted by the 9/11 Commission. at 89. Journal of Financial Crime 10(1): 76–84. J. 307–320 317 . For a detailed discussion of this issue see Chase. (2005) The world after September 11: Has it really changed? The European Journal of International Law 16(3): 561–575. Journal of International Banking Regulation 4(1): 13–31. A high-profile attempt to counter terrorist finance resulted in a number of Islamic charities having their assets frozen. Pathak. at 112. Winer. H. 4. for example. I. n/d. 10. Within the United Nations. and Roule. (2004) The 9/11 commission report – Final report of the national commission on terrorist attacks upon the United States. A reaction to these attacks was the issuing of Executive Order 13 129.Islamophobia or an important weapon? a plethora of legislation. along with some 19 global and regional treaties pertaining to the subject of international terrorism. innocent people with certain attributes and characteristics have been targeted and investigated without justification. Journal of Money Laundering Control 8(1): 48–55. The United Nations (1999). Quenivet. while the General Assembly adopted resolution 56/1 (2001) by consensus. as well as potential international partners who are needed to confront the problems caused by terrorist finance. at 14. which had an immediate impact. (2004) r 2009 Palgrave Macmillan 1745-6452 Journal of Banking Regulation Vol. (2002) Underground and parallel banking systems. the Security Council was the first to react and unanimously passed resolutions 1368 (2001). 4 5 6 7 8 9 10 11 12 13 14 REFERENCES AND NOTES 1 Annex to Resolution 49/60. p. See House of Commons. At the forefront of the US war on terrorist finances is Executive Order 13 224. (2001) The international anti-money laundering regime: The role of the financial action task force. 1701 (2001). N. See. See Ryder. 2 Article 1. (2002) The weapons of war: The use of anti-money laundering laws against terrorist and criminal enterprises – Part I (2002). Part of this campaign was directed at USbased Islamic charities after it was reported that al-Qaeda received a large percentage of its monies from such organisations. (2002) Fighting terrorist finance.. This system has also been referred to as the ‘hundi’ or ‘fei ch’ien banking system. Linn. 1 of the Convention. Journal of Money Laundering Control 4(3): 231–248.gov/s/ct/c14151. The new regulations placed on the US banking sector are burdensome. p. 170. R. which prevented access to property and outlawed 15 16 17 18 19 dealings with the Taliban. Alexander. Survival 44(3): 87–104. (2007) A false sense of security? An analysis of legislative approaches to the prevention of terrorist finance in the United States of America and the United Kingdom. J. there is now a more robust political and legal deterrence to counter-terrorism.2 million such reports filed with the US authorities between 1996 and 2003. This may attributable to the depth of shared international commitment to an effective. Rider. which reported that one of the suicide terrorists had been the subject of an SAR in 2000. Baldwin Jr. The introduction of additional reporting requirements under the USA PATRIOT Act 2001 does little to advance the so-called war on terrorist finances. See. Measures to eliminate international terrorism.htm. accessed 13 March 2009. 13224. 49/60. 9 December 1994. Journal of Money Laundering Control 8(3): 200–214. reprinted in 50 USC. 3 However.S. This SAR was one of over 1. See. at 315.
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Waszak. above n 3. J. at 407. France: Interpol. SCOR. 52 See Navias. Razavy. 6. M. Res. above n 10. Jost. above n 23. the reduction of financial crime and the money launderer – A game of cat and mouse. (2005) If it weren’t for the flip side – Can the USA Patriot Act help the US pursue drug dealers and terrorists overseas.. N. (2002) Financial warfare as a response to international terrorism. at p. S.N. at p. N. Strategic Analysis 26(2): 181–198. Taube. 47 OFAC enforces economic and trade sanctions based on US foreign policy and national security goals against targeted foreign countries. 45 For a critical review of these powers see McCulloch. William and Mary Law Review 45: 1341–1449.. Rider. for example. at p. U. at p. Razavy. (2004) The obstacles to suppressing radical Islamic terrorist financing case western reserve. 88. Fordham Journal of Corporate and Financial Law 8(3): 491–552. 317. Article 1(b). G. Dallas Morning News. 307–320 .com. U. Pace Law Review 25: 309–317. 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57. R. 67 USA PATRIOT Act 2001. 73 The US Treasury Department reported that there in 2001. New York Times. 4 (19 January 1984). 10. and Livingston. Ghaidan v. 15 November. 83 See FinCEN. Broeks v. (2002) Contributions by the Department of the Treasury to the Financial War on Terrorism. 76 Harris. 1996) and Commonwealth v. Kim. without regard to any differences of race. C. 78 Lee. For detailed discussion on this issue see Moeckli. 13 (1990). Adarand Constructors. Brown v. World American Criminal Law Review 40: 1195–1233. (2002) Essay. London: Home Office. 509 US 630. New York: New Press. (2007) Racial profiling on the war on terror. Inter-American Court of Human Rights (Ser. 82. para.’ The Supreme Court in Yick Wo v. New York: Prometheus Books. 31. 80 Lee. Law Review 56: 573–602. 4. in 2003/2004 Asian people were about 2. S. to be stopped and searched under anti-terrorism legislation than white people. App. to focus on an individual for additional investigation. See.3 times more likely. citing Vice President Dick Cheney. New York: Prometheus Books. 81 See. 84 There were 1016 SARs that recorded $0 as the violation amount. p. Mercado. US v. above n 74. Similarly. D. Oxford: Oxford University Press. or of nationality’. generally. 10. Osgoode Hall Law Journal 41: 231–293. 77 A number of international legal instruments (for example Article 1 of the Universal Declaration of Human Rights 1948 and Article 2(1) and 26 of the International Covenant on Civil and Political Rights 1966) and the US Constitution prohibit discrimination and require equality before the law. above n 87. racial profiling under attack. at 6. 82 See Lee. at p. Dist. 118. McLaughlin v. T. 5.6 million currency transaction reports were filed (these are required for transactions over $10 000) and 182 000 suspicious activity reports were filed with the Treasury Department. para 9. (2000) No Equal Justice. (2002) The SAR Review and Activity Tips and Trends Issue 4. Ct. 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Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica. University of Pennsylvania Law Review 155: 173–184. in the United Kingdom. 369 (1886) has recognised that the Equal Protection Clause is applicable ‘to all persons within the territorial jurisdiction. 1431 n. he’s also wasting your tax payer dollars: An analysis of the antimoney laundering provisions of the USA Patriot Act Rutgers. See. (2004) The skies won’t be safe until we use commonsense profiling. 66 Title III is also known as the International Money Laundering Abatement and Anti-terrorist Financing Act 2001. Human Rights Committee. J. 500 US 614. r 2009 Palgrave Macmillan 1745-6452 Journal of Banking Regulation Vol. 1992). Loving v. (2006) Constitutional cash: Are banks guilty of racial profiling in implementing the United States patriot act? Michigan Journal of Race and Law 11(Spring): 557–604. 663 N. for example. Hoopes.3d 1426. see FinCEN. of color. ethnicity or national origin. 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