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The New Measure of DOJ Seriousness: The Charges It Defers

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In an article on the upcoming HSBC settlement, Reuters seems impressed with the fine the bank may pay for the assistance it gave to drug gangs and terrorists and other crooks by  laundering their money: $1.8 billion. It goes on to talk about “how big a signal” DOJ wants to send with this settlement.

The emphasis, of course, should be on that word “settlement.” One that will likely result in a Deferred Prosecution Agreement, in which no one gets charged, not even for the egregious conduct HSBC engaged in.

Because ultimately, Reuters is measuring this big signal by the seriousness of the criminal charges DOJ doesn’t file.

In regulatory filings, HSBC has said it could face criminal charges. But similar U.S. investigations have culminated in deferred prosecution deals, where law-enforcement agencies delay or forgo prosecuting a company if it admits wrongdoing, pays a fine and agrees to clean up its compliance systems. If the company missteps again, the Justice Department could prosecute.

[snip]

The agreements “have become a mainstay of white collar criminal law enforcement,” U.S. Assistant Attorney General Lanny Breuer said in September during an appearance at the New York City Bar Association.

“I’ve heard people criticize them and I’ve heard people praise them. DPAs have had a truly transformative effect on particular companies and, more generally, on corporate culture across the globe.”

If U.S. prosecutors agree to a deferred agreement, they still could wield a powerful legal tool by accusing the bank of laundering money.

That would be a much more serious charge than if prosecutors, in a deferred agreement, charged HSBC with criminal violations of the Bank Secrecy Act, a law that requires banks to maintain programs that root out suspicious transactions.

[snip]

A charge of money laundering would be a rare move by the Justice Department and would send a signal to other big banks that the agency is intent on cracking down on dirty money moving through the U.S. financial system. [my emphasis]

No, seriously. A legitimate report just said that DOJ will send “a signal” based on ratcheting up the seriousness of the crimes it makes disappear with one of Lanny Breuer’s flaccid DPAs. It will send “a signal” with the seriousness of the charges it will effectively excuse.

Heck. If we’re not going to really charge these banksters, why not add on murder or drug trafficking or terrorism charges, or any of the other crimes they abetted? That would really send “a signal” now, wouldn’t it, deferring even more serious charges that real people would do hard time for?

The Senate has already accused HSBC of money laundering. But mere accusations–even with promises to do better–do nothing.

No matter how serious a charge those accusations involve excusing.

Promontory Financial Group Describes a New “Risk-Based” Approach to Anti-Money Laundering

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In light of the recent Standard Chartered Bank flap, Saturday’s report that Deutsche Bank is under investigation for similar behavior, and today’s report that RBS (as well as two other banks, one of which is Sumitomo Mitsui) is as well, I want to look at an article on Anti-Money Laundering enforcement a Promontory Financial Group exec, Michael Dawson, published in American Banker just one week before NY’s Superintendent of Financial Services, Benjamin Lawsky, filed an order against SCB alone.

Around the same time Dawson was writing this, remember, his company was involved in a review of SCB’s laundering of Iranian funds that would show a tiny fraction of the total exposure that SCB would ultimately admit to. That is, Dawson’s comments probably provide a glimpse into what PFG was seeing not just in Citibank and Commerzbank enforcement actions, which he discusses, but also in SCB. And it might help to explain why other regulators were so intent on crafting an SCB settlement based on just $14 million in violations rather than $250 billion.

Dawson reports seeing a change in recent AML/BSA enforcement actions, away from a “rules-based approach” toward a “risk-based approach.” He suggests that regulators are demanding not a broad-based examination of the scope of AML violations, but instead more targeted information about who posed the biggest risk laundering money and what they were doing.

Instead of requiring expensive reviews of extended periods of time for a broad range of potential suspicious activity, the latest enforcement actions emphasize a risk-based approach to AML compliance, with several of the actions requiring a risk assessment or enhancements to an existing assessment.

[snip]

The level of specificity required is noteworthy and includes, among other things, detail on the volumes and types of transactions and services by country or geographic location as well as detail on the numbers of customers that typically pose higher BSA/AML risk. The actions also require a more holistic approach, requiring the results of the bank’s Customer Identification Program and Customer Due Diligence program to be integrated in the risk assessment. [my emphasis]

This sounds like the regulators are interested not in discovering how banks are complicit in money laundering, but rather using the banks to get details on key people who money launder and the tactics just those key people (terrorists, cartel kingpins, mean Iranians) use. (Note, I think something similar, but even more significant, happened last year when JPMC got busted for trading with Iran, but no one seems to remember that happened.)

After making these broad statements about the general direction of AML enforcement, Dawson distinguishes between what the Office of the Comptroller of the Currency is requiring and what the Fed is. OCC has not only shortened the period which it requires banks to examine problematic behavior, but it has also permitted banks to conduct their own reviews (which seems to have Dawson worried about losing the business of providing such services for banks).

Where the OCC required lookbacks, it asked for risk-based, targeted reviews, rather than comprehensive look-backs that were sometimes found in earlier enforcement actions. The recent actions either specify a shorter look-back period than has been specified in the past or, in the case of the Citibank action, no explicitly specified period, subject to the ability of the regulator to expand the look-back depending on the results of the more limited period.

Also, the OCC actions allowed the institutions to conduct the review themselves and either do not explicitly mention an independent consultant or limit the role of the independent consultant to “supervising and certifying” the look-back.

The OCC, at least, doesn’t sound like it’s doing “smarter” enforcement, but rather doing lax enforcement. Remember, though, that OCC got a newly-confirmed Comptroller during this period, who talked aggressively at the recent Permanent Subcommittee on Investigations hearing on HSBC’s egregious AML problems–though that talk partly echoed what Dawson has to say about “flexibility” and a “holistic” approach.

Meanwhile, according to Dawson, the Fed doesn’t seem to be offering quite as much flexibility. Dawson describes the Fed employing this new risk-based approach, but it is still requiring longer reviews (though not all that long, at 16 months) and outside consultants to complete the reviews.

The Fed, in its action against Commerzbank requiring a lookback, also showed some flexibility. Read more →

Only Banks Might Want to Review How Criminal Banks Are

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The other day, I noted how–days after his department reported that suspected bankster crimes are growing quickly and terrorist financing crimes are going down–Treasury Department fired FinCEN head, Jim Freis. Given some of the reporting describing the firing, which explained that Treasury wanted to focus on things like terrorist financing whereas Fries had been focusing on things like mortgage fraud, I wondered whether Treasury fired Freis, in part, for showing that the emphasis on terrorism resulted in the neglect of bankster crimes.

Today, FinCEN sent out notice of a survey to determine how useful that report and another yearly report–on Tips and Trends–they produce are (note, the email notice says an invitation to the survey is here, but as of 8:15 it is not).

As a subscriber to e-mail updates from the United States Department of Treasury’s Financial Crimes Enforcement Network (FinCEN), FinCEN invites you to participate in a survey assessing the value of two of our recurring publications:  The SAR Activity Review-Trends, Tips & Issues and The SAR Activity Review-By the Numbers.  This invitation has been sent to you in follow up to FinCEN’s prior e-mail notification.  A copy of that notice and this invitation can be found on FinCEN’s official website at http://www.fincen.gov/hotTopics.html

To participate in this completely voluntary survey, please click on the following link: https://svy.cfigroup.com/cgi-bin/qwebcorporate.dll?idx=HWGKEN   Please note that this link will direct you to a website hosted by the CFI Group, which FinCEN has commissioned to conduct this survey.  FinCEN has obtained permission from the Office of Management and Budget through control number 1090-0007 to conduct this survey in accordance with the Paperwork Reduction Act (44 U.S.C. § 3501-3520) and its implementing regulations (5 C.F.R. Part 1320).

Through the survey, we hope to learn more about your needs and identify opportunities to improve these products.  The results of the survey will be reported to FinCEN only in the aggregate; individual responses will be grouped anonymously along with those of other FinCEN customers.

Read more →

The Logical Consequence of Looting in Libya

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Things for anti-Qaddafi forces in Libya have gone from difficult to worse. Yet even after Director of National Intelligence James Clapper made the mistake of telling the truth about Qaddafi’s strength, there has been little discussion about this report from James Risen and Eric Lichtblau (one exception is Dan Drezner).

Here’s part of what Clapper said (the White House has backed away from his comments and Lindsey Graham has called for his resignation for telling the truth).

“Over time I think the regime will prevail,” acknowledged Clapper. “With respect to the rebels in Libya, and whether or not they will succeed or not, I think frankly they’re in for a tough row.”

Clapper added he did not believe Kadhafi, who has earned a reputation as a maverick, planned to step down after more than four decades in power.

“I don’t think he has any intention of leaving,” Clapper said. “From all evidence that we have, which I’d be prepared to discuss in closed session, he appears to be hunkering down for the duration.”

[snip]

Libyan air defenses, including radar and surface-to-air missiles, are “quite substantial,” Clapper explained.

“A very important consideration here for the regime is, by design, Kadhafi intentionally designed the military so that those select units willed to him are the most luxuriously equipped and the best trained.”

With that assessment–which was echoed in testimony by the head of DIA–in mind, consider Risen and Lichtblau’s description of the way Qaddafi has prepared himself financially to weather a rebellion. They describe that he has hoarded away “tens of billions” in Libya which will make the financial sanctions we’re using against him pretty useless.

The money — in Libyan dinars, United States dollars and possibly other foreign currencies — allows Colonel Qaddafi to pay his troops, African mercenaries and political supporters in the face of a determined uprising, said the intelligence officials, speaking on the condition of anonymity.

The huge cash reserves have, at least temporarily, diminished the impact of economic sanctions on Colonel Qaddafi and his government. The possibility that he could resist the rebellion in his country for a sustained period could place greater pressure for action on the Obama administration and European leaders, who had hoped that the Libyan leader would be forced from power quickly.

In other words, in addition to the tens of billions in assets Europe and the US have frozen, Qaddafi has still more loot available within his country, inaccessible to international sanctions. And that is one thing (the superior Russian arms he has that Clapper mentioned are another) that will allow Qaddafi to wait out the rebels.

Take a step back and think about the implications of this.

According to the story, Qaddafi probably started hoarding money in the 1990s. After the West lifted sanctions on Qaddafi in 2004, the process accelerated.

He has built up Libya’s cash reserves in the years since the West began lifting economic sanctions on his government in 2004, following his decision to renounce unconventional weapons and cooperate with the United States in the fight against Al Qaeda. That led to a flood of Western investment in the Libyan oil and natural gas industries, and access to international oil and financial markets.Colonel Qaddafi, however, apparently feared that sanctions would someday be reimposed and secretly began setting aside cash in Tripoli that could not be seized by Western banks, according to the officials. He used the Libyan Central Bank, which he controls, and private banks in the city. He also directed that many government transactions, including some sales on the international oil spot market, be conducted in cash. “He learned to keep cash around,” said the person with ties to Libyan government officials, who asked to remain anonymous for fear of putting them in jeopardy.

Then, in the weeks before the uprising broke out in Libya, Qaddafi continued to move money around to keep it accessible.

And with it, he is able to outfit and pay his elite troops, mercenaries from other countries, and loyal supporters. He can let oil just sit in the ground (as it did during the previous sanction period), because he doesn’t need to sell oil immediately to get money.

Because Qaddafi managed to loot shrewdly, he is largely immune from our non-military efforts to prevent him from committing genocide against his own people. His looted riches make him the match of most of his country, even backed by the international community.

And the thing is, we knew Qaddafi was doing this looting. Read more →