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Anti-Terrorist Finance in the United Kingdom and United States Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2006 Anti-Terrorist Finance in the United Kingdom and United States Laura K. Donohue Georgetown University Law Center, [email protected] Georgetown Public Law and Legal Theory Research Paper No. 12-031 Georgetown Business, Economics and Regulatory Law Research Paper No. 12-010 This article won Stanford Law School's Carl Mason Franklin Prize for 2005-2006, for most distinguished written work in international law. This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/794 http://ssrn.com/abstract=2020455 27 Mich. J. Int’l L. 303-435 (2006) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Banking and Finance Law Commons, Comparative and Foreign Law Commons, and the National Security Law Commons DONOHUE FINAL TYPE.DOC 5/3/2006 3:39 PM ANTI-TERRORIST FINANCE IN THE UNITED KINGDOM AND UNITED STATES Laura K. Donohue* Foreword ............................................................................................ 303 I. Introduction......................................................................... 304 II. Development of the Law.................................................... 309 A. The United Kingdom ......................................................... 309 1. Northern Irish Paramilitary Funding........................... 310 2. The State Response..................................................... 325 B. The United States .............................................................. 349 1. U.S. Anti-terrorist Finance Provisions Pre-September 11........................................................ 350 2. Al Qaeda Funding....................................................... 359 3. U.S. Initiatives Post-September 11 ............................. 367 C. International Initiatives..................................................... 380 1. The United Nations..................................................... 382 2. The Financial Action Task Force ................................ 385 3. Regional and Bilateral Efforts .................................... 386 III. How Effective? ..................................................................... 390 A. Money Laundering Versus Terrorist Finance..................... 393 1. Suspicious Activity Reports........................................ 396 2. Pushing Money Out of the Regulated Sector.............. 403 3. Metrics Used to Gauge Success.................................. 405 B. Rights-Based Considerations ............................................ 406 1. Rights Impacted.......................................................... 406 2. Distinguishing Anti-terrorist Finance ......................... 409 3. Political and Humanitarian Costs ............................... 417 C. Future Concerns: The Electronic Sphere .......................... 428 IV. Conclusion............................................................................ 430 Foreword This Article adopts a two-tiered approach: it provides a detailed, his- torical account of anti-terrorist finance initiatives in the United Kingdom and United States—two states driving global norms in this area. It then proceeds to a critique of these laws. The analysis assumes—and * Laura K. Donohue is a Fellow at Stanford University’s Center for International Security and Cooperation. Special thanks to Robert Weisberg for providing detailed and thoughtful comments on the text and to Paul Lomio for his help in acquiring materials. Addi- tional suggestions from Mariano-Florentino Cuéllar, Barbara Fried, Tom Grey, Khalid Medani, Brandon Reavis, and Jake Shapiro are much appreciated. This Article forms part of a book-length project on counterterrorist law in the United States and United Kingdom, which will be coming out next year with Cambridge University Press. 303 DONOHUE FINAL TYPE.DOC 5/3/2006 3:39 PM 304 Michigan Journal of International Law [Vol. 27:303 accepts—the goals of the two states in adopting these provisions. It questions how well the measures achieve their aim. Specifically, it high- lights how the transfer of money laundering tools undermines the effectiveness of the states’ counterterrorist efforts—flooding the systems with suspicious activity reports, driving money out of the regulated sec- tor, and using inappropriate metrics to gauge success. This Article recognizes that both states consider the fight against terrorism to be partly military but also a matter of bringing certain democratic principles to bear. Critics have been quick to condemn some of the measures for their encroachments into civil liberties. My goal is not to measure the success of the laws according to any particular ideology but rather, ac- cepting the governments’ democracy-promoting goals, and the role these play in generating domestic and international support, to clarify which components do not appear to serve the states’ aims. I. Introduction Preventing terrorist financial flows proves a nearly impossible task. The money comes from enterprises that range from legitimate businesses (e.g., taxi companies and donations to charitable organizations) to ille- gitimate activities like smuggling, intellectual property theft, and drug trafficking.1 Terrorists move currency through complex wire transfers and unregulated alternative remittance systems. They physically carry it across international borders. They transfer cash into high value and hard 2 to detect commodities—such as diamonds, tanzanite, and sapphires. 1. See, e.g., Financial Action Task Force on Money Laundering, Report on Money Laundering Typologies 2002–2003 (Feb. 14, 2003) [hereinafter 2003 Financial Action Task Force Report]; The Organised Crime Task Force, Annual Report 2005: Serious and Organised Crime in Northern Ireland [hereinafter OCTF 2005 Report], available at http://www.octf.gov.uk/index.cfm/section/publications/page/ publicationList/viewArchives/true/month/Jun/year/2005; John Roth, Douglas Greenburg & Serena Wille, National Commission on Terrorist Attacks Against the United States, Monograph on Terrorist Financing: Staff Report to the Commission, available at http://www.9-11commission.gov/staff_statements/911_TerrFin_Monograph.pdf [hereinafter Staff Report]; Robert Block & Daniel Pearl, Underground Trade: Much Smug- gled Gem Called Tanzanite Helps Bin Laden Supporters, Wall St. J., Nov. 18, 2001, at A1; Thomas Catan & Michael Peel, U.S. Suspects Al-Qaeda African Diamond Link, Fin. Times (London), June 30, 2004, at 11; Douglas Farah, Al-Qaeda Cash Tied to Diamond Trade, Wash. Post, Nov. 2, 2001, at A1; Mark Huband, Report Links Al-Qaeda with Diamond Trade, Fin. Times (London), Apr. 17, 2003, at 8; Pat Robertson Partner Charles Taylor Funded Al- Qaeda, Report Says, Church & St., Feb. 2003, at 14. 2. See, e.g., Amelia Hill, Bin Laden’s $20 M African “Blood Diamond” Deals, The Observer (London), Oct. 20, 2002; available at http://www.observer.co.uk/in; Robert Looney, Hawala: The Terrorist’s Informal Financial Mechanism, 10 Middle E. Pol’y 164 (2003); Ronald R. Wilson & D.E. Glanczand Jr., Positive Trends in the Fight Against Money DONOHUE FINAL TYPE.DOC 5/3/2006 3:39 PM Winter 2006] Anti-Terrorist Finance 305 And the amounts involved may be nearly impossible to detect. The Na- tional Commission on Terrorist Attacks Upon the United States (September 11 Commission) estimated that the 1998 East African em- bassy attacks required just $10,000. The 2002 Bali bombings cost al Qaeda only $20,000. Despite the devastation caused by the September 11, 2001, attacks, the total amount spent on the actual operation ran be- tween $400,000 and $500,000.3 Such estimates are hardly unique to al Qaeda: the Police Service Northern Ireland (PSNI) assesses the Provi- sional Irish Republican Army’s (PIRA) entire running costs at just £1.5 million per year. The Ulster Defence Association, perhaps the largest Loyalist paramilitary group, requires only £500,000.4 Despite these difficulties, both the United Kingdom and the United States consider the interruption of terrorist finance one of their top pri- orities5—and with good reason: intercepting terrorist money may save lives. Diminished funds may reduce terrorist organizations’ ability to recruit skilled members. As the average level of expertise of those Laundering, Am. Banker, June 25, 2004, at 12; Karen De Young & Douglas Farah, Infighting Slows Hunt for Hidden Al-Qaeda Assets, Wash. Post, June 18, 2002, at A1. 3. Staff Report, supra note 1, at 131. This number excludes overhead costs, such as recruitment and training. For discussion of the limited value of money to terrorists, see Rex A. Hudson, The Sociology and Psychology of Terrorism: Who Becomes a Terrorist and Why 14–19 (1999); and Raphael Perl, Terrorism, the Future, and US Foreign Policy, Issue Brief for Congress IB95112, at 4 (Apr. 11, 2003). This is not to say that money plays no role in terrorism. See, e.g., President’s Fiscal Year 2000 Budget: Hearing Before the Subcomm. for the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies, of the Sen. Comm. on Appropriations, 106th Cong. (1999) (statement of Louis J. Freeh, Director, Federal Bureau of Investigation), available at http://www.fbi.gov/congress/congress99/ freehct2.htm; Staff Report, supra note 1, at 144; James Adams, The Financing of Terror 165 (1986); Sean O’Callaghan, The Informer 159–60 (1998); Mathew A Levitt,
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