Dealing with hawala: informal financial centers in the ethnic community.

In the immediate aftermath of September 11, 2001, many experienced intelligence officers did not understand the concept of hawala, and few knew what it actually represented in the context of money laundering and terrorism financing. Then, as today, hawala constitutes an important economic aspect of life in America's Middle Eastern and Southeast Asian communities. (1) Law enforcement officers who work in these locations or investigate white-collar crime or terrorism financing should know about and understand how to deal with hawala and other nontraditional financial centers.

[ILLUSTRATION OMITTED]

How Hawala Works

Hawala comprises one type of the informal value transfer system (IVTS) used mostly by members of an ethnic community to send money around the world. Other forms of IVTS, which also can be elements of hawala, include physically transporting (smuggling) currency and stored-value transfers (chits). Hawala does not involve the immediate movement of any negotiable instrument nor are actual funds immediately transmitted anywhere. An ancient system that actually predates banking, it works in an analogous manner to a more formal system of "wiring" money. (2) When individuals wire money, they contact a legitimate money-wiring service and provide an amount of funds they wish to send to another party plus a fee. If they send money overseas, they generally pay a recognized margin or exchange rate at which they purchase funds in that country's currency. Of course, funds are not actually "wired" to the other person, and nobody physically sends money anywhere at that time. Instead, one vendor accepts the cash from the sender, and another gives the same amount to the recipient. Then, the two vendors settle at a later time.

In more legitimate operations, these settling transactions almost always involve the transfer of funds from one account to another at banking institutions. With hawala, however, either a transfer of funds to a bank or a number of less formal settling transactions may occur. Hawaladars (i.e., operators) may travel overseas on a regular basis to settle accounts in person with their contacts. They may have other business interests with these intermediaries that involve inventory and merchandise, which they can manipulate to reflect the hawala transactions. For example, hawaladars can trade premium goods, such as phone cards, at a discount to represent the value of earlier transactions.

Just like legitimate money-wiring operations, hawala often is contained within another community business, such as an ethnic market or travel agency, or run by freelancers who operate autonomously in the community. The global scope of IVTS and hawala is impossible to calculate. An International Monetary Fund/World Bank estimate puts worldwide IVTS transfers on the order of tens of billions of dollars annually. (3)

Money Laundering

Hawala is not necessarily synonymous with money laundering or even white-collar crime or terrorism financing. Money laundering, by its very nature, involves attempting to make "dirty" money, often via drug activity or organized crime wherein criminals generate sums of wealth (usually cash) that cannot be easily explained or managed, "clean." So, they transfer the money in and out of different accounts, banks, and various legitimate and partially legitimate businesses. This supposedly creates ambiguity as to its origin and lends legitimacy to otherwise criminal proceeds. It is significant to recall that money laundering, per se, generally is not, in and of itself, a criminal act. (4) Most money-laundering statutes require evidence of a specific underlying enterprise, such as drug trafficking or other criminal activity, to successfully prosecute the money-laundering offense.

Terrorism Financing

An interesting paradox surrounds the financing of terrorism. First, cash proves as important, if not more so, to successful terrorist operations as it does to any other prosperous venture, legal or otherwise. But, at the opposite end of the equation, terrorist operations are not prohibitively expensive. After all, a teenage terrorist who straps on explosives and detonates himself in a Tel Aviv restaurant killing dozens costs little, yet his actions prove effective.

[ILLUSTRATION OMITTED]

Ahmed Ressam, an Algerian loosely affiliated with al Qaeda, had lived illegally in Canada for several years when he tried to enter the United States with explosives in the trunk of his car. He was destined for Los Angeles International Airport where he intended to set off an explosion as part of a larger New Year's millennium terrorism plot. His overseas handlers had instructed him to finance himself by burglarizing hotel rooms, stealing credit cards, and committing other petty offenses. (5) Timothy McVeigh and Terry Nichols used the proceeds from several home burglaries and gun show sales to buy farm-grade fertilizer they mixed with fuel oil to bomb the Murrah Federal Building in Oklahoma City.

According to the 9/11 Commission, the entire cost of the September 11 plot was between $400,000 and $500,000. Considering that close to two dozen individuals (the 19 hijackers plus overseas support elements) were likely involved over an 18-month to 2-year period, the funds needed for significant international travel, terrorist-camp training, flight school, and living expenses only approximated $12,000 per person, per year.

The 9/11 Commission also found no evidence of any foreign government knowingly helping to finance the operation; instead, most of the funds were derived from donations to charity. While some media sources have claimed Saudi Arabia was responsible for providing a large amount of terrorism funding in general and particularly for the September 11 plot, a specific dollar-for-dollar nexus does not exist. While the royal family in Saudi Arabia maintains a complex relationship with both its citizens and conservative religious clerics and charities in the country, proving the government provided funds to these religious leaders and charities knowing that the money would eventually finance terrorism never has been established. (6) Moreover, while the 9/11 Commission found that al Qaeda used hawala to move money in and out of Afghanistan, it also determined that the group did not employ hawala in any way to fund the 19 hijackers or the events surrounding the September 11 attacks. (7)

Hawala in the Community

People use hawala for any number of reasons; many of these are legitimate, while others are not. Investigators must understand that in the Middle Eastern community, the importance of family and other trusted relationships cannot be overemphasized. Often, a member of the community refers to another as belonging to a particular family when, in fact, the relationship is so distant that it is legally insignificant. These family and clan relationships perhaps are more significant than in any other ethnic community in the United States. At the same time, many members have relatives in their home countries they support financially.

Within these Middle Eastern and Southeast Asian communities, members trust local businessmen, including the hawaladar, a great deal. That trust is one element that invites the use of hawala. A fictional example of a member of the community employed in violation of his tourist or student visa can help illustrate the system. The young man does not have a social security number and wishes to send money to his homeland, a country where currently it is unlawful to do so, to support relatives. He has four immediate incentives to use a local hawaladar, rather than a traditional bank or money-wiring service.

1) He is violating the terms of his visa by working in the United States.

2) He does not have a social security number and may be working without paying taxes.

3) Treasury regulations do not allow him to legally send money to his country.

4) A hawaladar probably is more economical than other more legitimate means of moving money because of lower finance charges and exchange rates.

Passed in 2001, the United and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act (8) called on the U.S. Department of the Treasury to determine whether Congress should stiffen laws relating to IVTS in the United States. The report to Congress concluded that although law enforcement had tools at its disposal for dealing with IVTS (hawala), further education was a key element. "The U.S. approach of regulating informal value transfer activity is preferable to outlawing the activity altogether, a course chosen by some nations. Attempting to outlaw the IVTS ultimately deprives law enforcement of potentially valuable information and drives the informal remittance providers further 'underground.' Outlawing the activity also deprives the mostly law-abiding IVTS customers of the primary channel through which they transfer funds." (9)

[ILLUSTRATION OMITTED]

Techniques for Law Enforcement

As with any crime problem, a keen understanding of who is who in the community constitutes one of the keys to successfully dealing with hawala. Officers and investigators need to use their sources of information to determine which merchants and individuals in the community act as IVTS brokers. When suspicion arises that these entities are employing IVTS to facilitate drug trafficking, terrorism financing, or money laundering, law enforcement can exploit a host of local, state, and federal offenses these enterprises are committing.

Regardless of how well-meaning or "community oriented" hawaladars are, they violate technical infractions each time they engage in a financial transaction. The federal Bank Secrecy Act (BSA) (10) requires any person or group acting as a money-services business (MSB) to adhere to numerous reporting and record-keeping requirements, most or all of which hawaladars routinely ignore. Additionally, these businesses, by law, must register with the Department of the Treasury's Financial Crimes Enforcement Network (FinCEN), which, again, they usually disregard. Furthermore, MSBs are required by law to produce suspicious activity reports (SARs) for transactions over $2,000 that appear, or should appear to them, to involve illegal activity. Finally (although not all-inclusively), investigators should note that Title 18 of the U.S. Code makes it a crime to operate an MSB in the absence of compliance with applicable state licensing requirements. (11) Undoubtedly, these enterprises also do not appropriately follow these regulations.

A misperception exists that hawaladars do not keep records; this is false. Many keep extensive documentation because the settling of accounts often takes place well into the future. What investigators need to look for are unconventional records or ones kept in a language other than English. Also, because hawaladars barter in other than cash products, investigators should check for large transactions involving food stamps, lottery tickets, and phone cards, all of which can be alternate forms of currency in the community. (12) Of course, phone records and those from Internet service providers, as well as legitimate bank documents, can be valuable because they show who the hawaladar has dealt with. Investigators should focus on contacts and transactions that involve Great Britain, (13) Switzerland, and Dubai as these comprise major financial centers with strict financial secrecy laws. (14) Moreover, even when hawaladars are not knowingly involved in serious illegal activity, their nonconforming business practices put them in positions where they could assist law enforcement with the real criminal element in a community, especially those dealing in narcotics, laundering money, or financing terrorism.

Conclusion

The hawala concept is not prohibitively complicated. Its deviance from conventional banking and financial institutions, together with its place in the Middle Eastern and Southeast Asian communities, can pose a challenge for investigators experienced in more traditional financial crimes, including money laundering and terrorism financing. However, employing some specific techniques, coupled with a solid community intelligence base, should assist them with hawala and nontraditional financial centers.

Endnotes

(1) These locales often include individuals of Indonesian, Indian, Palestinian, and Egyptian nationalities.

(2) Patrick M. Jost and Harjit Singh Sandhu, Interpol General Secretariat, The Hawala Alternative Remittance System and Its Role in Money Laundering (Lyon, January 2000).

(3) Secretary of the U.S. Department of the Treasury, Report to the Congress in Accordance with Section 359 of the USA PATRIOT ACT.

(4) While transferring money between different accounts and banks may not constitute money laundering per se, investigators are encouraged to look carefully at all federal, state, and municipal laws and regulations and consult with financial crimes prosecutors as activities, such as "structuring" and improper record keeping, in fact, may constitute specific criminal conduct sufficient to establish money-laundering charges.

(5) National Commission on Terror Attacks Upon the United States, The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States (Washington, DC, 2004), 175.

(6) Ibid., 170-171.

(7) Ibid., 499 (note 131 to chapter 5).

(8) PL 107-56, October 26, 2001, 115 Stat 272.

(9) Supra note 3.

(10) See 31 USC 5311.

(11) Supra note 3.

(12) Recently, some companies have begun issuing traditional credit cards that can be legally obtained anonymously. Customers prepay a fixed amount for the cards then use them at retailers (currently, online auctions), which accept the card anonymously as payment.

(13) For additional information, see Marc D. Ferbrache, "Offshore Financial Centers: The Channel Islands and the Isle of Man," FBI Law Enforcement Bulletin, February 2001, 10-15.

(14) Supra note 2.

By JAMES CASEY, M.A.