Armed with the conviction that they are empowered by Congress to act as private attorneys general, a small group of plaintiffs' lawyers has opened a new front in the war on terror. Their targets are the major international financial institutions they say move large sums of money for terrorist organizations every day.
"There are a lot more dirty banks out there than people would like to believe," says Gary Osen, a member of Osen and Associate in Oradell, N. J. "The number that are actually caught is smaller." Since 2004, Osen and his co-counsel have launched three civil actions against international banks in federal courts: Linde v. Arab Bank, Weiss v. National Westminster Bank and Strauss v. Cr?(C)dit Lyonnais.
The cases, brought on behalf of terrorist-attack victims, seek damages under the Antiterrorism Act from banks that allegedly channeled money to the perpetrators. All three cases have survived motions to dismiss and are currently in discovery.
These suits highlight the increased pressure on banks to monitor where the money has been prior to a transaction and where it goes afterward. They also are testing how large a role civil lawsuits can play in the effort to stem the flow of money to terrorists.
A Weak Link
In the years before the Sept. 11 attacks, Osen had developed a specialty in Nazi-era restitution cases that gave him an understanding of international banking.
"Shortly after Sept. 11 there was a telethon on Saudi TV raising money for the terror campaign in Israel," he recalls. "It struck me that this might be a weak link in the terror network."
Osen knew that if money was being raised in Saudi Arabia and sent to terrorist organizations such as Hamas or Hezbollah, it would likely have to travel through New York because the U.S. dollar is the main currency of global terrorism.
"The Jihadis depend on dollars as the fungible currency--the universal adaptor," Osen explains. "Dollars are a reliably convertible currency."
The conversion process, called dollar- clearing, generally relies on major New York banks. Money is transferred from a bank in country A to New York, where it is converted into dollars before being transferred again to a corresponding bank in country B. Clearing the deal through a stable currency ensures that the fullest value reaches the end of the transaction. It also brings the transaction into U.S. jurisdiction.
The 1992 Antiterrorism Act allows victims to bring civil suit against anyone who provides material support to terrorists. A 1996 expansion of the law, the Antiterrorism and Effective Death Penalty Act, added extensive criminal penalties in response to the Oklahoma City bombing.
"That Congress saw fit to include a civil liability section in the Antiterrorism Act is a reflection of its view that you can't just rely on the
government to police the field," says Steven Steingard, a shareholder at Kohn Swift & Graf and a plaintiff's counsel in the cases.
For banks, the Antiterrorism Act sets a much higher bar for civil liability than the Bank Secrecy Act (BSA) or Patriot Act. This cause of action is not for simple mistakes or reporting negligence, but
for knowingly providing financial services to terrorists.
The first of the cases, Arab Bank, was brought on behalf of the family of John Linde Jr., who was killed by a bomb while escorting American diplomats in the Gaza Strip in October 2003.
Filed in 2004, the allegations gained traction in 2005 when the Office for the Comptroller of the Currency effectively shut down Arab Bank's New York branch. In August 2005 the Treasury Department's Financial Crimes Enforcement Network fined Arab Bank $24 million for related BSA violations.
On Sept. 2, 2005, a federal judge rejected a motion to dismiss Arab Bank. Within weeks the plaintiffs filed the actions against Cr?(C)dit Lyonnais and National Westminster, a division of the Royal Bank of Scotland. Currently the actions represent the families of 50 Americans killed in Palestinian Intifada attacks since 2000. Oral arguments in Arab Bank are scheduled for spring.
If successful these cases could present another layer of risk and responsibility for financial institutions.
"The duties to monitor and report have been around for 30 or 40 years. That's different from a duty to prevent payment to terrorists or to pay damages to victims," says Rachel Giesber Clingman, a partner at Sutherland Asbill & Brennan and an expert in terrorism-related litigation. "The duty of banks is becoming very broad, and the consequences are also shifting."
Giesber Clingman says banks are aware of the terror-related reporting requirements and most have taken steps to comply, such as implementing sophisticated electronic safeguards. Lists of Foreign Terrorist Organizations (FTO) and Specially Designated Global Terrorists (SDGT) are screened as a matter of course. But the sudden and dramatic increase in the scope of banks' responsibilities is creating anxiety.
"Obviously the peak of concern is in New York, where these cases are," she says. "But there's a heightened concern everywhere."
According to the plaintiffs' lawyers, banks should perform "look-backs."
The U.S. government continually updates the FTO and SDGT databases, and Israel and the EU maintain similar watch lists. Plaintiffs' counsel say the real test of compliance is not just cutting off parties that appear on the lists, but also looking back at previous transactions involving those parties to examine the money trail. Osen wants banks to take the information that is available and work back forensically--a far cry from simple BSA reporting requirements.
Steingard points out that although banks are first in the line of fire, they are by no means the only ones with risk.
"Any corporation that does business internationally should make sure none of its entities could be accused of trafficking with terrorists," he says. "That could be construed as materially supporting terrorism. This is true not just in the Middle East but around the world."
These are no idle words. In mid-March, Osen and his team opened a new litigation half a world away
from the Intifada. Julan v. Chiquita Brands International, filed in the Southern District of Florida, seeks
damages from the banana company on behalf of the families of five American missionaries kidnapped and murdered by the FARC.