Shariah’s Black Box

The second issue is intent. The statute requires that the defendant have the intent to move the funds to promote one of the illegal activities enumerated. Terrorism is one of those criminal activities set out in Section 1956(c)(7). The lawyer representing a financial institution contemplating “purification” must consider the possibility that the charitable gift might be going to a charity with intimate connections to terrorists.[278] In this context, the first question confronting the prudent legal counsel is who directs the funds to the charitable contribution? Are the charities or universe of acceptable charities chosen by the Shariah authorities? Is this decision binding on the financial institution? The issue here is quite obvious. If the financial institution places this decision-making authority into the hands of the Shariah authorities it has retained, it is quite possible that any criminal “intent” or “purposes” connecting the Shariah authorities to these charities will be considered the financial institution’s. The criminal culpability in this case is not unlike that which was described above in the discussion of the Smith Act.

While many financial institutions involved in SCF attempt to distance themselves from the Shariah authorities[279], the question for the lawyer weighing in on these issues is who made the decision about which charities would be considered Shariah-complaint and thus recipients for the “purification” of funds. Moreover, if it turns out these charities have ties to terrorists or are implicated in the material support of terrorism, was this fact known[280] to any agent of the company?

Quite obviously, the criminal exposure arising from the “purification” process might lead the responsible legal counsel to ask the following questions about any list of potential charities: Are these well-known non-Muslim charities? If they are Muslim charities, have they been vetted and by whom? The three largest Muslim charities in the U.S.have all been implicated in financing terror and subject to administrative blocking orders wherein their assets were frozen and they were effectively shut down.[281]

The practice of Muslim charities funneling money to terrorists is so widespread and the problem so insidious the federal government keeps an updated list and brief on the dozens of such organization world wide.[282] But, it will not suffice for the legal advisor to simply determine that the charities are “well-known” Muslim charities and not currently listed as designated supporters of terrorism. At a minimum, the following queries would need to be undertaken: Who are the ultimate beneficiaries of the contributions? In other words, who or what is the ultimate recipient of the charities’ “good deeds”? Do these charities have overseas branches? Is the financial institution wiring the funds domestically or internationally? Who or what organization founded the organizations and who controls them today?

Once these questions are asked and answered with sufficient clarity, the legal advisor will need to be careful that what ever policies are put in place to avoid criminal exposure under Sections 1956 and 1957, the client continues to monitor these “charitable contributions” carefully.[283]

About David Yerushalmi

Mr. Yerushalmi is a lawyer specializing in litigation and risk analysis, especially as it relates to geo-strategic policy, national security, international business relations, securities law, disclosure and due diligence requirements for domestic and international concerns. David Yerushalmi has been involved in international legal and constitutional matters for over 25 years. David Yerushalmi is today considered an expert on Islamic law and its intersection with Islamic terrorism and national security. In this capacity, he has published widely on the subject including the principle critical scholarship on Shariah-compliant finance published in the Utah Law Review (2008, Issue 3). This work and the empirical investigation known as the Mapping Shariah project in America was the focus of a recent monograph published by the McCormack Foundation and the Center for Security Policy.