Shariah’s Black Box

[261] 31 U.S.C. §§ 5318 et seq. (2006).

[262] See generally Eric J. Gouvin, Bringing Out the Big Guns: The USA Patriot Act, Money Laundering, and the War on Terrorism, 55 Baylor L. Rev. 955 (2003).

[263] See, e.g., CairChicago.org, Action Alert (Dec. 1, 2005), available at http://www.cairchicago.org/actionalerts.php?file=aa_blog12012005 (last visited Jan. 31, 2008) (announcing a special Internet web log site opposing the Patriot Act on “civil rights” grounds, published by the Council on American-Islamic Relations (CAIR)).

[264] See Gouvin, supra note 262, at 976-77.

[265] Federal Financial Institutions Examination Counsel, Bank Secrecy Act/ Anti-Money Laundering Examination Manual 8 (2006), available at http://www.ffiec.gov/pdf/bsa_aml_examination_manual2006.pdf (last visited Jan. 31, 2008).

[266] See Gouvin, supra note 262, at 967-69.

[267] Id. at 976-77.

[268] “FISA” is the Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95- 511, 92 Stat. 1783 (codified as amended at 50 U.S.C. §§ 1801-1862), which was amended materially by the Patriot Act. See USA Patriot Act, § 218, 115 Stat. 291 (amending 50 U.S.C. §§ 1804(a)(7)(B) & 1823(a)(7)(B)). A Fifth Amendment “criminal” warrant typically requires a showing of probable cause before a judge. The FISA requirements for a warrant, which are directed at foreign threats, even if on domestic soil, has relaxed standards. For a thorough explanation of these standards, see Richard Henry Seamon & William Dylan Gardner, The Patriot Act and the Wall Between Foreign Intelligence and Law Enforcement, 28 Harv. J.L. & Pub. Pol’y 319 (2005).

[269] See David Hardin, The Fuss Over Two Small Words: The Unconstitutionality of the USA PATRIOT Act Amendments to FISA Under the Fourth Amendment, 71 Geo. Wash. L. Rev. 291, 291 & n.395 (2003).

[270] See generally Montgomery E. Engel, Donating “Blood Money”: Fundraising For International Terrorism By United States Charities and the Government’s Efforts to Constrict the Flow, 12 Cardozo J. Int’l & Comp. L. 251 (2004). Specifically, Engel writes that:

The authority of the President to issue both Executive Orders 12,947 and 13,224 originates in the International Emergency Economic Powers Act (“IEEPA”). Upon declaration of a national emergency in response to an “unusual and extraordinary threat,” IEEPA grants the President broad authority to govern the disposition and block the assets of “any person, or with respect to any property, subject to the jurisdiction of theUnited States.” The Supreme Court has upheld IEEPA’s broad grant of authority to the President in its form as amended in 1977. The Court refused to limit the President’s authority to continued blocking or freezing but ensured that it extended to the permanent disposition of assets suggested by IEEPA’s congressional grant of the power to “transfer,” “compel,” and even “nullify” assets.  Underlying this deferential grant, the Court recognized a legitimate and discretionary exercise of the President’s power to govern foreign policy by using frozen assets as a “bargaining chip” in dealing with a hostile country.

Id. at 258-59 (footnotes omitted). The role of Muslim charities in financing terror has been discussed in Congressional testimony as well. See Role of Charities and NGOs in the Financing of Terrorist Activities: Hearing Before the Subcomm. on International Trade and Finance of the S. Comm. on Banking, Housing, and Urban Affairs, 107th Cong. (2002) (statement of Matthew Levitt, Senior Fellow, Washington Institute for Near East Policy), available at http://banking.senate.gov/02_08hrg/080102/levitt.htm (last visited Feb. 1, 2008). Military strategists have also looked at this modality for furthering the terrorist war aims. See Major Wesley J. L. Anderson, Disrupting Threat Finances: Utilization of Financial Information to Disrupt Terrorist Organizations in the Twenty-First Century (November 4, 2007) (unpublished thesis, School of Advanced Military Studies, U.S. Army Command and General Staff College), available at http://stinet.dtic.mil/cgi-bin/GetTRDoc?AD=A470454&Location=U2&doc=GetTRDoc.pdf (last visited Feb. 1, 2008).