Shariah’s Black Box

[281] See supra note 278.

[282] See U.S. Department of the Treasury, Key Issues: Protecting Charitable Organizations, http://www.ustreas.gov/offices/enforcement/key-issues/protecting/charities_execorder_13224-a.shtml#a (last visited Jan. 31, 2008).

[283] Typically, good legal counsel, when developing a due diligence plan, will construct it such that it accounts for the threshold prima facie requirements of an indictment or other criminal charging process rather than an acquittal at trial.

[284] 108 Pub. L. No. 458, 118 Stat. 3638 (2004).

[285] 18 U.S.C. § 2339(A)(b) (2006).

[286] 395 F. Supp. 2d 79 (S.D.N.Y. 2005).

[287] Id. at 99.

[288] For the discussion of this point in an earlier appeal arising out of the same trial, see U.S. v. Sattar, 314 F. Supp. 2d 279, 301-02 (S.D.N.Y. 2004).

[289] See, e.g., Boim v. Quranic Literacy Inst., 291 F.3d 1000 (7th Cir. 2002).

[290] 28 U.S.C. § 1350 (2006).

[291] The ATS is a jurisdictional statute. See Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). It gives an alien plaintiff access to federal courts if there is an allegation that the alien suffered some harm that is in “violation of the law of nations or a treaty of the United States.” Id. In the Court’s opinion, it held that the norm of law violated must be “specific, universal, and obligatory.” Id. at 732. The U.S. laws against terrorism and the “material support of terrorism” are in accord with the Law of Nations and at the very least are “specific, universal, and obligatory.” See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980) (stating that torture is a violation of the Law of Nations); see also Torture Victim Protection Act of 1991, § 2(b), Pub. L. No. 102-256, 106 Stat 73 (codified at 28 U.S.C. § 1350).

[292] See supra note 15 and accompanying text; see also Islamic Financial Services Board, http://www.ifsb.org/index.php (last visited Jan. 31, 2008); Accounting and Auditing Organization for Islamic Financial Institutions, http://www.aaoifi.com/index.shtml (last visited Jan. 31, 2008).

[293] IFSB Standards, supra note 154 (footnotes omitted).

[294] See generally Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284 (1985); see also Robert Pitofsky, Chairman, Fed. Trade Comm’n, Self Regulation and Antitrust (Feb. 18, 1998), available at http://www.ftc.gov/speeches/pitofsky/self4.shtm (last visited Jan. 31, 2008); Debra A. Valentine, Gen. Counsel, Fed. Trade Comm’n, Industry Self-Regulation and Antitrust Enforcement: An Evolving Relationship (May 24, 1998), available at http://www.ftc.gov/speeches/other/dvisraelspeech.shtm (last visited Jan. 31, 2008).

[295] Id.

[296] See generally McMillen, supra note 5, at 458-67 (attempting to cure the lack of transparency, certainty, consistency, and predictability of SCF by arguing for the IFSB to propose Model Acts like the Model Acts propounded by the National Conference of Commissioners on Uniform State Laws).

[297] See Am. Soc’y of Mech. Eng’rs v. Hydrolevel Corp., 456 U.S. 556 (1982). In fact, the SCF financial institutions participate at various levels in setting the standards for the industry. See, e.g., AAOIFI Members, http://www.aaoifi.com/members.html (last visited Jan. 31, 2008). The private banks do not appear to play as significant a role in setting standards for the IFSB. See, e.g., IFSB Members, http://www.ifsb.org/index.php?ch=3&pg=7&ac=10 (last visited Jan. 31, 2008).

[298] For an interesting discussion of “rules collusion” as “Type III,” see Robert H. Lande & Howard P. Marvel, The Three Types of Collusion: Fixing Prices, Rivals, And Rules, 2000 Wis. L. Rev. 941, 949-84 (2000).

[299] Id. The anti-competitive effects of the rule-making monopoly currently enjoyed by the Shariah authorities go in some measure to the endogenous aspects of what Shariah itself says about who is qualified to be part of the Ulema or scholarly elite with any real authority. Historically and institutionally, because the Shariah authorities have used “consensus” and the limitation of new interpretations via the doctrine of the “closing of the gate of itjima” as a self-regulator, they have been extraordinarily successful in keeping the group over time true to the early doctrines developed after the formal schools had articulated them. See, e.g., Coughlin, supra note 24, passim.

[300] See Rutledge, supra note 113.

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.