Читать книгу Anti-Money Laundering State Mechanisms - Michele Sciurba - Страница 9

The establishment of the BSA in 1970 marks the beginning of AML legislation in the US and has been an integral part of the fight against money laundering and organised crime, especially in relation to drug trafficking. Subsequently, the Money Laundering Control Act created the legal basis for severe penalties for money laundering offences in the 1980s²² and the 1990s²³.²⁴ The founding of the Financial Crimes Enforcement Network (FinCEN) in 1990 put a strong emphasis on cross-border tax evasion under the BSA.²⁵ Yet, after 9/11, the fight against terrorist financing became a central part of AML legislation in the US. For this reason, the USA Patriot Act 2001²⁶ contains several AML provisions²⁷, despite the focus of the Act on the fight against international terrorism. This includes the obligation of financial institutions to establish AML programs in section 352.²⁸ In 2003, the U.S. Treasury delegated the administration and enforcement of the BSA’s provisions to the Director of the FinCEN based on the Treasury Order 180-01²⁹ in the course of the inclusion of CTF into AML objectives. Today, the board of directors of individual financial institutions is in charge of maintaining an effective AML control structure in line with BSA requirements for the monitoring and reporting of suspicious activities. The internal control mechanisms must carry out risk assessments to monitor specific risk areas vulnerable to money laundering and terrorist financing. Thereby, all Know-Your-Customer (KYC) and customer due diligence requirements must meet the requirements of the AML rules under the BSA.³⁰

The US has taken a pioneering role in the fight against organised crime and tax evasion by creating international collaborations that have led to the adoption of UN Treaties, recommendations of the Council of the Organisation for Economic Co-operation and Development (OECD) and the founding of the FATF. After 9/11 painfully demonstrated the vulnerability of the Western world to terrorist attacks, all OECD countries responded with a massive expansion of governmental powers in order to fight against money laundering and terrorism financing, such as those in the Patriot Act 2001 in the US. To that end, the USA Patriot Act, the FinCEN and the Office of Foreign Assets Control (OFAC) established a new AML/CTF security architecture that makes extensive monitoring, reporting and controlling in financial institutions its highest priority. Moreover, this new system has considerably broadened the definition of “company activities” as compared to the activities that were previously subject to the provisions of the BSA.³¹ A similar expansion took place in the EU with the implementation of the Fourth Anti-Money Laundering Directive (4th AMLD)³², and in the FATF member states with the implementation of the FATF 40³³+ 9³⁴ Recommendations, respectively. Under the banner of waging a “war on terror”, bank secrecy was de facto abolished. Noticeably, the Patriot Act suspends the presumption of innocence and disregards the right to a fair trial and, thus, is largely incompatible with human rights law and international law. Although the USA Freedom Act 2015³⁵ has replaced large parts of the Patriot Act in the meantime, little has changed regarding this substantive incompatibility.