There has been much anger in the financial press about JPMorgan having to pay a multi-billion dollar fine. It has been strangely charged that this is a government attack on capitalism. No, actually the bank broke the law and failed over and over again to act in an intelligent manner about its investments or its clients. But Gretchen Morgenson is absolutely right. This kind of fine isn’t really getting tough with the banks. It’s merely carrying on the long tradition of banks paying some proportion of the losses they caused while criminal prosecution as individuals is off the table.
There is no real penalty here. The billions are just the cost of doing business. The bank has paid out fines before. The bank will pay out fines again. The fun and enormous profits of reckless speculation will remain.
There will only be an effective deterrent when wrongdoers are punished personally by fine and imprisonment.
You can’t attack prevent crime by attacking organizations with minor financial penalties. You could effectively if you were willing to pull the corporate charter from the bank and destroy it, or seize all of its assets. But I see no willingness to do that. The only effective tool present is the power to prosecute individuals.
It is bizarre to tell students to act with business ethics when they can read everyday in the news of the incredible money being made by individuals under the cover of banks deliberately, knowingly breaking the law. But even that is eclipsed by the simple and horrible fact that we do not impose penalties on individuals.
Without justice, how we expect people less favored than bank executives to believe in the law?
Why JPMorgan May be Getting off Easy
In a criminal investigation, JPMorgan Chase is facing action from federal authorities who suspect that the bank turned a blind eye to Madoff’s Ponzi scheme. That’s yet another headache in a week of migraines for America’s largest bank; last Friday JPMorgan Chase reached a tentative $13 billion settlement with federal prosecutors for its alleged manipulation of mortgage securities, which helped trigger the Great Recession. There may be more pain to come as the megabank faces litigation on a number of fronts.
And JPMorgan Chase is not alone – it is one of several banks being investigated by the government for mortgage fraud. While many headlines in the financial press accuse the government of conducting a witch hunt, Pulitzer Prize-winning New York Times columnist Gretchen Morgenson offers a different perspective: “If the Justice Department were being tough on Wall Street they would be talking about bringing criminal cases against individuals who helped to perpetrate this immense crisis.” she said. Morgenson adds that the investigations into JPMorgan Chase show that it and many other financial institutions are still ‘too big to fail,’ which means taxpayers could once again be forced to bail them out.
Feds To Investigate Cleveland Police After 137 Shots Fired In 59-Car Chase | ThinkProgress
On November 30, 2012, what began as a routine police drug patrol in Cleveland, Ohio ended in an unauthorized 59-car police chase in which 137 shots were fired and two unarmed individuals were left dead. The department-wide malfunction has prompted an investigation by the Department of Justice into the city police department’s use of excessive force and the “the adequacy of CPD’s training, supervision, and accountability mechanisms.”
In spite of a police policy that no more than 2 vehicles be involved in a chase, more than 59 vehicles joined the pursuit “without the sector supervisor’s knowledge or permission,” according to a state investigation of the incident. The chase began after a car pulled over for a turn signal violation drove away, and was later identified by several other officers driving at a high speed. Due to faltering communication, and the misimpression that the individuals were armed and fired a shot, the incident escalated until one-third of the police department had joined the chase.
Heymann took the lead in the much-criticized effort to imprison Swartz, who committed suicide in January, and was the attorney who handled the case on a day-to-day basis, reporting to U.S. Attorney Carmen Ortiz. Swartz’ attorney Eliot Peters has filed a complaint with the Department of Justice’s Office of Professional Responsibility (OPR), a step that indicates just how egregious the defense team considers Heymann’s professional behavior. A redacted version of the letter was obtained by The Huffington Post.
In the document, Peters argues that Heymann withheld exculpatory evidence. At issue was whether the federal government had properly obtained a warrant to search Swartz’ computer and thumb drive. Peters argued that the government failed by waiting more than a month to obtain the warrant. Heymann countered that he couldn’t get a warrant because he didn’t have access to the equipment. But an email in Heymann’s possession, which was written to Heymann himself, showed that assertion to be untrue.
In an email that was not provided to the defense team until the last minute, Michael Picket, a Secret Service agent, wrote to Heymann on Jan. 7, “I am prepared to take custody of the laptop anytime after it has been processed for prints or whenever you feel is appropriate. As far as I know no one has sought a warrant for the examination of the computer, the cell phone that was on his person or the 8gb flash drive that was in his backpack.” It would be more than a month before Heymann obtained a warrant -– far too long, in Peters’ estimation, which means that the evidence found on the laptop could have become inadmissible.
Playing hardball to win suggests a personality that doesn’t take defeat well. There is a certain strangeness to considering dispensing justice a matter of winning and losing. Certainly when you try a case involving a serious crime, a prosecutor wants to win, but there are many areas of the law where there is considerable ambiguity. In law school they gave us the example of a man threatening to kill another while waiving a loaded pistol, that’s aggravated assault but so is a homeless drunk threatening a man with a pointed stick. These kinds of things call for prosecutorial judgment. Winning is only an aspect of a prosecutor’s duty, he also has a higher calling to the Constitution and justice itself.
Chalking up kills is for fighter pilot’s not prosecutors.
In an appalling 5-4 ruling, the U.S. Supreme Court confirmed and even strengthened prosecutorial immunity, extending it from personal immunity to a stronger form of agency immunity as well. This means the government can now do anything and they will not be subject to the laws – EVER! The case is Connick v Thompson (2011), where Connick is the former Orleans Parish District Attorney Harry Connick, Sr. (the singer’s father) and Thompson is John Thompson, a man falsely convicted of murder because Connick’s office hid a report that ultimately exonerated him so the prosecutor would not have to admit a mistake. On top of that – they were trying to execute an innocent man to cover up their misconduct.
The prosecutors admitted that they deliberately withheld evidence. There is no controversy over whether they violated the law and their ethical obligations and railroaded an innocent man and they were prepared to legally murder him since he was only weeks away from being executed for that crime he did not commit when the report that proved his innocence was finally discovered and used to overturn his conviction. Is this not attempted murder?
District judge Ken Anderson of Williamson County, Texas is now formally under investigation for his alleged role in a gross injustice as a prosecutor. It is an all-too-rare case where a former prosecutor is actually called to account for an injustice. In this case, an innocent man, Michael Morton (shown here), now 58, was wrongly convicted in 1987 for the murder of his wife. Prosecutors failed to turn over key evidence showing that his son clearly stated that it was not his father. Instead, they took a tragic murder of a mother and magnified it by incarcerating the grieving father. Anderson was later selected as “Prosecutor of the Year.” We previously discussed the case.
The prosecution didn’t just show poor judgment in its prosecution of Aaron. In addition, Steve Heymann actively broke the law and violated Aaron’s constitutional rights. Below, you can read the details, but the basic outline is that Heymann withheld evidence that would have been helpful to Aaron’s defense, and that he was legally and ethically bound to hand over from the very beginning of the case, until December 2012 — almost two years after Aaron was arrested.
A few additional notes to the release: Heymann appears to be lying to the DOJ, or else the DOJ is lying to Congress, about when Heymann turned over the exculpatory evidence in question. Ryan Grim reports that DOJ is insisting that Heymann turned over the exculpatory evidenceduring the status conference in December, rather than after. But I was there, and that is a lie.
I rarely agree with Chuck Grassley, but when he calls this “stunning,” he couldn’t be more right. This is the ultimate Big F’ing Deal: the nation’s top prosecutor openly admitting that some people and institutions are so big, wealthy, and powerful that it is the policy of the United States to hesitate to prosecute them no matter how terrible their crime. And it isn’t just American banks, either: HSBC, while operating here, is a foreign-based bank.
Look, that this is the policy of the U.S. Justice Department has been pretty obvious for quite a while. The unwillingness to prosecute the big banks in spite of some of the most egregious and obvious financial fraud in American history in the run-up to 2008’s financial collapse has become legendary. But the HSBC case, where thousands of emails over many years along with a great deal of other evidence proved beyond a shadow of a doubt that the bank was laundering money for some of the most murderous and evil drug cartels and terrorists on the face of earth, made it crystal clear that once your bank becomes a certain size, the DOJ considers you beyond prosecution. For anything. Too Big To Jail, to the hundredth power. And the penalty they did get? A fine worth approximately five weeks worth of profits — after raking in massive profit from these drug cartels and terrorist-linked groups for many years.
So, yes, it has been obvious that this is the unspoken policy of the DOJ. Now, in front of a Senate committee, fully on the record, it is the official stated policy of the American government that if your bank is big enough, and the judgment is that prosecuting you will have a negative impact on the economy, DOJ will be “inhibited” in, and will find it “difficult,” to prosecute you.
We have truly crossed the Rubicon here. This is a tragic moment in the history of our nation, that we are willing to say on the record to some of our richest and powerful people and institutions that no matter what you do, you will not be prosecuted. What kind of society have we become? How corrupt are we as a nation?
Judge acquits Occupy Philadelphia protesters in bank sit-in – Philly.com
They were charged with “defiant trespass.”
But after a Common Pleas Court jury on Tuesday acquitted the 12 Occupy Philadelphia protesters arrested in a 2011 bank sit-in, the trial judge shook their hands and called them the “most affable group of defendants I’ve ever come across.”
“I think what this really shows is that when the people of Philadelphia make a decision, they want someone accountable,” said Aaron Troisi, a 26-year-old working toward a master’s degree in education at Temple University. “Accountability and justice is not what they experienced with banks like Wells Fargo.”
Troisi and 11 fellow Occupy demonstrators were acquitted of conspiracy and defiant trespass in the Nov. 18, 2011, sit-in inside a Wells Fargo Bank branch at 17th and Market Streets in Center City.
From further down in the article:
Last July, Wells Fargo, the nation’s largest mortgage lender, agreed to pay $175 million to settle allegations by the U.S. Justice Department that independent brokers originating its loans charged higher fees and rates to minority borrowers than they did to white borrowers with similar credit risks.
The verdict left the Occupy protesters with a sense of vindication.
“If this jury has found us innocent, then it must mean that Wells Fargo is guilty,” said 71-year-old Willard R. Johnson, one of the 12 on trial.
“We have proof of the importance of free speech in a democracy, especially taking on corporate power,” said defense attorney Paul Hetznecker, one of seven lawyers who represented the protesters without charge. “It’s about speaking truth to power and it’s part of a long-standing tradition in this country.”
Eric Holder Admits Some Banks Are Just Too Big To Prosecute
When the Attorney General of the United States admits some banks are simply too big to prosecute, it might be time to admit we have a problem — and that goes for both the financial and justice systems.
Eric Holder made this rather startling confession in testimony before the Senate Judiciary Committee on Wednesday, The Hill reports. It could be a key moment in the debate over whether to do something about the size and complexity of our biggest banks, which have only gotten bigger and more systemically important since the financial crisis.
“I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy,” Holder said, according to The Hill. “And I think that is a function of the fact that some of these institutions have become too large.”
Holder’s comments don’t come as a total surprise. His underlings had already made similar confessions to The New York Times last year, after they declined to prosecute HSBC for flagrant, years-long violations of money-laundering laws, out of fear that doing so would hurt the global economy. Lanny Breuer, formerly in charge of doling out the Justice Department’s wrist slaps to banks, told Frontline as much in the documentary “The Untouchables,” which aired in January.
Swartz Charged with Many Crimes to Force Guilty Plea
Aaron Swartz: Eric Holder calls Aaron Swartz case “a good use of prosecutorial discretion.”
Earlier this morning, the Senate Judiciary Committee grilled Attorney General Eric Holder on topics ranging from drones to marijuana policy. About an hour into the oversight hearing, Sen. John Cornyn, a Republican from Texas, asked Holder about the DOJ’s prosecution of Aaron Swartz, the programmer and Internet activist who committed suicide in January. Among other things, Swartz had been charged under the Computer Fraud and Abuse Act for using MIT’s computer network to unauthorizedly download millions of academic journal articles from a subscription database called JSTOR. He was facing a maximum sentence of 50 years in prison.
The DOJ may have only intended for Swartz to go to jail for a couple months. It’s clear, though, they would’ve had no problem with sending him away for a few years, too. I think Sen. Cornyn put it nicely: “If you’re an individual American citizen, and you’re looking at criminal charges being brought by the United States government, with all of the vast resources available to the government, it strikes me as disproportionate, and one that is basically being used inappropriately, to try to bully someone into pleading guilty to something that strikes me as rather minor.”
Holder claimed that the Department of Justice had conducted “a good examination” of the Swartz prosecution, and came away from it satisfied that there had been no prosecutorial misconduct. And maybe there wasn’t, if you’re judging the prosecutors on whether they deviated from standard DOJ practice. But there is a flaw in the system if the DOJ’s best route to get the sentence it’s looking for is to threaten defendants with disproportionate prison terms. That might be an effective prosecutorial tactic, but that’s not justice.
So, a federal prosecutor stacks charges on what should be a single offense in order to get someone to plead guilty. Is that justice? Does it bear any resemblance to justice?
Swartz had a strong defense but by the stacking the charges the feds had placed him in a situation where if he lost he could serve fifty years.
It sounds to me that if you wanted to, as a federal prosecutor, you could force people to settle even if they were innocent – just stack the charges so that the risk of losing will put in jail for decades then offer a few months. You generate another trophy for that wall and don’t actually have to go to court and take your case to a jury.
That’s not justice, it’s just a use of overwhelming government resources to force the win.
Tell me, if I put you in a situation like Swartz where you could serve up to fifty years in prison and they offer you three to six months, and you have done nothing, would you take the deal?
Are you willing to rely on your innocence in court, and risk fifty years? You have to think about it, don’t you?
Let’s make it a little tougher. You can’t afford your own attorney and the government is willing to spend several million dollars and thousands of hours investigating you. Every corner of your life will be turned upside down. You’ll go bankrupt from fees. You probably won’t be able to hold a job because of the regular court appearances and your reputation just went through the shredder.
Do you still want to plead innocent or will you take the three months just to make it stop?
Information is power. But like all power, there are those who want to keep it for themselves. The world’s entire scientific and cultural heritage, published over centuries in books and journals, is increasingly being digitized and locked up by a handful of private corporations. Want to read the papers featuring the most famous results of the sciences? You’ll need to send enormous amounts to publishers like Reed Elsevier.
There are those struggling to change this. The Open Access Movement has fought valiantly to ensure that scientists do not sign their copyrights away but instead ensure their work is published on the Internet, under terms that allow anyone to access it. But even under the best scenarios, their work will only apply to things published in the future. Everything up until now will have been lost.
That is too high a price to pay. Forcing academics to pay money to read the work of their colleagues? Scanning entire libraries but only allowing the folks at Google to read them? Providing scientific articles to those at elite universities in the First World, but not to children in the Global South? It’s outrageous and unacceptable.
Not only was Swartz a computer science genius, he was also heavily devoted to freedom of information—which is where he found himself getting into trouble. His friend, journalist and science fiction novelist Cory Doctorow, says he was a “full-time, uncompromising, reckless and delightful shit-disturber.” His first target was PACER.gov, a website that provides court documents to the public for a small fee (about 8 cents per page). In 2008, Swartz, funded by his own money, single-handedly moved the information on to a public website. He released over 18 million pages, an estimated total value of 1.5 million dollars. The FBI investigated the situation, but no charges were filed against him.
Shortly after, Swartz founded DemandProgress.org, a website devoted to internet activism. The website was integral in taking down the Stop Online Piracy and the Protect IP Acts of 2011, two bills which allowed the government more control over what could and could not be posted and shared on the internet (they deserve their own blog post—next week, perhaps).
What got him into conflict with the judicial system, after some earlier and less significant jostles, was breaking into M.I.T. computer networks in 2010 and 2011, to access JSTOR and to download documents from there. It was apparently meant to be a demonstration, to underline his case that documents like JSTOR’s should be freely available. It had long been argued that such documents should be free because they are produced at public expense, writes the New York Times. The NYT has a detailed account of Swartz’ JSTOR activity. The indictment says that JSTOR’s servers were brought down by his action on several occasions, Wired wrote in September 2012.
It’s apparently a Computer Fraud and Abuse Act (CFAA) which was applied by federal prosecutors. The 9th U.S. Circuit Court of Appeals, in limiting reach of the CFAA, said that violations of employee contract agreements and websites’ terms of service – crucial in Swartz’ case, apparently, at least if up to the prosecutors – were better left to civil lawsuits, also according to Wired. But this ruling wasn’t binding for Massachusetts, and the prosecutors insisted that their charges against Swartz should go on. The maximum penalty – potentially – could have amounted to 35 years in prison, and a million USD penalty. The chief prosecutor in charge was Steve Heymann, who had previously brought hacker Albert Gonzales into jail with a 20-year term.
Defenders of the Justice Department say that a criminal conviction could have been a death penalty for the bank, causing widespread damage to the economy. Warren wanted to know why the death penalty wasn’t warranted in this case.
“They did it over and over and over again across a period of years. And they were caught doing it, warned not to do it and kept right on doing it, and evidently making profits doing it,” Warren said of HSBC. “How many billions of dollars do you have to launder for drug lords and how many economic sanctions do you have to violate before someone will consider shutting down a financial institution like this?”
How can you teach business ethics with a straight face in this kind of environment? A bank participates in the systematic subversion of a friendly government, makes billions of dollars and is then fined a small proportion of its profits.This is not an
example you want to lead with in an ethics lecture in a business class. In fact, it’s not something you want to think about too hard while trying to make moral decisions. Anybody who uses the nonsensical argument, “Everybody does it,” just got enough ammunition for years of abuse. What are the rest of us supposed to do?
We could start by marveling at the idea that any rational human being could contemplate a fine as a penalty for international subversion? This subversion involved laundering money so it could be used anywhere in the economic system, thus, making it available to pay for bribes, drug smuggling, murder and kidnapping.
We could wander casually over to our second problem which is bankers, especially the international and investment variety, and wonder what made them so special? It is a simple matter to document one law for them and one law for the rest of us. That is the why Ms. Warrent’s example hits home. We are living by two sets of laws, one harsh and punitive and another for the banks.
Let us conclude with out third problem, where do get off allowing banks to attack foreign governments? Can there be any doubt in anyone’s mind that laundering billions in drug cartel money is the equivalent of a direct attack on the nation of Mexico and a more minor, by comparison, attack on this country, the United States?
It might be better if instead of thinking of the HSBC bank as a financial institution but more as a hostile foreign power willing to exploit our financial system for profit. I believe that is a more accurate reading of how it views its status in the world.
I don’t think Mexico feels safer after we fined HSBC. They may not feel that we have sent a message to those who would empower those who actively kidnap and murder in their country?
How would you feel about this if you lived in Mexico? Does it make you feel secure in American protection anywhere on earth?
Forensic Reform, A Critical Criminal Justice Issue
Forensic Reform: On the Agenda in the New Congress « Failed Evidence
I’ve written a number of times (here and here an here, for example) about the problems with forensic science laboratories in this country. Just in the last few months, we’ve seen scandals hit labs in Massachusetts, St. Paul, Minnesota, and in Mississippi. It seems that the parade might never end.
But today, news emerged that indicates that, just maybe, forensic reform might be on the national agenda.
The new Congress will, of course, be preoccupied with budget and fiscal matters, and also with the President’s efforts on gun control and an expected push for immigration reform. But Senator Patrick Leahy of Vermont, chair of the Senate Judiciary Committee, has announced that he intends to put forensic reform onto the long list of issues he will examine. According to The BLT (the Blog of the Legal Times, which covers law and government in Washington), Leahy’s committee will be working on an ambitious agenda: immigration, national security and civil liberties issues (including the use of drones in both foreign and domestic contexts), and gun control policy, but that isn’t all. “The committee will also focus on promoting national standards and oversight for forensic labs and practitioners,” BLT says.
It is time for national standards in the field of forensic science. We have had forensic labs across the country involved in serious scandals and forensic testimony in some jurisdictions more comic than useful.
A front-page article in yesterday’s Washington Post underlines the importance of establishing a substantive defense right to expertise in the US.
The article says, “Justice Department officials have known for years that flawed forensic work might have led to the convictions of potentially innocent people, but prosecutors failed to notify defendants or their attorneys even in many cases they knew were troubled.” The DoJ begin investigating in the 1990s “after reports that sloppy work by examiners at the FBI lab was producing unreliable forensic evidence in court trials.” As the Post article chronicles, the investigation was very narrowly drawn in spite of evidence that problems were likely more widespread. When problems were identified, the FBI gave notice to the relevant prosecutors, but not to defendants or their legal representatives. To judge by the sample the Post was able to track down, prosecutors notified defendants in only about half the cases. This is not the first case of slow or inadequate notification.
Oversight is a common prescription from those who recognize problems with the system. I have expressed my preference for a different approach, one that chooses checks and balances over hierarchy. The Post article points to a big problem with oversight. It quotes University of Virginia School of Law professor Brandon L. Garrett saying, “You can have cautious standards, but if no one is supervising their implementation, it’s predictable that analysts may cross the line.” Garrett favors oversight, and he seems to be calling for more of it in the quote.
The FBI announced some time ago that their “bullet lead analysis,” in use for approximately four decades, was of no value. They sent letters informing the @2,500 involved prosecutorial entities. Those prosecutorial entities did nothing. Law enforcement nationwide was aware of the FBI’s admission, and did nothing. The American Bar Association was aware, and did nothing. Aware that no reasonable reaction to their announcement had transpired, despite their color-of-law mandates, the FBI took no further action; a second letter to the actual inmates involved would have cost next to nothing.
There are only carrots and no sticks for law enforcement, prosecutors and agencies responsible for their oversight to ignore forensic advances. Case law and legislated immunities allow all to put their personal career paths ahead of delivering justice, and the vast majority demonstrably choose to appear to have always been right in arrests and prosecutions, regardless of the harm done.
The worst case law immunities were born of Imbler v Pachtman and Van de Kamp v Goldstein. Both clearly establishes unequal justice; fines, suspension and/or disbarment are punishments unbefitting deliberately framing an innocent. And as light as those punishments are, the Bar rarely administers them. Recent USA Today articles addressed the rarity without noting that Congress needs to override civil immunities – they are unconstitutional, and they have killed. I refer to Imber v Pachtman as the Bicentennial Blight. It needs to be eradicated, its damage is bloody and incomprehensibly voluminous.
Senator Leahy’s forensic science reform bill appears to be short on specifics and long on template. Problems with forensic science are no doubt ‘low-hanging fruit’ for political purposes. Nevertheless, it is encouraging that the 2009 NAS report is in fact on Washington’s radar.
The Bill’s primary concern is with the following NAS report findings: problems with scientific validation of processes, and lack of uniform and unassailable standards regarding accreditation, certification, and testing procedures. Notably missing is perhaps the most discussed recommendation of the NAS report: the call to take forensic science laboratories out of the hands of law enforcement. Bias (intentional and otherwise) is likely at the heart of many if not all of the issues in forensic science. While there is no easy solution, this particular recommendation is no doubt the gorilla in the room that needs attention.
The ‘Criminal Justice and Forensic Science Reform Act of 2011’ seeks to establish an Office of Forensic Science and a Forensic Science Board. By the way, this Office is proposed to be within the Office of the Deputy Attorney General in the Department of Justice. This may be a naïve observation, but placement of the new Office within the AG’s office at least academically again ignores the NAS suggestion of separation from law enforcement. Apparently there needs to be no further discussion of this issue according to Leahy’s Bill.
Insight: How Colombian drug traffickers used HSBC to launder money | Reuters
In a typical transaction, a middleman in a drug cartel would offer to deliver consumer goods, such as computers or washing machines, to Colombian businesses on favorable terms. Another person in the United States would buy the goods from firms using funds from drug trafficking, and fulfill those orders.
Money launderers exploited the laxness of HSBC in policing shadowy money flows, the Department of Justice said earlier this month. Failures included not conducting due diligence on customers, not adequately monitoring wire transfers or cash shipments and not having enough employees to run anti-money laundering systems. U.S. Assistant Attorney General Lanny Breuer called the lapses “stunning failures of oversight.”
The situation was so bad, according to the Department of Justice, that in 2008, the head of HSBC’s Mexican operations was told by Mexican regulators that a local drug lord described the bank as “the place to launder money.”
The Chaparro probe, led by ICE and the Justice Department, converged over the past two years with two other investigations – led by federal prosecutors and investigators in West Virginia and by the Manhattan district attorney – resulting in this month’s settlement with HSBC.
HSBC and its employees avoided criminal indictments, as the bank agreed instead to a deferred-prosecution deal that forces it to strengthen controls and accept a compliance monitor.
Where to start? This bank has committed crimes on a scale almost beyond comprehension.
Our first question; is this good business ethics? Under Friedman analysis that a corporation’s sole purpose is to serve the shareholders, the HSBC’s actions were a marvelous success. The bank paid a fraction of its profits on its wrongdoing. Further it evaded any prosecution and the resulting loss in prestige and publicity damage that would have resulting from actual criminal punishments. But even more important when looking at the profit side of the ledger, a precedent has been set that if a bank has reached a certain size, it is beyond prosecution. This insures that banks of this size can in the future launder money with confidence that it will both be profitable and free from criminal charges.
Is this bad business ethics? The bank laundered about nine billion dollars in drug money from the Mexican cartels. These financed the drug trade smoothing the shipment of drugs into the United States and other countries. It paid for assassinations and kidnappings, bribery of public officials, and the creation of large heavily armed criminal mafias capable of exerting control over large geographical areas. The was at the very least a subversion of the government and economy of Mexico. Similar but smaller effects were felt in the United States.
However, this is not the whole story, the banks also laundered money for Saudi and Bangladeshi clients who were highly likely involved in terrorists activities and in some cases known have links to terrorists. I don’t think I need remind you that the United States has embarked and continues a “war” against terrorism. The bank actively subverted that war. In addition, the money helped finance rogue regimes like Iran in defiance of American sanctions, strengthening the nation’s enemies, and making those regimes more able to resist reform and democracy.
There can be no doubt that the religions of Christianity, Islam, and Judaism and a giant list of smaller religions would find these acts in violation of their rules of ethical conduct.
Philosophically, unless you consider Friedmanism, a legitimate source of wisdom, almost all philosophical schools with the probable exception of Nietzsche, would condemn the bank’s actions.
Capitalism is in a crisis. This is not an isolated example of few individuals’ greed. This is a giant financial institution deliberately acting against the interests of its host countries and financing murder and mayhem around the world. But further, have we not seen banking incompetence and law breaking on a massive scale on a regular basis since the 2008 financial crisis. This hardly seems to be passing phase.
This particular bank makes more money than most of the nations on earth. Its power to cause harm is enormous and it deliberately, over a long period of time, with direct knowledge of its leadership, caused that kind of harm.
This is a moral and ethical bankruptcy that is not just wrong but endangers the long term welfare of citizens in the United States and the rest of the world.
It’s hard to think of any phrase more sad when have knowledge of these crimes than, HSBC Avoids Criminal Charges.
From Matt Taibbi, Rolling Stone
Though this was not stated explicitly, the government’s rationale in not pursuing criminal prosecutions against the bank was apparently rooted in concerns that putting executives from a “systemically important institution” in jail for drug laundering would threaten the stability of the financial system. The New York Times put it this way:
Federal and state authorities have chosen not to indict HSBC, the London-based bank, on charges of vast and prolonged money laundering, for fear that criminal prosecution would topple the bank and, in the process, endanger the financial system.
It doesn’t take a genius to see that the reasoning here is beyond flawed. When you decide not to prosecute bankers for billion-dollar crimes connected to drug-dealing and terrorism (some of HSBC’s Saudi and Bangladeshi clients had terrorist ties, according to a Senate investigation), it doesn’t protect the banking system, it does exactly the opposite. It terrifies investors and depositors everywhere, leaving them with the clear impression that even the most “reputable” banks may in fact be captured institutions whose senior executives are in the employ of (this can’t be repeated often enough) murderers and terrorists. Even more shocking, the Justice Department’s response to learning about all of this was to do exactly the same thing that the HSBC executives did in the first place to get themselves in trouble – they took money to look the other way.
From further down in the article:
On the other hand, if you are an important person, and you work for a big international bank, you won’t be prosecuted even if you launder nine billion dollars. Even if you actively collude with the people at the very top of the international narcotics trade, your punishment will be far smaller than that of the person at the very bottom of the world drug pyramid. You will be treated with more deference and sympathy than a junkie passing out on a subway car in Manhattan (using two seats of a subway car is a common prosecutable offense in this city). An international drug trafficker is a criminal and usually a murderer; the drug addict walking the street is one of his victims. But thanks to Breuer, we’re now in the business, officially, of jailing the victims and enabling the criminals.
This is the disgrace to end all disgraces. It doesn’t even make any sense. There is no reason why the Justice Department couldn’t have snatched up everybody at HSBC involved with the trafficking, prosecuted them criminally, and worked with banking regulators to make sure that the bank survived the transition to new management. As it is, HSBC has had to replace virtually all of its senior management. The guilty parties were apparently not so important to the stability of the world economy that they all had to be left at their desks.
The following are findings from the Senate report:
HSBC Bank USA, N.A., known as HBUS [pronounced H-Bus] functions as the U.S. nexus for HSBC’s worldwide network. HSBC has 7,200 offices in more than 80 countries and 2011 profits of $22 billion; HBUS has 470 branches across the United States with 4 million customers. HBUS provides accounts to 1,200 other banks including more than 80 HSBC affiliates.
In 2010, HSBC was cited by its federal regulator, the Office of the Comptroller of the Currency (OCC), for multiple severe anti-money laundering deficiencies, including a failure to monitor $60 trillion in wire transfer and account activity; a backlog of 17,000 unreviewed account alerts regarding potentially suspicious activity.
HBUS offered correspondent banking services to HSBC Bank Mexico, and treated it as a low risk client, despite its location in a country facing money laundering and drug trafficking challenges. The Mexican affiliate transported $7 billion in physical U.S. dollars to HBUS from 2007 to 2008, outstripping other Mexican banks, even one twice its size, raising red flags that the volume of dollars included proceeds from illegal drug sales in the United States.
Foreign HSBC banks actively circumvented U.S. safeguards at HUBS designed to block transactions involving terrorists, drug lords, and rogue regimes. In one case examined by the Subcommittee, two HSBC affiliates sent nearly 25,000 transactions involving $19.4 billion through their HBUS accounts over seven years without disclosing the transactions’ links to Iran.
HBUS provided U.S. dollars and banking services to some banks in Saudi Arabia and Bangladesh despite links to terrorist financing.
The HSBC deal includes a deferred prosecution agreement with the Manhattan district attorney’s office and the Justice Department. The deferred prosecution agreement, a notch below a criminal indictment, requires the bank to forfeit more than $1.2 billion and pay about $700 million in fines, according to the officials briefed on the matter. The case, officials say, will claim violations of the Bank Secrecy Act and Trading with the Enemy Act.
Prosecutors found that HSBC had facilitated money laundering by Mexican drug cartels and had moved tainted money for Saudi banks tied to terrorist groups.
On November 11 HSBC said it had “reached agreement with United States authorities in relation to investigations regarding inadequate compliance with anti-money laundering and sanctions laws.” The bank is also expected to reach a settlement over the matter with Britain’s Financial Services Authority, according to a person with direct knowledge of the matter.
November 10, federal and state authorities also won a $327 million settlement from Standard Chartered, a British bank. The bank, which in September agreed to a larger settlement with New York’s top banking regulator, admitted processing thousands of transactions for Iranian and Sudanese clients through its American subsidiaries. To avoid having Iranian transactions detected by Treasury Department computer filters, Standard Chartered deliberately removed names and other identifying information, according to the authorities.
But HSBC is not being indicted and nobody will be criminally prosecuted because of the perceived or projected threat to the financial system if such a large bank and its officers were penalized criminally for commission of crimes that everyone agrees did take place. Why? Because HSBC is too big to indict.
The obvious answer here is to dismantle the mega banks that are so big that their every move produces swings in the financial markets. Instead DOJ and other law enforcement agencies have given a green light to anyone who can build a bank that big. They can now commit crimes with impunity, which is to say that we are guaranteed to see repeat behavior. Now when a smaller bank engages in the same illicit schemes, it too can point to the fact that law enforcement decriminalized what is clearly a crime under all applicable statutes.