As sharp-eyed reader David pointed out, the owners of Banco Delta Asia group are petitioning the Treasury Department to rescind its final rule against BDA.
In a China Matters exclusive, I’ve obtained and posted the files for Delta Asia Group’s petition and the personal statement of DAG’s largest shareholder, Stanley Au.
Au’s petition, in particular, provides some interesting detail on BDA’s operations, describing it as a small bank with 8 branches and 150 employees, handling deposits for 40,000 local account holders (about 10% of Macau’s population).
According to Au, BDA’s business with North Korea developed out of a relationship with Pyongyang’s Daesong Bank and the Foreign Trade Bank of DPRK, and grew to include handling North Korea’s bullion sales—a business that Midland Bank apparently gave up on because the margins were so low. He states that business with North Korea and North Korea-related entities accounted for about 7% of the bank’s total revenues in 2005.
Concerning the notorious allegations that North Korea was using BDA to inject counterfeit currency into the world financial system, Au declares under penalty of perjury that BDA received counterfeit currency from North Korea on one occasion—in 1994.
Au further states that BDA closed accounts for two of the three depositors (believing that the third had unwittingly deposited the funny money), reported the matter to the Macau police, and...
“After the Bank reported this incident to the Macau police, I was contacted by agents of the United States government...they asked a number of questions about the circumstances under which the counterfeit notes came into the Bank’s possession. I cordially answered the questions and asked if their preference was that we should desist from doing business with North Korean entities. They said that they would like us to continue to deal with them, as it was better that we conducted this business rather than another financial entity that might not be so cooperative with the United States."
Unfortunately, Au doesn’t recall the names of the agents he dealt with.
However, he did state that since 1994, “the Bank made the policy decision to send all large value deposits of US dollar bills from North Korean sources to the Hong Kong branch of Republic (which became HSBC) to certify authenticity using its advanced technology. "
Unless the Treasury Department can introduce evidence of significant counterfeit dollar activity handled by BDA since 1994, Au’s statement should cause serious heartburn for the hardline crowd.
The background of the petitions is this:
The final rule against Banco Delta Asia isn’t a law; it’s a rule by a regulatory agency.
Because it’s not a law, there is no evidentiary/due process/transparency hocus-pocus.
The whole process is conducted secretly and unilaterally, which is pretty much the way the government likes it, I’m sure.
Beefs about rules are handled under the Administrative Procedures Act, which was enacted in 1946 to address concerns about the broad range of regulatory, quasi-legal powers wielded by agencies of the executive branch starting with FDR’s New Deal.
Interested parties may petition the relevant agency, in this case the Treasury Department, to review its ruling. Upon receipt of the petition, the Treasury Department can decide to reverse its rule or reject the petition; there’s no requirement to have any kind of hearing, rebut arguments, etc.
If the interested party is dissatisfied with the outcome, it can sue—in this case in district court.
However, the only basis for allowing a lawsuit to proceed is if Treasury abused its regulatory powers, in legal speak if Treasury acted arbitrarily and capriciously, abused its discretion, or otherwise acted not in accordance with the law.
BDA has already filed its petition.
Stanley Au is an “interested party” not just because he’s the majority stockholder in Delta Asia Group, the holding company that owns BDA.
He’s an interested party because the Treasury Department declared that his continued ownership of the bank is the sole reason why the Treasury Department can’t rest easy and accept the improvements that BDA, the government management committee running the bank, the Macau Monetary Authority, and the government of the Macau SAR undertook to improve bank management, tighten financial controls, and pass anti-money laundering and anti-terrorism laws during the 18 months of the Treasury’s investigation of BDA.
As Treasury put it in the final rule:
Despite any remedial measures and regulatory changes, this historical pattern of disregard by the bank’s management and primary shareholder regarding both the systemic due diligence failures at the bank and the potential use of the bank for illicit purposes, and the resultant likelihood of recidivism...leave us concerned about the potential for the bank to be continued to be used for money laundering and other illicit purposes. [emphasis added—ed.]
Since the 2005-era managers of the bank are long gone and not coming back, that leaves Stanley Au as the only reason why BDA can’t be trusted to be a clean bank.
Obviously, Treasury doesn’t like Stanley Au.
But maybe that’s not a good enough reason to cut his bank off from the U.S. financial system.
Treasury has not taken the step of calling a Stanley Au a criminal banker.
Treasury chose not to classify BDA as a money-laundering bank e.g. a bank that as a matter of conscious policy conducts money-laundering on behalf of illicit actors.
BDA was sanctioned as a bank “of primary money laundering concerns”, one with weak financial controls, instead. The whole point of that designation is to get the bank and the local authorities to tighten controls, which they did.
So Treasury is now trying to use a bait and switch approach, threatening sanctions meant to effect a tightening of financial controls, then, after the controls are tightened, saying that was not enough because the real issue is suspicion of undesirable intent by the bank’s owner.
The interesting (and for Treasury, rather awkward) question of why the Macau Monetary Authority should be judged incapable of preventing recidivism by its most famous or notorious corporate citizen—implying that the real problem is with the Macau government—is begged by the muddled Treasury rule, but never addressed.
Furthermore, how enticing are the temptations of recidivism to Stanley Au?
I don’t think that impartial observers would believe that the potential profits from future illicit North Korean transactions are so great that Au would take the colossal risk of pursuing them while under the scrutiny of new management, a new board, the Macau and Hong Kong monetary authorities, and the U.S. Treasury Department.
In the conclusion of his statement, Au does a convincing job of pointing out that “recidivism” on his part would be little more than professional suicide:
"Successful resolution of the concerns raised by the U.S. government, which have been publicized around the world, has been a matter of greatest importance both to the Bank and to the Government of Macau...I understood that it was of paramount importance, for my own sake, for the Bank’s sake, and for the Government’s sake to make every effort to fully implement commitments made by my Government’s representatives in my bank’s name, while under the scrutiny of the U.S. authorities and the international media. To have done otherwise would have been unthinkable."
The alternate view—one that is probably shared by Stanley Au, the Macau Monetary Authority, China, the UN as it interpreted its sanctions against North Korea’s nuclear, missile, and proliferation networks, and, I suspect a large percentage of the world’s nations—is that legitimate North Korean financial activity does exist, BDA had a right to solicit North Korean accounts and handle North Korean transactions, and Stanley Au should be allowed to run his bank as long as he conforms to the laws of his jurisdiction--and not be used as a political football in Washington's dealings with Pyongyang.
The Delta Asia Group petition observes:
But BDA’s owners and former managers had no reason to know, prior to FinCEN’s September 2005 finding, that the United States now held the view that bank dealings with North Korea must be entirely avoided. Whether for geopolitical reasons or otherwise, the U.S. government chose not to avail itself of any of the formal mechanisms available to it to put banks on notice of this apparent change of policy...Instead it “announced” this new position by singling out for sanction one small Macau bank, apparently hoping to achieve by in terrorem effects what it did not wish to impose by straightforward regulation.
In terms of attempts to get the rule rescinded, the allegation with the most damaging potential is that the Treasury Department never raised its fears of recidivism during its investigation and rule-making process in order to give Au a chance to give a satisfactory response—it announced these concerns for the first time in its final rule and, what's more, made them the central justification for imposing the most onerous "Special Measure Five".
If BDA decides to try to overturn the rule with a lawsuit, this appearance of “arbitrary and capricious action” by the Treasury Department may persuade the judge to let the legal system open the whole North Korean policy/Patriot Act 311 can of worms to determine if evidence or diplomatic strategy drove Treasury’s seemingly flawed, self-contradictory rule on BDA.
If so, damning statements like this one from David Asher, the self-styled architect of Washington’s North Korea initiatives, may persuade a US judge that the burden of proof is on the Treasury Department to substantiate its allegations against BDA in open court—or abandon them:
The Illicit Activities Initiative prominently involved the use of several—the development of the—conceptualization of the use of several of the tools you’re discussing today including USA Patriot Act Section 311. We worked hand in glove with the Treasury Department to apply and plan to apply against North Korea, and after a time of deep research we came to conclude that one of the best spots was in Macau against Banco Delta Asia."
“Banco Delta was a symbolic target. We were trying to kill the chicken to scare the monkeys. And the monkeys were big Chinese banks doing business in North Korea...and we’re not talking about tens of millions, we’re talking hundreds of millions.”