Friday, December 18, 2009

Weaponizing Treasury’s Financial Enforcement: Credit Suisse Rolls Over on Tehran

…While Poker Players Fight Back

From her perch at Politico, the estimable Laura Rozen reports that the U.S. government has slapped Swiss bank Credit Suisse with a “half billion dollar” settlement punishing the bank for helping Iran evade U.S. financial sanctions.

Attorney General Eric Holder announced the decision, flanked by the head of Treasury’s Office of Terrorism and Financial Intelligence, Bush administration holdover, and China Matters bete noire Stuart Levey.

China Matters’ response: Grrrrrrrrr.

During the North Korean disarmament debacle in the last years of the Bush administration, China Matters tirelessly documented Levey’s efforts to sabotage the State Department's negotiated arrangement with Pyongyang by throwing up countless regulatory and extra-regulatory roadblocks to the key trigger for the deal: release of $24 million in North Korea-related funds frozen at Banco Delta Asia in Macau.

I hear echoes of that fiasco in the Credit Suisse deal.

I would note that, according to the Deferred Prosecution Agreement that Politico linked to, the $536 million dollars looks like it’s not Credit Suisse’s (also, the stock price doesn’t seem to have taken much of a hit since the announcement), which makes it look like Credit Suisse got off kinda easy in return for helping drop the hammer on Tehran:

…the parties agreed that the United States could institute…forfeiture against certain funds held by Credit Suisse…

And

Credit Suisse hereby acknowledges that $536,000,000 was involved in transactions described in the Factual Statement…[emphasis added]

So, it looks like it’s not Credit Suisse capital or earnings at stake. Probably it’s Tehran’s money and we have another Banco Delta Asia/North Korea situation.

In other words, just as we tied up North Korea’s money in a Macau bank in order to exert political pressure in 2007, now we’re tying up Iran’s money in a Suisse Bank.

From the U.S. point of view, the situation is improved because, instead of the money frozen under the jurisdiction of a bewildered and resentful foreign monetary authority, this agreement binds Credit Suisse to hand the money over to the United States on demand or face the consequences.

The Iranians, of course, are welcome to wade into the Swiss courts to try to get their money released from Credit Suisse. Once the $536,000,000 makes it to the United States, however, fuhgedaboutit.

So I guess China Matters may have Stuart Levey to kick around a lot longer.

Levey going rogue on North Korea policy, perhaps at the behest of the Office of the Vice President or some other hardline coven inside the Bush administration was one thing.

However, my strongest objection was the use of Treasury’s ability to exploit America’s central position in the world financial system to intimidate our insufficiently aggressive friends into disrupting the international financial dealings of North Korea and Iran and who knows who else.

I realize that President Obama and Secretary of State Clinton are much enamored of “soft power” and feel that working the financial levers is preferable to shooting a cruise missile down someone’s throat. And keeping on a Bush appointee to run the show makes for continuity, even if Levey runs an independent and refractory bureaucratic bastion.

But my main gripe about “financial enforcement” is that it’s unilateral, utterly untransparent, and targets our allies.

Most importantly, weaponizing financial enforcement undercuts America’s stance as indispensable honest broker in the world financial system.

Considering the emerging challenges to America’s role as world reserve currency from the EU and China (though, admittedly, no one seems eager to take on the job of keeping the world awash in liquidity, any more than any nation or bloc wants to assume Uncle Sam’s role as the world’s largest debtor nation), it would not seem especially wise to give other countries more reasons to start avoiding the greenback—and dodging Treasury’s heavy-handed intimidation.

However, the Credit Suisse announcement gives me a cause for holiday cheer: the opportunity to revisit one of the most popular posts in the history of China Matters, The Worldwide Gambling Storm, whose focus was the unilateral extension of the long, costly, and rather arbitrary arm of U.S. financial enforcement into foreign jurisdictions, and update the story.

The point of departure for the post was the passing of the Unlawful Internet Gambling Enforcement Act (UIGEA) in 2006, a piece of calculated political folly by a delusional presidential aspirant, Bill Frist.

Under UIGEA’s aegis, the U.S. aggressively cracked down on financial institutions that held electronic wallets or otherwise facilitated the play of American gamers on offshore Internet poker sites.

The U.S. action shaved billions of dollars off the market value of British on-line gambling companies, who relied on U.S. players for much of their revenue.

The U.S. government also threatened to compel British investors to disgorge their illicit gains from illegal poker play by Americans.

The result was near apoplexy in the British establishment, and rage at the U.S. government’s use of Treasury sanctions to intimidate foreign corporations into adhering to U.S. national and even state statutes.

The Europeans brandished their own regulatory and financial clubs in a June 2009 decision citing the U.S. for WTO violations in its jihad against online gaming:

…report made it perfectly clear that there are high costs associated with U.S. infractions, citing the losses in revenue and stock market capitalization incurred by European companies who had to vacate the U.S. market. The report also provided a projection of what U.S. online gaming revenue would have been if not for the UIGEA, which showed $10 billion of hypothetical revenue loss for 2012 alone.

The report also chastised the U.S. Department of Justice for continuing to pursue European online gambling and betting companies that left the U.S. market in 2006, stating "The report comes to the conclusion that these proceedings are legally unjustified as well as discriminatory, because the activities of EU companies took place under the cover of US WTO commitments."

The U.S. is in the process of formally withdrawing from its GATS obligations as they pertain to online gaming. While the European Commission acknowledges that this process may have some influence on the actions it may ultimately take, it also was quick to point out that the U.S. would still be culpable for all its GATS violations prior to the withdrawal.

Meanwhile, American poker players felt the claws of the government at their throats.

In keeping with the theme of politicized and selective financial enforcement with zero due process, those of us with memories of the contortions and pretexts used to tie up North Korean-related funds at ADB will have a smile at this (although the 24,000 online poker players whose funds were frozen are no doubt struggling with other and stronger emotions):

Gambling911.com can reveal that the total amount of seized monies from the two largest online poker rooms, PokerStars and Full Tilt Poker, has now reached $40 million.

Gambling911 sources informed us that a few banks voluntarily froze another $10 million in funds over the past few days following news that the US Attorney out of New York froze $30 million transferring through payment processors on behalf of PokerStars and Full Tilt.

Last week, the U.S. attorney for the Southern District of New York instructed four banks to freeze accounts belonging to online payment processors.

In a letter dated Friday and faxed to Alliance Bank of Arizona, the prosecutor alleged that accounts held by payment processor Allied Systems Inc. were subject to seizure and forfeiture "because they constitute property involved in money laundering transactions and illegal gambling offenses."

Some of the said money was reportedly slated as $10,000 buy-ins to the World Series of Poker won by online players in satellite tournaments. The 2009 WSOP is already in progress with the main event set to begin the first week in July.

America’s poker players have found a friend in Barney Frank, who has memorably described UIGEA as “the stupidest bill ever written”, because of its impingement on Americans’ rights to lose their money quickly and efficiently as possible on the Internet, and because it mandates costly and onerous monitoring and enforcement obligations on the banking industry.

Just after Thanksgiving, Frank engineered a six-month postponement of full implementation of UIGEA to June 2010, and will try to push through a repeal of UIGEA in the next few months.

Frank, who doesn’t gamble himself but receives significant campaign contributions from gambling advocates, visited the World Series of Poker and apparently told reporters that the $40 million seizure did not represent the priorities of the Obama administration (again bringing to my mind recollections of the rogueish tendencies of Stuart Levey’s shop at Treasury):

In response to one question, Frank questioned whether [sic] the recent seizure of some $40 million connected to individual players’ online poker funds, asserting instead that it was likely Bush Administration holdovers at the Department of Justice’s Southern District of New York who initiated the action.

The expectation appears to be that President Obama, himself a poker player, will support the reversal of UIGEA and a more sympathetic stance toward online poker.

The European Union appears to think so:

The investigation has been ongoing since March 2008 and the report has been long awaited. But it might not be entirely coincidental that its release comes as U.S. Representative Barney Frank's bill, the Internet Gambling Regulation, Consumer Protection, and Enforcement Act, is in committee and looking for support. In fact, the report specifically stated that the European Commission's actions against the U.S. hinged on the path chosen by the Obama administration, asserting: "Moreover, the approach that the new US Administration takes with regard to the subject matter under investigation in this Trade Barriers Regulation examination may also be relevant for determining which subsequent acts are in the interest of the Community."

EU Trade Commissioner Catherine Ashton said: "Internet gambling is a complex and delicate area, and we do not want to dictate how the US should regulate its market. However, the US must respect its WTO obligations. I hope that we will be able to reach an amicable solution to this issue."

In addition to Frank, the Poker Players’ Association—ostensibly one million strong—has enlisted the services of Alfonse D’Amato. Whether this alliance of opposites is able to overcome the inevitable Republican resistance to any Obama administration initiative, regardless of its merits or ideological slant, remains to be seen.

But for now, interested readers can revisit The Worldwide Gambling Storm--which covers UIGEA, Britain's big bet on online casinos, Chinese gambling, the nuts and bolts of cheating people at poker, the origin of the phrase “pass the buck”, and an amusing anecdote concerning another poker-playing American president: Harry Truman—at this link.

Happy reading and happy holidays!

p.s. In the e-mail notice for this post, I incorrectly referred to the Swiss Bank as UBS i/o Credit Suisse. It's corrected here. Sorry 'bout that.

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