Strengthening Available Evidence-Gathering Tools in the Fight Against Internatoinal Money Laundering

Holmes, W. Clifton | January 1, 2003

Congress responded rapidly to the terror attacks, passing the U.S.A. Patriot Act (“Patriot Act”) in October 2001. In addition to providing the death penalty for the “attempted wrecking of a mass transportation vehicle,” the Patriot Act contains several anti-money laundering provisions. This article will argue that the Patriot Act’s anti-money laundering scope was excessively narrow in that the Act did not address existing inadequacies under federal law in the area of grand jury investigations of transnational money laundering offenses. In order to enhance the efficacy of such investigations, Congress should take three steps: first, Congress should confer to federal courts the authority to compel transnational banks to disclose records subpoenaed pursuant to money laundering investigations in instances where the bank maintains branches on U.S. soil, but the subpoenaed document is located at a branch of the bank outside the United States. Second, Congress should provide stringent penalties for transnational banks that attempt to defy such disclosure orders on the ground that the disclosure order would conflict with a foreign jurisdiction’s bank secrecy law. Third, Congress should empower district courts to prevent U.S. residents from suing in foreign courts to enjoin overseas banks from disclosing such U.S. residents’ bank records.