Foreign Regimes' Assets: The United States Faces Challenges in Recovering Assets, but Has Mechanisms That Could Guide Future Efforts
Published: 2004-09-14T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: For many years, the United States has used economic sanctions, including the freezing of foreign regimes' assets, when such regimes have been determined to be a threat to the nation. In light of recent efforts to "recover"--or target, identify, freeze, and transfer--Iraqi assets, GAO was asked to examine overall U.S. efforts to recover foreign regimes' assets. This report (1) describes the approach the U.S. government uses to recover foreign regimes' assets, (2) examines the challenges the United States faces in recovering foreign regimes' assets, and (3) examines the mechanisms the United States has used to recover Iraqi assets and their applicability to future efforts.
section_title: What GAO Found
paragraphs: The approach the U.S. government takes to recover foreign regimes' assets varies depending on the foreign policy and national security goals pursued. Treasury officials stated that the goal of economic sanctions is to freeze assets of a sanctioned jurisdiction or targeted designee and prohibit U.S. persons from dealing with them. In certain cases, once the foreign policy goals of the sanctions are met, the assets are returned to a country. The Departments of Justice, State, and the Treasury, as well as intelligence and law enforcement agencies, work together in the targeting process. Identifying the location of financial assets throughout the international financial system requires the cooperation of U.S. and foreign financial institutions. The United States has procedures to freeze assets of targeted regimes located in the United States or under the control of U.S. persons. Pursuant to executive orders issued by the President under various authorities, Treasury's Office of Foreign Assets Control (OFAC) issues regulations that can require assets to be frozen and transactions to be blocked and administers sanctions programs. U.S. government agencies and financial institutions involved in recovering targeted regimes' assets face a number of challenges. First, U.S. agencies may not be able to readily obtain accurate and complete information on targeted entities, such as the spelling of names, addresses, and dates of birth. Financial institutions can also lack complete identifying information on their clients. Second, the laws of some foreign governments complicate the ability of overseas branches of U.S. financial institutions to comply with OFAC regulations. In these situations, the U.S. government encourages the relevant foreign governments to allow U.S. financial institutions to freeze or transfer assets in a manner consistent with U.S. law or Treasury issues a license to allow U.S. financial institutions to comply with local laws. Third, OFAC's ability to monitor financial institutions' compliance with its regulations is limited because it relies on financial regulators to monitor financial institutions' OFAC compliance programs. The United States has used a variety of legal authorities and coordinating bodies in its recent effort to recover Iraqi assets; some of these mechanisms could be applied to future efforts. The USA PATRIOT Act of 2001 allowed the United States to take ownership of $1.9 billion of Iraqi assets and transfer them for use in Iraq reconstruction efforts. United Nations Security Council Resolution 1483 has resulted in the transfer of about $847 million in frozen Iraqi assets to a fund for Iraq. However, factors that include existing claims against the assets and other countries' laws have slowed the transfer of an additional $2.9 billion held in other countries. In addition, some mechanisms developed to combat money laundering and terrorist financing might be applicable to recovering foreign regimes' assets. Although the U.S. government has used various legal authorities and coordinating bodies to recover foreign regimes' assets, it has yet to compile lessons learned from past efforts that could guide future efforts.

section_title: Letter
paragraphs: The United States has used economic and trade sanctions, including the  freezing of financial assets and blocking of transactions, to achieve various  U.S. foreign policy and national security goals. These sanctions can be  targeted against foreign countries, terrorists, international narcotics  traffickers, and those engaged in the proliferation of weapons of mass  destruction, among others. Some foreign regimes, whose assets were  frozen by the United States, had accumulated billions of dollars in illegal  assets. For example, in March 2004, we reported that, between 1997 and  2002, Saddam Hussein’s regime accumulated an estimated $10.1 billion  through oil smuggling and surcharges against oil sales and illicit  commissions from commodity suppliers.
In light of recent efforts to recover Iraqi assets, you asked us to examine  overall U.S. efforts to recover foreign regimes’ assets. In this report, we use  “recovering foreign regimes’ assets” to refer to the process of targeting,  identifying, freezing, and, in some cases, transferring assets to legitimate  governments of targeted nations. This report focuses on U.S. government  procedures to recover assets of foreign regimes targeted under economic  sanctions. It (1) describes the approach the U.S. government uses to  recover foreign regimes’ financial assets, (2) examines the challenges the  United States faces in recovering foreign regimes’ assets, and (3) examines  the mechanisms the United States has used to recover Iraqi assets and their  applicability to future efforts. This report does not examine other methods  such as criminal prosecutions, civil and criminal asset forfeiture  proceedings, asset sharing, and restitution authority, which are enforced by  the Department of Justice.
We reviewed documents from the U.S. government, United Nations, and  private firms, including testimonies, reports, and relevant laws. We  interviewed key U.S. government officials from multiple U.S. government  agencies. We also interviewed private firm representatives that specialize  in asset recovery, representatives of U.S. financial institutions responsible  for complying with orders to freeze assets and block transactions, and  trade associations representing segments of the U.S. financial services  industry.
We conducted our work from May 2003 to August 2004 in accordance with  generally accepted government auditing standards. (See app. I for  additional information on our scope and methodology.)
subsections: section_title: Background
paragraphs: Foreign regimes’ assets can be targeted by unilateral, multilateral, or U.N.  Security Council sanctions programs. Economic sanctions programs fall  into two broad categories—(1) financial sanctions and asset freezes and (2)  trade and commercial embargoes. Sanctions are generally used when other  efforts, such as diplomacy, fail. Since 1979, the United States has frozen the  assets of governments, individuals, or entities associated with 12 countries  (see app. II). Each sanctions program is unique, as are the circumstances  and objectives.
The United States and the international community have significantly  increased the number of targeted individuals and entities over the last  decade. Until the late 1990s, targeting the financial assets of governments,  persons, and entities was normally part of a broader sanctions program  aimed at cutting off most or all economic relations with a country.  However, beginning in the late 1990s, the international community  acknowledged that broader sanctions programs can take many years to  achieve their goals and can adversely affect entire populations of targeted  countries. To reduce these impacts, in recent years, the United States and  the international community have begun implementing sanctions that  target the assets of specific persons and entities.
The United States, working with the United Nations, has urged the  adoption of U.N. Security Council resolutions to freeze the assets of both  terrorists and sanctioned foreign regimes. For example, in October 1999,  the Security Council adopted Resolution 1267, which called on all member  states to freeze the assets of the Taliban regime. In response to the attacks  of September 11, 2001, the Security Council adopted Resolution 1373 in  September 2001, requiring all U.N. member states to freeze funds and other  financial assets or economic resources of persons who commit, attempt to  commit, participate in or facilitate terrorist acts. A subsequent resolution in  January 2002 (Resolution 1390) called on all member states to freeze the  assets of Osama bin Laden and al Qaeda. Pursuant to this line of  resolutions, the United Nations has listed nearly 300 names of individuals  and entities for worldwide asset freezes. These resolutions target  governments, political leaders, individuals, or groups.
Several U.S. laws authorize the recovery of foreign regimes’ assets,  including IEEPA, as amended by the USA PATRIOT Act, National  Emergencies Act (NEA), Trading with the Enemy Act (TWEA), and the  United Nations Participation Act (UNPA). These laws are generally  implemented by presidential executive orders and agency guidance that  provide entities, such as financial institutions, with specific lists of targets  to ensure that financial assets are blocked or frozen to prevent their  movement. Appendix III provides a summary of key domestic legal  authorities used to freeze foreign regimes’ assets.
section_title: The U.S. Government’s Approach to Recovering Foreign Regimes’ Assets Varies Depending on the Goals Pursued
paragraphs: The U.S. government’s approach to recovering assets of foreign regimes  varies depending on the U.S. foreign policy and national security goals  pursued. This process can involve targeting, identifying, freezing, or  blocking assets, and, in some cases, transferring assets of governments,  political leaders, individuals, or groups to legitimate governments. Over the  last decade, the efforts of the United States and the international  community have focused more on individuals and groups associated with  targeted regimes than entire countries. Assets can be located throughout  the international financial system; identifying their location requires the  cooperation of U.S. and foreign financial institutions. The United States has  procedures to freeze targeted regimes’ financial assets located in U.S.  financial institutions and has transferred assets back to a country in a few  cases. Figure 1 illustrates this approach, outlines the various agencies and  institutions involved in the asset recovery process, and identifies the legal  authorities used.
Figure 1 illustrates that the approach can involve four parts: targeting or  determining whose financial assets will be frozen; identifying or  ascertaining the accounts in which the assets are located; freezing or  immobilizing the assets; and transferring or transmitting assets to accounts  of a new government. It also identifies the various government agencies  and financial institutions that can be involved in the approach and the legal  authorities used for implementing the approach. Additionally, figure 1  provides examples of various outcomes of a foreign regime asset freeze:  transfering of blocked assets; unfreezing of assets in place; or vesting  (taking ownership of) and transferring assets, as illustrated by the cases of  the former Yugoslavia, Afghanistan, and Iraq.
subsections: section_title: Several U.S. Agencies Are Involved in Targeting Assets of an Increasingly Greater Number of Foreign Regime Entities
paragraphs: The Departments of Justice, State, and the Treasury, the Central  Intelligence Agency, and the National Security Council have been key  actors in foreign regime asset recovery. Domestically, the Department of  State, in consultation with the National Security Council and other  executive branch agencies, generally determines whose financial assets  will be targeted, under what authority the action will be pursued, and  whether the effort will be undertaken unilaterally or multilaterally, as under  U.N. Security Council resolutions. Once a decision is made, the President  of the United States issues an executive order that gives U.S. executive  branch agencies the authority to undertake these actions.
The mandate of OFAC, the administrator and enforcer of U.S. economic  sanctions programs, is to require all U.S. persons, including financial  institutions, to freeze targeted assets located in the United States or under  the control of a U.S. person outside of the United States. OFAC “targets” an  individual, group, or entity by placing its name on the Specially Designated  Nationals (SDN) list. According to OFAC officials, OFAC works with the  Departments of Justice and State, other components within Treasury, and  intelligence and law enforcement agencies to develop adequate evidence to  place individuals or entities on the SDN list. Officials at these agencies  stated that this targeting process can be completed in weeks or months,  depending on several factors, such as the availability of accurate  information and the corroboration of intelligence collected from multiple  sources.
The Department of Justice’s Civil Division advises OFAC on the legal  sufficiency of the evidence to comply with IEEPA requirements and would  also defend the United States against any potential lawsuits that result from  a targeting decision. OFAC then places targeted names on its SDN list.  OFAC posts updated information on its public Web site and in the Federal  Register, and provides electronic notification services to financial  institutions. In addition, third party vendors provide subscription services  that track OFAC developments, and the Federal Reserve notifies U.S.  financial institutions of updates to the SDN list through Fedwire, an  electronic system that allows it to contact approximately 9,500 financial  institutions.
OFAC also provides specific guidance to financial institutions, which are  required to comply with orders to freeze assets. In addition, OFAC officials  stated that, when appropriate, they contact some banks and firms  individually. According to OFAC officials, the office sends OFAC personnel  to the physical locations in the United States of known commercial, real, or  tangible properties of the target to serve blocking notices to secure  property. In some cases, these personnel shut down branches and  subsidiary firms controlled by the target.
In 2003, the Departments of Defense and Homeland Security, as well as  intelligence and law enforcement agencies, became more involved in  tracking foreign assets. For example, in the case of Iraq, the Department of  Defense has been on the ground assisting efforts to locate assets of the  former Iraqi regime. Department of Homeland Security, Federal Bureau of  Investigation (FBI), Internal Revenue Service criminal investigators, and  intelligence agency representatives have worked in Iraq to identify leads to  the former regime’s hidden assets. See appendix IV for more information  about U.S. efforts to recover Iraqi assets.
The Department of State coordinates with the United Nations to place  names of targets identified through the U.S. targeting process on the  appropriate U.N designation list. Internationally, OFAC develops and  corroborates evidence collected by other countries on targets they have  identified and proposed to the United Nations for inclusion on a  designation list. State works diplomatically with other U.N. members to  obtain the international consensus needed to place all targets for which  OFAC has sufficient corroborating evidence on the U.N. lists. For example,  as of June 2004, U.N. members had achieved consensus on over 500 names  of individuals and entities associated with the Taliban, al Qaeda, and the  former Iraqi regime, and had placed them on U.N. designation lists. U.S.  government officials have also participated in international forums, such as  Interlaken and Stockholm, to discuss more effective ways of targeting  economic sanctions.
section_title: Identifying the Location of Assets Requires Domestic and International Cooperation
paragraphs: Financial assets of targets can be spread throughout the international  financial system, and identifying their location requires the cooperation of  U.S. and foreign financial institutions. U.S. government agencies involved  in recovering assets work domestically and with foreign government  counterparts and financial institutions to identify and locate the assets of  targeted foreign regimes.
U.S. intelligence and law enforcement agencies are involved in the  identification process by developing leads and working with counterparts  in other countries. For example, in 2003, the Department of Defense’s  Defense Intelligence Agency provided some of the research and analysis  used to identify assets of the former Iraqi regime. However, according to  OFAC officials, if there is little reason to believe that a regime’s assets will  be targeted, intelligence and law enforcement agencies are less likely to  gather the kind of information needed by financial institutions to identify a  targeted regime’s assets. This situation can pose a challenge to identifying  assets in the international financial system. According to U.S. officials and  experts on the subject of asset recovery, identifying assets also requires the  expertise of lawyers and investigators from various jurisdictions to  coordinate efforts to unravel what may be complicated financial  transactions. For example, in November 2003, the Department of  Homeland Security created the Iraqi Provisional Investigations Task Force,  which Treasury participated in, to share information obtained from Iraqi  documents and to coordinate their activities with other U.S. government  agencies. According to Treasury and State officials, the leads have been  provided to U.S. embassy officials working diplomatically with foreign  governments to recover the targeted assets.
According to U.S. officials, since September 11, 2001, contacts between  U.S. law enforcement officials and prosecutors and foreign officials have  increased. FBI legal attachés overseas and foreign police authorities  regularly share criminal intelligence. Information to further criminal  investigations and prosecutions is also exchanged between U.S. and  foreign prosecutors. Such exchanges are facilitated through designated  “central authorities” under treaties the United States maintains with several  other countries. The United States sometimes provides sensitive  information to foreign treaty partners in response to formal requests.
However, this process can be lengthy, according to agency officials. Other  countries have their own standards of evidence, and may have limitations  on whether, and how, they can utilize information and evidence obtained  from the United States. In addition, some countries’ laws require the  demonstration of a criminal act before allowing any attempts to identify  assets of selected targets.
section_title: The United States Has Procedures to Freeze Assets of Targeted Regimes Located in the United States or Under the Control of U.S. Persons
paragraphs: The United States has procedures, including domestic legal authorities and  an implementing agency, to freeze assets of targeted foreign regimes in the  United States or under the control of U.S. persons. Treasury’s OFAC, under  an executive order declaring a national economic emergency, issues  regulations implementing requirements that targeted regimes’ assets be  frozen and transactions involving individuals, groups, or entities associated  with these regimes be blocked. While OFAC’s regulations require  compliance by all U.S. persons, compliance by financial institutions is  crucial because these institutions often hold the targeted assets as deposits  or securities or because the institutions could be used to facilitate  transactions involving the assets. Financial institutions and their  employees, as do all U.S. persons, face criminal penalties of up to 10 years’  imprisonment and, in the absence of statutory authority in addition to  IEEPA, fines of not more than $50,000 for willful violations and civil  penalties of up to $11,000 per violation for noncompliance.
section_title: The United States Has Transferred Assets Back to a Country in Certain Cases
paragraphs: The United States has transferred assets back to the newly constituted  governments of countries in certain cases, including the former Yugoslavia,  Afghanistan, and Iraq; however, the circumstances varied in each case.
In the case of the former Yugoslavia, according to OFAC, $237.6 million in  funds belonging to the Central Bank of the Socialist Federal Republic of  Yugoslavia that had been frozen were transferred to the central banks of  the successor states prior to sanctions being lifted. The transfers occurred  primarily in April and May 2003.
In the case of Afghanistan, funds of the Taliban regime initially frozen in  1999 were transferred to an existing central bank account at the Federal  Reserve Bank of New York. OFAC unblocked the account, and the Afghan  government had the funds transferred to an account in another country.  According to OFAC, $217 million was unfrozen and released to the Afghan  Interim Authority in January 2002.
In the case of Iraq, under a March 20, 2003, executive order, the United  States vested funds previously blocked in the accounts of the government  of Iraq and certain Iraqi entities. The Treasury then directed the transfer of  the funds to a U.S. Treasury account held at the Federal Reserve Bank of  New York. U.S. Treasury officials issued instructions to the Federal Reserve  Bank of New York to transfer the funds in cash installments to the Coalition  Provisional Authority (CPA) in Iraq. Between May and December 2003,  $1.7 billion was transferred to the CPA and $208 million to the  Development Fund for Iraq (DFI).
section_title: U.S. Government Agencies and Financial Institutions Face a Number of Challenges in Recovering Foreign Regimes’ Assets
paragraphs: U.S. government agencies and financial institutions involved in recovering  foreign regimes’ assets face a number of challenges. First, law enforcement  and intelligence agencies do not always have accurate and complete  information, such as the spelling of names, addresses, and dates of birth, to  provide to OFAC for distribution to U.S. financial institutions and other  countries’ to assist in their efforts to locate assets of targeted foreign  regimes. Second, the local laws of some foreign governments where  branches of U.S. financial institutions are located sometimes complicate  efforts to freeze or transfer financial assets. Third, OFAC’s ability to  monitor financial institutions’ compliance with its regulations is limited  because it does not have supervisory authority over financial institutions  and relies on financial regulators to monitor financial institutions’ OFAC  compliance programs.
subsections: section_title: Target Information Needed to Locate and Freeze Financial Assets Is Not Always Readily Available
paragraphs: Law enforcement and intelligence agencies do not always have accurate  and complete information, such as the spelling of names, addresses, and  dates of birth, to provide to OFAC for distribution to U.S. financial  institutions and other countries’ to assist in their efforts to locate assets of  targeted foreign regimes. The large number of names—more than 3,500— on the OFAC SDN list compounds this problem. For example, in the case of  Iraq, U.S. officials stated that information provided by OFAC for many of  the targeted individuals lacked accurate or complete identifiers such as  dates of birth. In addition, Treasury and Defense Department officials  stated that intelligence agencies sometimes had to declassify key account  identifying information before providing it to financial institutions. U.S.  officials said this process could take months.
According to OFAC officials, financial institutions may also lack complete  identifying information on their clients, such as dates of birth, which makes  it more difficult for them to quickly determine if a name on the OFAC list  matches an account at their institution. Before passage of the USA  PATRIOT Act, U.S. financial institutions were not required to collect as  much identifying information about their clients as they are now.  Regulations issued under section 326 of the act now require financial  institutions to collect certain identifying information about new clients  seeking to open an account, such as name, address, and date of birth.  OFAC officials stated that during the past 15 years, and particularly since  September 11, 2001, the banking industry has developed a heightened  awareness of the need to comply with OFAC regulations. A representative  of the securities industry stated that since September 11, 2001, the  securities industry has also developed a heightened awareness of the need  to comply with OFAC regulations. According to representatives of U.S.  financial institutions we interviewed, they have undertaken an expensive  and rigorous due diligence program, which can include installing  monitoring software and training employees to detect names of targeted  individuals and entities.
To comply with OFAC’s regulations, including orders to freeze assets and  block transactions, the larger financial institutions whose representatives  we interviewed used filtering and interdiction software. Representatives of  these institutions stated that a large number of transactions initially  blocked by their software are “false positives.” This means that the  software has blocked transactions of entities with names similar to those  on the SDN list that should not be blocked because the entities are not  those on the SDN list. The representatives we interviewed stated that  OFAC’s SDN list contains names with multiple spellings and, in some cases,  does not include identifying information such as an address or date of  birth. This situation requires the financial institution to conduct additional  research to determine if the transactions involving those entities should be  blocked. The verification process takes time, however, and may lead to  delays in processing legitimate transactions. OFAC recognizes that a lack  of identifying information is a challenge for financial institutions and has  worked to increase the amount of identifying information it provides to  financial institutions.
An official from a trade group representing independent community banks  stated that because its members are smaller banks with fewer customers,  they generally use a manual process to comply with OFAC’s regulations.  Members manually compare updates to the SDN list with lists of accounts  maintained by the banks and transactions occurring at the banks over a  specified period. Officials at the trade group noted that managers of most  independent community banks are familiar with their customers and are  thus likely to detect suspicious or unusual transactions without the use of  filtering and interdiction software. However, because OFAC is continuously  updating its SDN list, it can be difficult and time consuming to manually  screen transactions against the list. Financial institution officials stated  that an institution’s decision whether to use software or a manual process  to comply with OFAC regulations is a business decision that the institution  must make based on its perceived risk of holding accounts or processing  transactions of those on the SDN list.
Representatives of financial institutions also noted that the OFAC SDN list  does not contain the name of every individual or entity subject to OFAC  regulations. For example, the U.S. sanctions program against Iran requires  bank transactions relating to goods or services of Iranian origin or  transactions controlled by the government of Iran to be rejected. It is  difficult for financial institutions to determine if an entity is owned or  controlled by the government of Iran. Some commercial software vendors  employ staff to research data available from the State Department, Central  Intelligence Agency, and other public sources. These staff update their  database with the names of entities known to be owned or controlled by  affected governments, or the names of government officials in countries  where the sanctions program covers government officials.
section_title: Domestic Laws of Foreign Countries Sometimes Prohibit Freezing and Transferring Assets Located in U.S. Financial Institutions Overseas
paragraphs: The laws of some foreign countries where branches of U.S. financial  institutions are located prohibit freezing of targeted assets under U.S.  unilateral sanctions. In the case of multilateral sanctions, they may also  prohibit the transfer of assets to a new government of a targeted regime.  According to OFAC officials, in the case of U.S. unilateral sanctions, U.S.  laws may conflict with the laws of the host country and thereby complicate  the recovery process. U.S. branches of financial institutions might be  exposed to legal action by the account holders for blocking financial  transactions overseas. For example, a U.S. bank in the United Kingdom was  ordered by a British court to release a Libyan bank’s assets blocked under  U.S. unilateral sanctions in 1986. The United States subsequently  authorized the release of the assets. According to an OFAC official, the  process for recovering assets subject to multilateral sanctions is usually  easier because these sanctions require international compliance.
OFAC’s jurisdiction extends to all U.S. persons, which includes U.S.  citizens and permanent resident aliens, companies located in the United  States, overseas branches of U.S. companies, and, in some instances,  overseas subsidiaries of U.S. companies. If these U.S. persons are located  in a foreign country, they are also subject to the local laws and regulations  of that country. In some instances, foreign laws conflict with OFAC  regulations. According to OFAC, in these instances and depending on the  circumstances, (1) the United States works diplomatically to encourage the  foreign governments to allow U.S. financial institutions to comply with  OFAC regulations to freeze and, in some cases, transfer the assets; or (2)  OFAC issues a license authorizing the financial institution to comply with  local law.
section_title: OFAC’s Ability to Monitor Financial Institutions’ Compliance with Its Regulations Is Limited
paragraphs: OFAC’s ability to monitor financial institutions’ compliance with its  regulations, including orders to freeze assets and block transactions, is  limited because, although financial institutions are required to comply with  OFAC regulations, OFAC does not have supervisory authority over them.  Thus, OFAC relies on financial institution regulators to monitor financial  institutions’ OFAC compliance programs through their examinations.  OFAC identifies transactions of U.S. persons that involve violations of its  regulations primarily through mandatory reports it receives from financial  institutions on transactions that have been blocked. In a few cases, OFAC  also learns about a financial institution’s own violations through “self- disclosure” by the financial institution.
subsections: section_title: OFAC Identifies Violations of Its Regulations Primarily through Reports It Receives from Financial Institutions
paragraphs: According to OFAC officials, the primary way OFAC learns about violations  of its regulations is through their review of mandatory reports filed by  financial institutions. When a transaction processed through an institution  is determined to be a “true hit” against the SDN list, it must, according to  law, be blocked. The institution is required to file a report of this blocking  with OFAC within 10 business days. These mandatory reports include such  information as payment instructions for a funds transfer. According to  OFAC officials, OFAC staff review these mandatory reports and, in every  case where there has been an indication that a U.S. party may have acted  inappropriately (such as where one bank that processes a transaction for  another fails to block a funds transfer), OFAC responded by issuing an  administrative subpoena for additional details, referring the institution for  penalty action, issuing a cease and desist order, or sending a warning letter.  According to OFAC, in every instance where a U.S. bank has acted  inappropriately, OFAC has sent information regarding the transaction to  the appropriate financial regulator. In a limited number of instances, OFAC  learns about violations of its regulations through “self-disclosure” by  financial institutions. Both OFAC and the financial institution  representatives we interviewed stated that these self-disclosures often  involve inadvertent violations of OFAC regulations, such as when a  financial institution mistakenly processes a wire transfer it should have  blocked. These improper transactions also come to light when a second  institution involved in the wire transfer subsequent to the first institution  through which the wire transfer was sent blocks the transfer and notifies  OFAC in accordance with OFAC regulations, thus putting OFAC on notice  of the first institution’s failure to block.
The financial regulatory officials we interviewed stated that, as a matter of  safety and soundness or compliance, they regularly examine financial  institutions subject to their supervision to evaluate the sufficiency of the  institution’s policies, procedures, and systems to ensure compliance with  OFAC regulations. When deficiencies in such policies, procedures, and  systems are observed, the financial regulators take the appropriate  supervisory action. Financial regulators stated they are unlikely to detect  specific violations of OFAC regulations during their examinations unless  such violations are apparent from transaction testing (i.e., testing  individual transactions for compliance with foreign sanctions). If OFAC  violations are identified during an examination, the regulators said that  they direct the institution to contact OFAC immediately, and in situations  involving enforcement actions, the regulators contact OFAC and share  pertinent information.
section_title: Treasury Has Not Acted on an Inspector General Recommendation to Seek Legislative Authority to Increase OFAC’s Access to Bank Regulators’ Examinations
paragraphs: In April 2002, Treasury’s Office of Inspector General (OIG) reported that  OFAC’s ability to monitor financial institution compliance with its  regulations is hampered because the varied legislation under which OFAC  operates does not provide it with the authority to proactively monitor  financial institution compliance with foreign sanctions. In its report, OIG  made two recommendations to Treasury related to OFAC’s monitoring of  financial institution compliance. OIG recommended that Treasury inform  Congress that (1) OFAC lacks sufficient authority to ensure financial  institution compliance with foreign sanctions and (2) OFAC’s ability to  ensure financial institution compliance with sanctions would be enhanced  by ensuring that bank regulators share information from their  examinations with OFAC. OIG stated that the second recommendation  could be accomplished by amending the Right to Financial Privacy Act to  include OFAC in the definition of “bank regulator” for the purpose of allowing bank regulators to share information with OFAC. In response,  OFAC officials agreed that its current legislative authority could be  improved in terms of the information shared by bank regulators but stated  that, despite statutory limitations, OFAC and the financial regulators have  created an adequate compliance system.
In December 2003, the Chairman and Ranking Minority Member of the  Senate Finance Committee wrote to the Director of OFAC and asked him to  explain and clarify OFAC’s position on the second OIG recommendation.  They noted that OFAC’s Director had previously stated that the  recommendation is a “good first step.” In his February 2004 response, the  OFAC Director stated that OFAC has engaged in discussions with Treasury  about the desirability of adopting this recommendation and that Treasury  continued to review whether certain changes in the technical definitions of  the Right to Financial Privacy Act would further enhance OFAC’s ability to  ensure compliance. However, as of August 2004, Treasury had not acted on  OIG’s recommendation.
section_title: Mechanisms the United States Has Used to Recover Iraqi Assets Could Be Applicable in Future Efforts
paragraphs: The United States has invoked domestic legal authorities and international  obligations and used coordinating bodies in its recent efforts to recover  Iraqi assets; some of these mechanisms could be applicable to future  efforts. Some mechanisms identified by U.S. officials have advanced U.S.  efforts to recover assets; others have been less successful than initially  expected. Some mechanisms initially developed to combat money  laundering and terrorist financing also have applicability to foreign regime  asset recovery. Other mechanisms were not initially used in U.S. efforts to  recover Iraqi assets and their use remains limited.
subsections: section_title: The United States Has Used Legal Authorities, International Obligations, and Coordinating Bodies to Recover Iraqi Assets
paragraphs: The United States has invoked domestic legal authorities and international  obligations and used coordinating bodies in its efforts to recover Iraqi  assets. Legal authorities and international obligations that the United  States invoked in pursuit of Iraqi assets include IEEPA and U.N. Security  Council resolutions respectively. Although there has been some success in  bringing about the return of Iraqi assets, multilateral implementation of  U.N. Security Council Resolution 1483 has faced challenges that have  limited its effectiveness. The working group the United States established  to coordinate the U.S. effort to recover Iraqi assets might be used as a  model for future efforts, but the U.S. government has not documented the  mechanisms used in past efforts that could serve as an evaluative basis and  guide for future efforts.
subsections: section_title: IEEPA and USA PATRIOT Act Allowed the United States to Vest Iraqi Assets
paragraphs: In October 2001, section 106 of the USA PATRIOT Act (P.L. 107-56),  amended section 203 of IEEPA (50 USC 1702) to authorize the President,  when the United States is engaged in armed hostilities or has been attacked  by a foreign country or foreign nationals, to confiscate any property,  subject to the jurisdiction of the United States, of any foreign person,  foreign organization, or foreign country that the President determines has  planned, authorized, aided, or engaged in such hostilities or attacks. Before  the adoption of section 106, the President could confiscate assets under the  Trading with the Enemy Act, but only after a formal declaration of war.   The President invoked section 203 of IEEPA when he issued a March 20,  2003, executive order vesting assets of the former Iraqi regime. The  executive order allowed the United States to vest about $1.9 billion of  frozen Iraqi assets and transfer them to the appropriate authorities for use  in Iraq.
section_title: May 2003 U.N. Resolution Requiring Members to Transfer Frozen Assets to Iraq Has Not Yet Achieved Its Goals
paragraphs: The United States worked with the U.N. Security Council to pass  Resolution 1483 on May 23, 2003, to pave the way for the transfer of Iraqi  assets held in other countries to the DFI. However, for a variety of reasons,  implementation of the resolution has not yet resulted in the transfer of all  frozen assets back to Iraq. U.S. officials did not anticipate the extent of  delays in returning the Iraqi assets to the DFI due to existing claims against  the assets and the domestic authorities of countries holding the assets.  State Department officials stated that they used experience from past U.N.  Security Council resolutions to help develop Resolution 1483.
Treasury and State Department officials said that although they anticipated  some difficulties, they thought Resolution 1483 would facilitate the  recovery and transfer of frozen assets more quickly than it did because it  contained a provision they believed would facilitate the transfer of Iraqi  assets to the DFI. However, other countries’ domestic legal authorities have  slowed asset transfers in some instances. Treasury and State officials  stated that they worked to find alternative means of facilitating countries’  transfer of assets to the DFI in instances where a lack of legal authorities  has been a problem. However, as of June 2004, other countries had  transferred about $847 million of the $3.7 billion in frozen funds worldwide.  Large amounts of frozen assets had not been transferred from some of the  countries.
Paragraph 23 of Resolution 1483 directs member states to freeze and  transfer funds “without delay” unless the funds are subject to a prior  judicial, administrative, or arbitral lien or judgment. The paragraph further  states that unless otherwise addressed, claims made by private individuals  or nongovernmental entities on transferred funds may be presented to the  government of Iraq. Paragraph 23 also provides that the funds generally  enjoy privileges and immunities equivalent to those enjoyed by the United  Nations. New or unsettled claims were supposed to be made to the  internationally recognized representative government of Iraq. However,  U.S. government officials stated that some U.N. members have had  difficulty implementing Resolution 1483 due to, among other factors, the  lack of (1) legal authority to implement it in their jurisdiction, (2) an OFAC- like government entity to assist in identifying assets, and (3) sophisticated  financial systems to freeze assets. The existence of business community  and third party claims has also complicated the process. Finally, according  to officials at the U.S. Mission to the United Nations, some countries have  expressed concern over the lack of transparency of the DFI. As a result,  they have been reluctant to transfer assets to it. Taken together, these  challenges have decreased the immediate effectiveness of Resolution 1483  and have hindered the United States and others in the international  community in implementing the resolution.
section_title: U.S. Government Formed the Iraqi Assets Working Group to Coordinate U.S. Efforts to Recover Iraqi Assets
paragraphs: Established in March 2003, the Iraqi Assets Working Group has focused on  coordinating asset recovery efforts for Iraq. Treasury leads the working  group. Its present members include officials from the Departments of State,  Justice, Defense, and Homeland Security; law enforcement agencies and  the intelligence community; and the National Security Council. The former  CPA was also a member during the time of the CPA’s existence. The  working group has brought together expertise from across the government  to coordinate the U.S. government’s efforts to recover Iraqi assets.  According to public statements, the working group’s goals are to    exploit documents and key financial figures in Iraq to better understand   secure the cooperation of jurisdictions through which Iraqi funds have  flowed so that working group members can exploit financial records  and uncover the money trail;   secure the cooperation of jurisdictions in which Iraqi assets may reside  to locate, freeze, and repatriate the assets;   engage the financial community in the hunt for Iraqi assets generally,  and specifically to secure the cooperation of financial institutions  through which Iraqi funds have flowed or still may reside;   develop a system to facilitate the fluid repatriation of funds; and   prepare for potential sanctions against uncooperative jurisdictions and  financial institutions.
subsections: section_title: Little Documentation of Past U.S. Government Asset Recovery Efforts Is Available to Guide Future Asset Recovery Efforts
paragraphs: Neither Treasury nor State Department officials we interviewed knew  whether the U.S. government had used a similar coordinating body for any  of its previous asset recovery efforts. These agency officials did not have  any documentation of mechanisms used in past efforts. In addition, one  State official stated that when he started to work on the effort to recover  Iraqi assets, he found little documentation of prior efforts to guide him.
According to OFAC officials, once a sanctions program is terminated, they  no longer maintain historical information on it. When we asked OFAC  officials for documentation of their past freezing and transferring  regulations and the results of these efforts, they were unable to respond in  a timely manner.
Both Treasury and State officials have stated that they believe the  collective efforts to recover Iraq’s assets, including efforts undertaken as  part of the working group, afford the United States an opportunity to  develop and institutionalize lessons learned for future recovery efforts.  Treasury officials stated that they have begun to use the working group as a  model for new asset recovery efforts and are considering creating an  umbrella interagency mechanism to oversee future efforts.
section_title: Mechanisms Developed to Combat Money Laundering and Terrorist Financing Strengthen Financial Systems Worldwide
paragraphs: Some mechanisms that were initially developed to combat money  laundering and terrorist financing may facilitate foreign regime asset  recovery by strengthening financial systems worldwide. In one instance, a  USA PATRIOT Act provision had direct applicability and was used to sever  a foreign bank’s access to the U.S. financial system. Other USA PATRIOT  Act provisions have a more indirect effect on asset recovery by  strengthening U.S. financial institutions’ anti-money laundering systems  and making it more difficult to hide assets. U.S. officials stated that other  mechanisms, such as the Financial Action Task Force (FATF) and  technical assistance the U.S. government provides to other countries to  strengthen their anti-money laundering systems, help strengthen countries’  financial systems and thus indirectly facilitate asset recovery.
subsections: section_title: Some USA PATRIOT Act Provisions May Facilitate Asset Recovery by Making It More Difficult to Hide Assets in the U.S. Financial System
paragraphs: Title III of the USA PATRIOT Act contains expanded provisions of U.S. law  to prevent, detect, and prosecute terrorist financing and international  money laundering at financial institutions already covered by prior laws  and extended these requirements to other financial service providers not  covered under prior laws. Treasury officials believe that a number of the  act’s provisions have a preventive effect that strengthens the anti-money  laundering safeguards of financial institutions and thus facilitates the  recovery of foreign regimes’ assets. More generally, to the extent that the  act’s provisions help strengthen the anti-money laundering systems of U.S.  financial institutions, increase transparency, enhance customer due  diligence, and increase reporting of suspicious financial activity, the  provisions make it more difficult to use the U.S. financial system to hide  illicit funds.
In May 2003, the United States used one section of the act to discourage a  foreign bank from illegally holding Iraqi assets. Section 311 of the act  authorizes the Treasury Department to designate specific foreign financial  institutions, jurisdictions, transactions, or accounts to be of “primary  money laundering concern.” Under this section, Treasury may require  domestic financial institutions with links to jurisdictions or institutions of  “primary money laundering concern” to take specific measures, such as  increased record keeping. This section also allows the United States to  restrict or prohibit access to the U.S. market. According to Treasury  officials, financial institutions may stop dealing with other financial  institutions located in a jurisdiction of “primary money laundering  concern” to avoid the increased record-keeping requirements established  by Section 311.
In May 2004, under Section 311, Treasury issued a notice of proposed rule  making to impose “special measures” against a Syrian bank as a “financial  institution of primary money laundering concern.” These special measures  will include severing correspondent accounts with the bank. Treasury  based this action, in part, on its belief that the institution had been used by  terrorists and to launder proceeds from the illicit sale of Iraqi oil.
Treasury officials stated that other USA PATRIOT Act provisions could  facilitate asset recovery efforts in the future. For example, Treasury  officials stated that Section 312 regulations, when finalized, will increase  the due diligence that financial institutions are required to exercise with  regard to certain accounts of foreign financial institutions or wealthy  foreign individuals. According to a Treasury official, one collateral benefit  of this provision has been the creation of databases to identify “politically  exposed persons” and their associates.
section_title: FATF and Technical Assistance to Help Countries Combat Money Laundering and Terrorist Financing Indirectly Facilitate Asset Recovery
paragraphs: State and Treasury officials noted that FATF has played a part in foreign  regime asset recovery through its role of identifying international best  practices and issuing standards. State Department officials said that the  United States’ involvement in FATF has strengthened the ability of  countries to implement asset freezes. Treasury officials agreed with State  on the indirect role FATF plays and stated that some of the best practices  adopted by FATF could have relevance to asset recovery efforts by  enhancing other countries’ abilities to recover assets. Treasury officials  also stated that Treasury has tried to encourage other countries through  FATF to search for hidden Iraqi assets.
The United States has worked with FATF to adopt and implement measures  designed to counter criminals’ use of the financial system. In 1990, FATF  produced a paper, “Forty Recommendations,” intended to assist countries  in their anti-money laundering efforts. These recommendations, which  have been revised twice, were intended for universal application. FATF  expects them to be accepted and implemented by governments wanting  recognition in the international community as jurisdictions that combat  money laundering. Following the terrorist attacks of September 11, 2001,  FATF issued new international standards to combat terrorist financing— the “Eight Special Recommendations.” The objective of these measures,  when implemented by countries worldwide, is to deny terrorists and their  supporters access to the international financial system by encouraging  financial institutions to implement record keeping and other safeguards.   The FATF recommendations on both money laundering and terrorist  financing are designed to assist countries in making their financial systems  more transparent and less vulnerable to misuse. FATF encourages  nonmembers to implement both the FATF Forty Recommendations on anti- money laundering and the Eight Special Recommendations on anti-terrorist  financing.
Treasury officials stated that, in their view, FATF, in and of itself, was not a  mechanism for recovering foreign regimes’ assets. The Treasury  representative to FATF stated that FATF is more of a process by which  countries cooperate with each other than an organization with extensive  personnel to recover assets. It has a small secretariat and relies on  members to do the majority of its work. Treasury’s representative to FATF  commented that the United States is also looking into ways for FATF to  maintain a database of information on members’ laws relating to   anti-money laundering and bank secrecy. The representative was not aware  of an effort to collect information on laws related to foreign regime asset  recovery but stated that this is a task FATF might be able to do. However,  he cautioned that FATF still had the limitations cited above.
In addition to its participation in FATF, the U.S. government has provided  technical assistance to governments to improve their capacity to combat  money laundering and terrorist financing. State officials stated that  technical assistance of this type could help countries recover assets of  foreign regimes within their borders because it helps them develop the  necessary legal authorities and investigative abilities to locate hidden  assets.
section_title: Use of Other Mechanisms for Asset Recovery Has Been Limited
paragraphs: The United States’ use of some other mechanisms to recover foreign  regimes’ assets has been limited. For example, Treasury officials stated that  the Egmont Group provides a valuable channel for exchanging information  with other countries. However, the Egmont Group was not fully  integrated in the search for Iraqi assets. Also, although not involved in Iraq,  private sector firms have played a role in past asset recovery efforts and  could potentially be used in future efforts.
subsections: section_title: Treasury Did Not Initially Use the Egmont Group to Obtain Information
paragraphs: Treasury officials stated that the Egmont Group provides a valuable  channel through which countries, through their financial intelligence units  (FIUs), can exchange financial investigative information. FIUs are  specialized governmental agencies that countries have created as they  develop systems to combat money laundering. The U.S. government did  not initially use the Egmont Group in its efforts to recover Iraqi assets  because, according to Treasury officials, Treasury and State decided to  work diplomatically through high-level financial ministry contacts.  Treasury officials stated that this method of exchanging information  worked well. In the Iraq case, Treasury officials stated they already knew  where many of the hidden Iraqi assets were located. They noted that  Egmont is primarily intended for use in facilitating the exchange of  information in ongoing U.S. and foreign criminal investigations. The  officials noted that, with Iraq, there was no such investigation. In March  2004 congressional testimony, a Treasury official stated that the Egmont  Group had been used more recently to exchange information related to the  financial activities of the former Iraqi regime and to communicate specific  Iraqi asset law enforcement-related inquiries to other countries.
section_title: U.S. Agencies Have Not Involved Private Sector Firms in Foreign Regime Asset Recovery Efforts
paragraphs: Private sector firms have played roles in some instances of foreign regime  asset recovery through civil lawsuits, investigative efforts, or both;  however, they have not played a role in recovering Iraq’s assets. In cases  where corrupt leaders have stolen from their countries, private sector firms  have been hired to locate those assets and file suit to have the assets  returned to their country of origin. Officials from firms involved in some of  these efforts stated that they have developed considerable expertise that  has allowed them to effectively recover assets. According to  representatives of private law firms, civil litigation may be the most  effective mechanism for recovering the stolen assets of corrupt  government officials because such proceedings are public, serving to  shame the individuals involved in stealing or concealing the assets.
Representatives of private sector firms cautioned that efforts of this sort  face challenges that can limit the involvement of private sector firms in  recovering assets. For example, locating assets and suing for their return is  expensive. Countries differ significantly in the laws that apply to  recovering a regime’s assets, and pursuing assets in these countries would  require expertise in the laws of each country. In many cases, the new  government sues to recover assets. For example, in 1999, the government  of Nigeria—after the 1998 death of General Sani Abacha, the former  President—sought the return of assets stolen from the country during the  Abacha regime. Nigeria had to hire those with the expertise to pursue the  assets in the foreign countries in which they were invested. The legal  requirements of other countries had to be met before the assets could be  returned to Nigeria. Some countries required the posthumous criminal  conviction of Abacha in Nigeria before funds that he had invested overseas  could be returned. The case was resolved when the government of Nigeria  negotiated a settlement with members of Abacha’s family in which it agreed  not to prosecute the family in exchange for some of the stolen funds.
Cases that have involved private sector efforts include the following:   In 1985, Congress retained a private firm to investigate reports that  Philippines President Ferdinand Marcos and his wife had secretly  amassed millions of dollars in private wealth. The investigation  confirmed that the Marcoses held assets located in the United States  and overseas that were worth almost a billion dollars.
In 1986, the Haitian government hired a private firm to locate hundreds  of millions of dollars appropriated by former dictator Jean-Claude “Baby  Doc” Duvalier. The investigations led to the seizure of bank accounts in  New York, London, Luxembourg, Paris, and Geneva.
After the 1988 terrorist attack on Pan Am flight 103 over Lockerbie,  Scotland, plaintiffs sued the government of Libya on behalf of the  victims. This resulted in a negotiated settlement in 2003.
In 1990, the Kuwaiti government hired a private firm to investigate the  financial network used by Saddam Hussein to hide assets in the West.  The firm was able to link Hussein to millions of dollars in assets held in  others peoples’ names in the United States and Europe, exposing some  of his front companies and agents.
In the more recent case of Iraq, however, assets in the United States were  vested and U.N. Security Council Resolution 1483 sought to protect assets  in other countries from the types of claims that would result from civil  suits. Private firm representatives stated that these actions removed the  incentive for parties to pursue litigation. Treasury officials stated that U.S.  government investigators were better positioned than the private sector to  pursue Iraqi assets because they had access to classified information and  the expertise to interpret what they found. They also stated, however, that  private investigators might be useful in helping analyze large volumes of  documents and other records.
section_title: Conclusion
paragraphs: The U.S. government, led by the Treasury and State Departments, has  achieved important successes in its current effort to recover assets of the  former Iraqi regime. However, the challenges it has faced in this and other  asset recovery efforts have complicated the process and could be  addressed in a number of ways. For example, improvement of the adequacy  of account identifying information supplied by intelligence and law  enforcement agencies could enable U.S. financial institutions to more  accurately freeze assets in response to OFAC freeze orders in the future.  Informing intelligence and law enforcement investigators of the kinds of  information needed at the earliest possible stage and faster declassification  of intelligence information could expedite the process.
The ability of OFAC, as the U.S. agency charged with administering and  enforcing economic sanctions against targeted foreign regimes and other  designated groups and individuals, to ensure financial institution  compliance with its sanctions could be enhanced if financial regulators  shared information from their examinations with OFAC. This information  could assist OFAC in enforcing its regulations by alerting it to financial  institutions at a higher risk of not complying with its regulations. Treasury  has not acted on a recommendation made by its Office of Inspector General  over 2 years ago to seek legislative authority that would facilitate OFAC’s  access to information from bank regulators’ examinations.
Recent efforts to quickly recover assets of the former Iraqi regime have not  been as successful as initially expected, in part, because of existing claims  against the assets and because other countries’ domestic legal authorities  have impeded their ability to freeze and transfer assets of foreign regimes  under various conditions, such as U.N. resolutions. U.S. officials have  worked with some foreign governments to make the required legislative  changes and have worked to devise alternative mechanisms for the assets  to be transferred. Our efforts to obtain information on coordinating or  other mechanisms used in past asset recovery efforts were unsuccessful, in  part, because we found little documentation of these past cases. U.S.  officials stated that they have learned a great deal in the Iraq case and that  the mechanisms used in this effort could apply to future cases.  Documenting the government’s lessons learned from the Iraq case would  provide a critical road map to ensure that the United States implements a  thorough and well-considered asset recovery effort in the future.
section_title: Recommendations for Executive Action
paragraphs: To improve the U.S. government’s readiness to move forward quickly in  future asset recovery efforts, we are making three recommendations:  The Departments of the Treasury and State should work with U.S.  intelligence and law enforcement agencies to improve the accuracy and  completeness of account identifying information needed by financial  institutions to identify and freeze assets of foreign regimes.
The Department of the Treasury should seek legislative authority, if  necessary, to enhance OFAC’s ability to ensure financial institution  compliance with sanctions by allowing financial regulators to share  complete information from their examinations with OFAC.
The Departments of the Treasury and State should develop and  document a compilation of lessons learned from the current effort to  recover Iraq’s assets that could assist in appropriately institutionalizing  and leveraging all mechanisms available for future efforts.
section_title: Agency Comments and Our Evaluation
paragraphs: We received written comments on this report from the Departments of  State and the Treasury. These comments and GAO’s evaluation of them are  reprinted in appendixes VI (State) and VII (Treasury). The Departments of  Defense, Homeland Security, Justice, State, and the Treasury, the Securities  and Exchange Commission, Office of the Comptroller of the Currency, and  the Federal Reserve Board also provided technical comments that GAO  discussed with relevant officials and included in the text of the report,  where appropriate.
State agreed with our recommendations regarding the need to improve the  accuracy and completeness of account identifying information and  document lessons learned from the current effort to recover Iraq’s assets.  State stated that it would continue to work with foreign governments,  Treasury, and U.S. intelligence and law enforcement agencies to improve  target identifiers. State also stated that it would be desirable to work with  the Department of the Treasury as well with their Missions to the United  Nations and Iraq to develop and document lessons learned that might serve  as a guide to future efforts. Although Treasury did not comment directly on  either of these recommendations, it stated that it will continue to strive, to  the extent applicable and permitted by law, to overcome the challenges of  repatriating assets presented by diverse international legal constraints.
With regard to whether it should seek a legislative change to allow financial  regulators to share information from their examinations with OFAC,  Treasury maintained that this issue has not affected the U.S. government’s  ability to recover regime assets but that further information sharing  between OFAC and the regulators would be helpful. Treasury stated that it  had discussed this issue with federal regulators and, based on these  meetings, it is uncertain whether legislative changes are necessary to  enhance information sharing between OFAC and the financial regulators.  Treasury further stated that it expects that comprehensive arrangements  will be in place shortly to enhance information sharing between OFAC and  the financial regulators. We agree that further information sharing between  OFAC and the financial regulators would be helpful, and we encourage  Treasury to seek whatever legislative solutions are necessary to overcome  any obstacles to further information sharing. We modified our  recommendation to reflect Treasury’s efforts and reaffirm the importance  of ensuring that information sharing is enhanced.
Unless you publicly announce its contents earlier, we plan no further  distribution until 30 days after the date of this report. At that time, we will  send copies of this report to the Secretaries of Defense, Homeland Security,  State, and the Treasury; the Attorney General; the Chairmen of the Federal  Reserve Board and the Securities and Exchange Commission; the  Comptroller of the Currency; and interested congressional committees. We  will also make copies available to others on request. In addition, this report  will be available at no cost on GAO’s Web site at http://www.gao.gov.
If you or your staffs have any questions about this report, please contact  Joseph Christoff at (202) 512-8979 or Davi M. D’Agostino at (202) 512-8678.  GAO contacts and key contributors to this report are listed in appendix  VIII.
section_title: Objectives, Scope, and Methodology
paragraphs: The objectives of our report were to (1) describe the approach the U.S.  government uses to recover foreign regimes’ financial assets, (2) examine  the challenges the United States faces in recovering foreign regimes’ assets,  and (3) examine the mechanisms the United States has used to recover  Iraqi assets and their applicability to future efforts.
To address all of these objectives, we interviewed key U.S. government  officials from multiple U.S. government agencies.  The agencies included  the Department of the Treasury (Executive Office for Terrorist  Financing and Financial Crimes; Office of Foreign Assets Control;  Financial Crimes Enforcement Network; and Internal Revenue Service-  Criminal Investigation);   the Department of State (Bureau of Economic and Business Affairs;  Bureau of International Organization Affairs; Bureau for International  Narcotics and Law Enforcement Affairs; and United States Mission to  the United Nations);    the Department of Justice (Criminal Division’s Asset Forfeiture and  Money Laundering Section, Counterterrorism Section, and Office of  International Affairs; Civil Division; and Federal Bureau of Investigation  Terrorist Financing Operations Section and Legal Attaché Program);    the Department of Homeland Security (Bureau of Immigration and  Customs Enforcement); and   the Department of Defense (Office of the Under Secretary of Defense  for Policy and Defense Intelligence Agency).
To address our first objective of describing the approach the U.S.  government uses to recover foreign regimes’ assets and our second  objective of examining the challenges the United States faces in recovering  these assets, we reviewed documents from the U.S. government, the United  Nations, and a nonprofit research organization, including testimonies,  reports, and relevant laws. We also interviewed representatives of several  large U.S. financial institutions responsible for complying with Treasury’s  Office of Foreign Assets Control’s (OFAC) regulations to freeze assets and  block transactions, two trade associations representing segments of the  U.S. financial services industry, two financial regulatory agencies, and two  self-regulatory organizations.
To address our third objective of examining the mechanisms U.S. officials  identified for use in recovering Iraqi assets and their applicability to future  efforts, we defined mechanisms to include legal authorities and  coordinating bodies that Treasury Department officials said have been or  could be used for asset recovery. Relevant legal authorities we reviewed  included the International Emergency Economic Powers Act (IEEPA),  sections in Titles I and III of the USA PATRIOT Act, and United Nations  Security Council Resolutions 1267, 1373, 1483, 1518, and 1546.  Our  discussion of foreign laws and regulations is based on interviews and other  secondary sources. Furthermore, we reviewed documents describing the  mission and operations of coordinating bodies that could be used to  recover foreign regimes’ assets, such as the mission statements of the  Egmont Group and Financial Action Task Force.
To identify and describe the role of the Iraqi Assets Working Group, we  interviewed officials from the Department of the Treasury and relied on  public statements describing this group’s goals and activities.  To identify  and describe U.S. efforts to provide technical assistance to other countries,  we interviewed officials from the Department of State and reviewed the  United States’ report to the U.N. Security Council committee established to  oversee implementation of Resolution 1267.  Finally, to determine the role  and use of private firms in efforts to recover assets, we interviewed  representatives of law firms and a consulting firm that have been involved  in past cases of asset recovery. We discussed with these representatives not  only their involvement in past cases, but also the extent to which they have  been or thought they could be used in the current case involving Iraq.
To help describe the activities of the Iraqi assets working group, a key  coordinating body used to recover the assets of the former Iraqi regime, we  requested the minutes of the working group’s meetings.  Treasury officials  noted that the working group’s minutes were classified and also related to  matters that remained sensitive. As a result, they did not provide us with  these minutes.  Due to the sensitivity of the matters in this particular  situation and the nature and timing of our engagement, we relied on public  statements and interviews with Treasury officials describing the group’s  goals and agency officials’ general descriptions of the working group’s  minutes to meet our reporting objectives.
We conducted our work in Washington, D.C., and New York City from May  2003 to August 2004 in accordance with generally accepted government  auditing standards.
section_title: Targeted Foreign Regimes Since 1979
paragraphs: The United States, acting unilaterally, through the United Nations (U.N.), or  both, has sought to freeze the assets of targeted foreign regimes to achieve  a range of foreign policy and national security goals. The table below  identifies the foreign regimes against which asset freezing sanctions were  first imposed in 1979 or later (even if those sanctions were subsequently  lifted), the time frame in which the asset freeze was or is in effect, the body  (United States, United Nations, or both) that imposed the freeze, U.S.  executive orders used to implement the freeze, stated reasons for the  freeze, and amount of assets frozen by the United States as of June 2004.
section_title: Key U.S. Legal Authorities Used to Recover Foreign Regimes’ Assets
paragraphs: International Emergency Economic Powers Act (IEEPA)
Provides broad authority to the President to declare a national emergency to deal with an unusual and extraordinary threat, which has its  source in whole or in part outside the United States, to the national security, foreign policy, or economy of the United States (50 U.S.C. §§  1701-06). The act gives the President substantial authority over foreign trade, including authority over property in which a foreign country  or national thereof has any interest with respect to any property, subject to the jurisdiction of the United States (50 U.S.C. § 1702). In  October 2001, section 106 of the USA PATRIOT Act (P.L. 107-56), amended section 203 of IEEPA (50 U.S.C. § 1702) to authorize the  President to confiscate any property subject to the jurisdiction of the United States of a foreign person, organization or country that the  President has determined to have planned or engaged in armed hostilities against the United States and vest all “right, title, and interest”  in a designated agency or individual.
Trading with the Enemy Act of 1917 (TWEA)
Provides the President with authority under certain circumstances to confiscate and vest foreign assets subject to the jurisdiction of the  United States, but only after a congressional declaration of war (50 U.S.C. App. §§1-44).
United Nations Participation Act (UNPA)
Authorizes the President to apply economic sanctions, including freezing of assets, called for by United Nations Security Council  Resolution (22 U.S.C. § 287c).
Imposes procedural limitations on Presidential declarations of national emergency under which foreign assets have been blocked or  frozen. A national emergency declared under the act automatically terminates on the anniversary of the declaration of the emergency  unless the President publishes in the federal register and transmits a notice to Congress stating that the emergency continues in effect  (50 U.S.C. §§ 1601-51).
After Iraq invaded Kuwait in 1990, the United Nations imposed sanctions  against the Iraqi regime; however, in 1996, the United Nations and Iraq  agreed on the Oil for Food Program, thereby enabling Iraq to pay for  humanitarian items. We estimated that between 1997 and 2002, Saddam  Hussein’s regime accumulated at least $10.1 billion in surcharges on oil  sales and illicit charges from suppliers exporting goods to Iraq through the  Oil for Food program. In its recent efforts to recover assets of the former  Iraqi regime worldwide, the U.S. government has engaged the services of a  variety of U.S. agencies and recently developed domestic and international  tools to recover these and other hidden assets. U.S. recovery efforts have  had varying results.
subsections: section_title: Estimated Revenue Obtained Illegally by the Former Iraqi Regime Exceeds $10 Billion
paragraphs: In August 1990, Iraq invaded Kuwait, and the United States froze Iraqi  assets. Shortly after, the United Nations also imposed sanctions against the  regime. Security Council Resolution 661, approved in 1990, prohibited all  nations from buying Iraqi oil and selling Iraq any commodities except food  or medicines. The resolution also required member states to block the  transfer of Iraqi assets from their countries. The United States amended its  sanctions consistent with the resolutions. Other nations similarly froze  Iraqi government assets in their countries.
In December 1996, the United Nations and Iraq agreed on the Oil for Food  Program, which allowed Iraq to sell a set amount of oil to pay for food,  medicine, and infrastructure repairs. Iraq’s oil revenue was placed in a  U.N.-controlled escrow account. From 1997 through 2002, we estimate that  the former Iraqi regime acquired $10.1 billion in illegal revenues—$5.7  billion in oil smuggled out of Iraq and $4.4 billion in surcharges on oil sales  and illicit charges from suppliers exporting goods to Iraq through the Oil  for Food program.This estimate is higher than our May 2002 estimate of $6.6 billionbecause it includes (1) oil revenue and contract amounts for  2002, (2) updated letters of credit from prior years, and (3) newer estimates  of illicit commissions from commodity suppliers.
Oil was smuggled out through several routes, according to U.S. government  officials and oil industry experts. Oil entered Syria by pipeline, crossed the  borders of Jordan and Turkey by truck, and was smuggled through the  Persian Gulf by ship. Jordan maintained trade protocols with Iraq that  allowed it to purchase heavily discounted oil in exchange for up to $300  million in Jordanian goods. Syria received up to 200,000 barrels of Iraqi oil a  day in violation of the sanctions. Oil smuggling also occurred through  Turkey and Iran.
In addition to revenues from oil smuggling, the Iraqi government levied  surcharges against oil purchasers and commissions against commodity  suppliers participating in the Oil for Food program. According to some  Security Council members, the surcharge was up to 50 cents per barrel of  oil and the commission was 5 percent to 15 percent of the commodity  contract.
In our 2002 report, we estimated that the Iraqi regime received a 5 percent  illicit commission on commodity contracts. However, a September 2003  Department of Defense review found that at least 48 percent of 759 Oil for  Food contracts were potentially overpriced by an average of 21 percent.  Food commodity contracts were the most consistently overpriced, with  potential overpricing identified in 87 percent of the contracts by an average  of 22 percent. The review also found that the use of middlemen companies  potentially increased contract prices by 20 percent or more. Defense  officials found 5 contracts that included “after-sales service charges” of  between 10 percent and 20 percent.
In addition, interviews by U.S. investigators with high-ranking Iraqi regime  officials, including the former oil and finance ministers, confirmed that the  former regime received a 10 percent commission from commodity  suppliers. According to the former oil minister, the regime instituted a fixed  10 percent commission in early 2001 to address a prior “compliance”  problem with junior officials. These junior officials had been reporting  lower commissions than what they had negotiated with suppliers and  pocketing the difference.
section_title: The United Nations Security Council Has Adopted Three Recent Resolutions
paragraphs: The United Nations Security Council has adopted three recent resolutions  regarding Iraq—1483, 1518, and 1546. The United States and other U.N.  Security Council members adopted Resolution 1483 to assist in the  reconstruction of Iraq and the establishment of a new Iraqi government.  This resolution lifted trade sanctions initially imposed on Iraq in 1990;  provided for the transfer of the U.N.’s Oil for Food Program to the Coalition  Provisional Authority (CPA) over a 6-month period; sought to freeze assets  of the former government of Iraq, Saddam Hussein, other senior officials,  and their immediate families (the former regime); noted the establishment  of a Development Fund for Iraq (DFI); and required all U.N. members to  transfer assets frozen in their countries to the DFI. Unlike recent  resolutions regarding the Taliban and terrorists worldwide, Resolution  1483 did not establish a committee to oversee its implementation. On  November 24, 2003, the United States and other U.N. Security Council  members adopted Resolution 1518, which established a committee to  identify individuals and entities whose assets were to be frozen under  Resolution 1483. On June 8, 2004, the U.N. Security Council adopted  Resolution 1546, which anticipated the end of the occupation of Iraq, the  dissolution of the CPA, and endorsed the formation of a sovereign interim  Iraqi government.
section_title: U.S. Efforts to Recover Iraq’s Assets Involve Many Agencies and Use Recently Developed Domestic and International Authorities
paragraphs: The United States has tapped the services of several U.S. agencies and used  recently developed U.S. and international authorities in its efforts to  recover Iraqi assets worldwide. About 20 entities, including those of the  Departments of Defense, Homeland Security, Justice, State, and the  Treasury, intelligence agencies, law enforcement agencies, and the National  Security Council, are involved in recovering Iraqi assets.
To lead the asset recovery efforts, the United States created an interagency  coordinating body headed by the Department of the Treasury. This group,  the Iraqi Assets Working Group, has developed a strategy to identify, freeze,  seize, and transfer former regime assets to Iraq. The working group’s goals  include exploiting documents and key financial figures or information on  fund flows, working with other jurisdictions where funds are located to  recover assets, working with the financial community, developing a system  to facilitate fund repatriation, and prepare for potential sanctions against  uncooperative jurisdictions and financial institutions. The working group is  leveraging the expertise of U.S. officials involved in efforts to recover  assets of terrorists and money launderers.
Provisions in the USA PATRIOT Act amended IEEPA to allow the President  to confiscate foreign property subject to U.S. jurisdiction in times of  “ongoing hostilities” or if the United States is attacked. These provisions  gave the President authority, invoked through an executive order, to  confiscate the property of the former Iraqi regime and to vest title to these  assets. In addition, according to the State Department, U.N. Security  Council Resolution 1483 was an important vehicle for requiring other  countries to transfer assets to Iraq. On May 22, 2003, the U.N. Security  Council adopted Resolution 1483, which (1) noted the establishment of the  DFI, a special account in the name of the Central Bank of Iraq; and (2)  required member states to freeze and immediately transfer to the DFI all  assets of the former Iraqi government and of Saddam Hussein, senior  officials of his regime, and their family members. The resolution also  included a unique immunity provision to protect the assets from new  claims.
section_title: U.S. Efforts to Recover the Former Iraqi Regime’s Assets Have Had Varying Results
paragraphs: In 2003, the U.S. government quickly vested Iraq’s assets held in the United  States and transferred them to Iraq. Similarly, the U.S. military seized assets  recovered in Iraq of the former Iraqi regime. The CPA has used most of the  vested and seized assets for emergency salary and pension payments to  Iraqi civil servants, reconstruction projects and other ministry operations.  U.S. officials noted that some other countries’ efforts to transfer Iraqi funds  have been slowed by their lack of implementing legislation.
subsections: section_title: The United States Transferred Nearly $1.9 Billion in Vested Assets to Iraq
paragraphs: On August 2, 1990, in compliance with a Presidential executive order,  Treasury’s OFAC issued regulations to financial institutions requiring them  to freeze Iraqi assets in the United States. More than 30 banks in the United  States identified and froze accounts with $1.4 billion in Iraqi assets.These  institutions held assets in accounts that accumulated interest.
In March 2003, the President invoked authorities, including the enhanced  authority in IEEPA, as amended by provisions in the USA PATRIOT Act,  and issued an executive order confiscating Iraqi government assets held by  U.S. financial institutions and vesting them in the U.S. Treasury. The order  resulted in the vesting in the Treasury of about $1.9 billion of the former  regime’s assets in the names of the government of Iraq, the Central Bank of  Iraq, Rasheed Bank, Rafidain Bank, or the State Organization for Marketing  Oil. All U.S. financial institutions holding such funds were ordered to  transfer those funds to the Federal Reserve Bank of New York, and 23  banks did so by electronically transferring the funds. Between May and  December 2003, the United States transferred more than $1.7 billion to Iraq  and $208 million to the DFI.
With respect to the $1.7 billion transferred to the CPA, according to  Treasury and Federal Reserve officials, Treasury instructed the Federal  Reserve Bank of New York to release portions of the funds to the  Department of Defense (DOD) upon the Office of Management and  Budget’s approval of the CPA’s spending plans. As of July 2004, the former  CPA had disbursed about $1.68 billion of the $1.7 billion for emergency  needs in Iraq, including salaries for Iraqi civil servants and pensions, and  for ministry operations.
section_title: The United States Seized More Than $900 Million in Iraq
paragraphs: The CPA informed us in June 2004 that the U.S. military, in coordination  with U.S. law enforcement agencies, had seized about $927 million of the  regime’s assets in Iraq. The U.S. military seized about $894 million in Iraqi  bonds, U.S. dollars, euros, and Iraqi dinars, as well as quantities of gold and  jewelry. This amount included $750,000 found with Saddam Hussein when  he was captured. Department of Homeland Security agents seized an  additional $32 million. The CPA was authorized to use these seized funds  for humanitarian and reconstruction efforts in Iraq. As of July 2004, the  former CPA disbursed used about $799 million for reconstruction activities,  including projects, ministry operations, and liquefied petroleum gas  purchases.
section_title: Other Countries Have Transferred about $847 Million to the DFI
paragraphs: To encourage other countries to transfer the funds to Iraq, the Secretary of  the Treasury requested that the international community identify and  freeze all assets of the former regime. Additionally, Treasury and State  officials said they have engaged in diplomatic efforts to encourage  countries to report and transfer the amounts of Iraqi assets they had frozen.  For example, since March 2003, State officials told us they have sent more  than 400 cables to other countries requesting that they transfer funds to the  DFI.
According to Treasury, other countries have frozen about $3.7 billion in  Iraqi assets. About $2 billion was frozen since March 2003. Treasury  officials reported that, as of June 2004, other countries and the Bank for  International Settlements had transferred about $847 million to the DFI.  Treasury officials noted that the remaining assets have not been transferred  to the DFI because some countries do not have the necessary legislation to  effect the transfer. Other countries are holding about $955 million pending  adjudication of claims. U.N. Security Council Resolution 1483 requires the  immediate transfer of Iraqi funds identified and frozen in these accounts to  the DFI.
According to U.S. officials, Treasury and State continue to leverage the U.S.  government’s relations with finance ministries and central banks to  encourage the transfer of Iraqi assets to the DFI. Treasury and State have  worked with countries holding Iraqi assets either to assist them in  developing legislation that would allow them to transfer Iraqi assets they  hold to the DFI, or to identify other ways they can transfer the assets  without violating their own laws. For example, in one case, an Iraqi bank  owning an account holding Iraqi assets located overseas formally requested  in writing a transfer of the funds to the DFI. The country holding the assets  was able to comply with the request and transferred the funds without  having to pass legislation. In another instance, a “mirror” account was set  up in the DFI and the funds from a country were transferred to that  account. Therefore, the funds were never technically transferred out of the  originating account. Some of the remaining frozen Iraqi funds are located in  financial institutions in Iraq’s neighboring countries or Europe.
section_title: Limited Progress Has Been Made in Recovering Hidden Assets of the Former Iraqi Regime
paragraphs: Although the United States has made progress in identifying hundreds of  individuals, entities, and accounts associated with the former Iraqi regime,  limited progress has been made in recovering the regime’s hidden assets.  Because the former Iraqi regime used a network of front companies, trusts,  and cash accounts in the names of the family members of the former  regime’s leaders and associates, it has been difficult to identify how much  remains hidden in the international financial system. U.S. government  officials have cited estimates ranging from $10 billion to $40 billion in illicit  earnings, although it is not clear what earnings went to whom.
According to U.S. government officials, U.S. government asset recovery  efforts have focused on exploiting documents in Iraq, interviewing key  financial figures, and convincing other countries to cooperate in identifying  and freezing illicit funds that have flowed through or still reside in their  countries. For example, Department of Homeland Security agents have  exploited Central Bank of Iraq records for leads regarding Saddam  Hussein’s procurement network to further investigations of U.S. entities  that conducted illegal transactions with Iraq. Internal Revenue Service  criminal investigators have conducted interviews of former finance  ministry individuals and exploited financial documents of the regime to  obtain leads on the location of targeted assets. The Defense Intelligence  Agency provides some of the research and analysis used to identify assets  of the former Iraqi regime.
In addition, according to Treasury and State officials, they are coordinating  efforts to gain the cooperation of other countries. For example, U.S.  investigators have identified over 2,600 accounts that potentially belonged  to the former regime in other countries. State officials are working through  their overseas embassies to get the cooperation of these countries to return  the funds to the DFI. Anticipating the end of the occupation of Iraq and the  reassertion of the full sovereignty of Iraq, the United States also supported  the adoption of U.N. Security Council Resolution 1546 on June 8, 2004,  which continues the obligations of U.N. member states to freeze and  transfer certain funds, assets, and economic resources to the DFI in  accordance with Resolutions 1483 and 1518 adopted in 2003.
section_title: Comments from the Department of State
section_title: Comments from the Department of the Treasury
paragraphs: The following are GAO’s comments on the Department of the Treasury’s  letter dated September 2, 2004.
subsections: section_title: GAO Comments
paragraphs: 1. We incorporated the updated amounts of Iraqi assets (1) transferred by  other countries to the Development Fund for Iraq, (2) frozen currently  by other countries, (3) held by other countries pending adjudication of  claims, and (4) transferred by the United States to the Development  Fund for Iraq. 2. Treasury took exception to our statement regarding their reluctance to  share the Iraqi Assets Working Group meeting minutes with us.  Treasury stated that it did not provide these meeting notes because  they are classified and related to ongoing matters that remained  sensitive at the time of the request. We note that GAO has statutory  access to classified information and is required by law to maintain the  same level of confidentiality as the agency from which we get the  information. Due to the sensitivity of the matters in this particular  situation and the nature and timing of our engagement, we relied on  public statements and interviews with Treasury officials describing the  group’s goals and agency officials’ general descriptions of the working  group’s minutes to meet our reporting objectives. 3. Treasury commented that the issue of whether OFAC should have  access to the financial regulators’ compliance examinations of financial  institutions is important and is being discussed within Treasury and  with the federal banking regulators, but maintained that this issue has  not affected the U.S. government’s ability to recover regime assets.  Treasury also commented that it is uncertain that legislative changes  are necessary to enhance information sharing between OFAC and the  financial regulators. Treasury said it is pursuing the issue and it expects  that comprehensive arrangements will be in place shortly to enhance  information sharing between OFAC and the financial regulators. We  agree that further information sharing between OFAC and the financial  regulators would be helpful, and we encourage Treasury to seek  whatever legislative solutions are necessary to overcome any obstacles  to further information sharing.
section_title: GAO Contacts and Staff Acknowledgments
subsections: section_title: GAO Contacts
section_title: Staff Acknowledgments
paragraphs: Thomas Conahan, Lynn Cothern, Philip Farah, Rachel DeMarcus, Ronald  Ito, Barbara Keller, Sarah Lynch, Zina Merritt, Tetsuo Miyabara, Marc  Molino, and Mark Speight made key contributions to this report.
section_title: GAO’s Mission
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