ROBERT SIEGEL, HOST:
More now on the HSBC case and, more broadly, on what banks are obliged to do and what HSBC did not do. Jimmy Gurule is a professor of law at Notre Dame University law school, used to be undersecretary for enforcement at the Department of the Treasury. Welcome to the program.
JIM GURULE: Thank you.
SIEGEL: And first, someone makes a big deposit at a big bank. What must the bank do and what must it know about that deposit?
GURULE: Well, the bank has an obligation to monitor financial transactions through the bank to determine whether or not they're suspicious of criminal activity, including money laundering and terrorist financing. And if the bank determines that the transaction is suspicious, then they have a legal obligation to report that transaction to the Treasury Department.
It's difficult work. It's complicated work and banks are not required to be perfect, but they are required to act with due diligence and that was not done in the case of HSBC.
SIEGEL: Difficult, complicated, I assume also expensive, especially if it might result in turning away money. Is this the case of a bank saying we'd rather ignore the law than lose some money?
GURULE: I think that's exactly the case here. I think that bank officials at HSBC made a knowing calculation and that they would prefer to do business with Iranian banks, make a profit from those illegal transactions and in the process ignore their obligations under the law.
SIEGEL: There is a criticism often made of prosecutions for various corrupt practices. The corporations pay huge fines, but individual officers of the corporations are not prosecuted. In this case $1.9 billion is a huge sum, but as of June of this year, HSBC had assets of $2.6 trillion. I figure that's like fining somebody with a net worth of $3 million about $2,000.
How much of a deterrent is that if you're not going to prosecute some individual for letting this happen?
GURULE: Well, I think the HSBC settlement makes a mockery of justice, of the criminal justice system because I don't think until a bank official or bank officials are indicted, prosecuted and sent to jail are bank officials going to take their obligations seriously to prevent money laundering and terrorist financing.
SIEGEL: Professor Gurule, as a former prosecutor, would you say that there's a too big to be indicted factor at work here? That since the government doesn't want huge banks collapsing, it backs off the strongest steps that it might take against them?
GURULE: That's the argument being advanced by the Department of Justice for not indicting HSBC, but it offers no explanation whatsoever for why the Department of Justice has not indicted individual bank employees who are responsible for devising and implementing the fraud scheme.
SIEGEL: Have the requirements of banks gotten significantly tougher since 9/11 and since the awareness of terror networks out there, that it is now harder for a bank to avoid responsibility for checking these things?
GURULE: Well, that's true, but in this particular case, that wasn't the problem. I mean, here the bank officials knew that they were conducting transactions with Iranian entities and they engaged in a practice to strip the identifying information off of those transactions so the receiving entity would not know that the transaction originated from Iran.
SIEGEL: Some of these transactions happened several years ago, 2006 and before that. Is this deal being struck now because it's taken that long to uncover and investigate or because there are good lawyers who've been able to defer a day of reckoning with the Justice Department? Why?
GURULE: I think a problem actually stems with the federal regulators themselves because very early on, these issues or these suspicions surfaced and the regulators gave deferential treatment to the bank, saying, well, look, you really need to correct these problems. We'll give you six months to do so. Then, the six-month period would go by and they would meet again with the bank officials.
Well, you still haven't completed what you said you were going to do, but we'll give you another six months. And so finally, I think what forced the Department of Justice's hand here was the report that was released by the Senate's permanent subcommittee on investigations that the disclosed and very aggravating detail, the scope and the breadth of the money laundering and the criminal activity conducted by HSBC.
SIEGEL: So you think, in effect, the bank and its regulators were shamed into a public deal because of that?
GURULE: I think but for the Senate subcommittee investigation and report, we might not be here talking about an HSBC settlement.
SIEGEL: Professor Gurule, I think you very much for talking with us today.
GURULE: My pleasure. Thank you.
SIEGEL: Jimmy Gurule, law professor at Notre Dame, former undersecretary of the Treasury for enforcement, speaking with us about today's deal with HSBC. Transcript provided by NPR, Copyright NPR.