Sabirhan Hasanoff, a New York City accountant and dual citizen of the United States and Australia, was recently sentenced to eighteen years in prison by the Southern District of New York for aiding al-Qaeda. Like Walter White, Mr. Hasanoff appeared to be hiding in plain sight – he previously worked at top-shelf accounting firms such as KPMG and PricewaterhouseCoopers, and is a graduate of Baruch College. During his illicit conspiracy, Mr. Hasanoff scoped out the New York Stock Exchange as a potential terrorist site, and sent a one-page report to an Islamic extremist in Yemen. In addition, Mr. Hasanoff made regular cash donations to people he thought were affiliated with al-Qaeda and acquired items for the organization, such as a device that could be used to remotely detonate explosives. He even put his accounting skills to work – al Qaeda paid Mr. Hasanoff $50,000 to transfer funds and perform other tasks for the foreign terrorist network. As part of his sentence, Mr. Hasanoff is required to forfeit $70,000.
The main statutes Mr. Hassanoff violated are 18 U.S.C. §§ 2339A and 2339B, which prohibit anyone from providing “material support or resources” to terrorists, or concealing or disguising “material support.” Section 2339(A)(b) states:
“material support or resources means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.”
Mr. Hassanoff’s report on the feasibility of an attack on the New York Stock Exchange violates the “expert advice or assistance” provision, and his procurement of detonation devices clearly falls under support through tangible property.
Mr. Hassanoff knew he was furthering terrorism. However, even if we assume he did not have mens rea, he would still have no leg to stand on under the law. In Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010), the Supreme Court held that even providing “ostensibly peaceful aid” to terrorist groups is illegal, because, “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” Id. at 2724 (emphasis in original). The Court found support for this proposition by noting that Congress specifically removed a statutory exception in § 2339A(a) that excluded humanitarian assistance from the categories of prohibited material support. Id. at 2725. Thus, even if Mr. Hassanoff gave material support to al Qaeda without the intention of furthering terrorism, the legal result would be the same. This makes perfect sense when you consider the deceitful actions that terrorist networks often utilize. As the Supreme Court noted in Holder, “terrorist groups systematically conceal their activities behind charitable, social, and political fronts.” See id at 2725 (“[m]uddying the waters between its political activism, good works, and terrorist attacks, Hamas is able to use its overt political and charitable organizations as a financial and logistical support network for its terrorist operations”). Whether aid is meant to further terrorist activities or not, material supporters can be found liable regardless, because terrorist organizations cannot be trusted to differentiate between aid for terrorism and aid for other activities. See id quoting Mckune Affidavit, App. 134 (“foreign terrorist organizations do not maintain legitimate financial firewalls between those funds raised for civil, nonviolent activities, and those ultimately used to support violent, terrorist operations…[t]hus, funds raised ostensibly for charitable purposes have in the past been redirected by some terrorist groups to fund the purchase of arms and explosives”).
Do you think firms like KPMG and PricewaterhouseCoopers have a legal duty to thoroughly vet their employees for possible terrorist affiliations? If so, do you think they should be held vicariously liable for failing to detect this type of criminal behavior? Do you agree with the Supreme Court’s decision in Holder v. Humanitarian Law Project?
Sources:
Fordham International Law Journal
Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010).
These are interesting questions. I assume that Mr. Hasanoff was not working at the abovementioned firms when he gave the “material support” to Al Qaeda, but if he was then I think there is a serious question as to those firms’ liability.
The law on criminal vicarious liability is a bit different than that of the better-known civil standards. In order to be held vicariously liable criminally for the actions of an employee, it has to be proved that criminal act was done by a managerial employee or in furtherance of an order by a manager. See generally U.S. v. Ionia Management S.A., 555 F.3d 303 (2nd Cir. 2009). Therefore, I don’t think that Hasanoff’s case would satisfy that standard. Nonetheless, if it could be proved that Hasanoff was a manager, or that his manager was aware that he was providing services to a terrorist organization, then I believe that there would be a cognizable case for criminal vicarious liability.
To the question of the Holder decision’s propriety, I would have to say that I agree with the Court. Terrorist has plagued the international community again and again, and as a result I believe that we need strong laws to serve as a deterrent for behavior that engenders terror. I am aware, however, of the fine line that has been drawn by not only the Holder case, but by the statute itself. Obviously, the definition of “providing material support” is far-reaching. And, with that in mind, it is easy to formulate an argument that the statute paints with too broad a brush. See e.g. MATERIAL SUPPORT AND THE FIRST AMENDMENT: ELIMINATING TERRORIST SUPPORT BY PUNISHING THOSE WITH NO INTENTION TO SUPPORT TERROR?, New York City Law Review Spring 2010 13 N.Y. City L. Rev. 291 and MATERIAL SUPPORT OF PEACE? THE ON-THE-GROUND CONSEQUENCES OF U.S. AND INTERNATIONAL MATERIAL SUPPORT OF TERRORISM LAWS AND THE NEED FOR GREATER LEGAL PRECISION, Yale Journal of International Law Online, Spring 2011, 36 Yale J. Intl. L. Online 59.
All-in-all, I think that the Court in this case got it right, but I must admit that I do have concerns about the law’s broad reach. At the same time, terrorism threatens societal stability in the most fundamental ways: it promotes violence, it thrives on instability, and it used psychological manipulation to poison the minds of young, desperate individuals in order to further its goals.
While all organizations should probably do at least a criminal background check on its employees before they offer gainful employment, the question, I think, becomes more difficult when we are asking a company do see if a prospective employee has potential terrorist ties. First, what would the phrase thoroughly vet mean in practice? Does this mean that PWC and KPMG would have to contact the CIA and NSA to do a thorough investigation into the applicant’s history in order to determine potential terrorist ties? And what would be the general criteria in determining which employees get this treatment and which would not? And is possible terrorist affiliation enough to impose criminal liability on an employer?
Besides the situations where a company official has direct or actual knowledge of an employee’s potential or actual terrorist ties – or if there is a verifiable conspiracy in the works – it would seem hard to fathom a court imposing vicarious liability in a criminal proceeding.