“To impose sanctions on persons responsible for the detention, abuse, or death of Sergei Magnitsky, for the conspiracy to defraud the Russian Federation of taxes on corporate profits through fraudulent transactions and lawsuits against Hermitage, and for other gross violations of human rights in the Russian Federation, and for other purposes.”
The preamble to the “Sergei Magnitsky Rule of Law Accountability Act of 2011”
“…and for other purposes.”
As Russia is going to officially join the WTO this summer, discussion is underway in U.S. Congress on what to do with the Jackson-Vanik amendment (JVA), the notorious relic of the Cold War that keeps depriving Russia of the permanent normal trade relations (PNTR) status as a punishment for restricting Jewish emigration in the 70s. The Obama administration wants the amendment to be lifted arguing that with Russia in the WTO, not granting it the PNTR status will hurt interests of American businesses. While agreeing with the White House that the amendment should go, the Republicans in Congress refuse to just repeal the amendment; they insist that something else should be put in place to hold Moscow accountable for what they habitually call “human-right abuses.”
As a replacement, the so-called Magnitsky bill is proposed, a piece of legislation bearing the name of Sergei Magnitsky, a corruption whistleblower who died in Russian police custody in 2009. The bill introduced by Sen. Ben Cardin (D-MD) last May would impose a U.S. visa ban on Russian officials implicated in the Magnitsky death; it would also freeze their financial assets in the U.S. The administration, however, considers the bill “redundant” on the ground that last summer, the State Department already composed a list of 60 individuals related to the Magnitsky case whose entry in the U.S. would be prohibited. Instead, the White House called for the creation of a “civil society fund” (worth of $50 million) that would underwrite promoting democracy in Russia.
“Redundancy” is a euphemistic explanation of why the Obama administration doesn’t want the Magnitsky bill being adopted. The real reason is that S. 1039 is simply a bad piece of legislation. Last summer, the administration provided an extensive “administration comments” highlighting multiple shortcomings of the bill. The most salient points were as follows:
- Previous U.S. visa bans and asset freezes have targeted the perpetrators of genocide or mass killings; this bill is different because it involves persons implicated in the death of one individual. At the same time, the threshold for placing names to the “Magnitsky list” is ambiguous and would set a bad precedent for how the United States deals with human rights cases around the world;
- The legislation contains a broad catch-all provisions that could potentially apply to any individual who is responsible for “other gross violations of human rights;”
- The legislation imposes harsh quasi-judicial requirements on the State Department that are outside of its normal mandate; the DOS is simply not equipped to meet them. In particular, they include hearings that would have to be conducted by visa officers to determine whether the allegations made against an applicant are credible;
- Section 212(a)(3)(E) of the Immigration and Nationality Act already bars admission to the United States to aliens who have engaged in torture and extrajudicial killing. The bill’s visa restrictions are therefore unnecessary;
- The bill is overly burdensome in that it requires an audit and report to the Treasury Secretary by all U.S. financial institutions regarding assets belonging to sanctioned persons;
- The bill does not include a provision for appeal — a normal part of due process — for a sanctioned person who is the subject of an asset freeze.
Finally, it was said that “an initial inter-agency review of about 60 targets proposed in connection with the bill shows that there is insufficient information to meet the high evidentiary standard required to establish the responsibility of specific individuals for the harm alleged in the bill relating to Magnitsky…which is a serious issue in particular with respect to economic sanctions that are vulnerable to legal challenge.” (Emphasis is mine – EI)
In other words, while claiming that he cares about improving rule of law in the Russian Federation, Sen. Cardin had created a bill whose provisions disrespect the law of his own country, the United States of America.
This obviously doesn’t concern numerous supporters of S. 1039 around the world – including members of the “liberal opposition” in Russia – many of whom are unlikely to have even read the bill. They need S. 1039 exactly for the same purpose they cherished the archaic JVA: to put pressure on Russia, to have a “legal” ground for non-stop meddling in its domestic affairs. Remember: “and for other purposes?”
President Obama is smart enough to understand that creating of a “civil society fund” won’t be sufficient to overcome the congressional resistance to repealing the JVA; some “replacement” to the amendment seems to be inevitable to strike a deal. Besides, while the administration is sincerely troubled with the implementation of S. 1039 in its current form, it doesn’t appear to have any ideological problem with the bill in general. Appearing before Senate Foreign Relation Committee on Feb. 28, 2012, Secretary of State Hillary Clinton called again for lifting the JVA, but stressed the “need to send a clear, unmistakable message to Russia that we care deeply about rule of law in Russia.” Addressing directly Sen. Cardin, Clinton offered him to work together with the White House to achieve both goals, to which Cardin replied: “I look forward to working with you. I do think we can do both.”
The simplest interpretation of this exchange would be that in the coming months, the White House will be pressing Cardin to modify the bill to make it palatable to the administration. With a new version of S. 1039 in hand, President Obama will try again to force the Republicans in Congress to repeal the JVA. If they refuse, Obama will portrait them as hostile to the interests of American business – and make it a November election issue.