S. 1039 (and H.R. 4405)

(This piece originally appeared on Russia Beyond the Headlines)

I wonder how many members of the U.S. Congress have heard of Adam Montoya. In 2009, Montoya was sentenced to a prison term for counterfeiting commercial checks and credits cards. Shortly after arriving at the Pekin, Illinois, federal penitentiary, Montoya began complaining of abdomen pain.  For nine days, he pleaded with his guards to take him to the doctor; they refused and instead gave him Tylenol. On the evening of Nov. 12, 2009, Montoya reported having trouble breathing; a prison staffer promised to get him help the next day. But next morning, Montoya was found dead in his cells. The autopsy showed that he had died of internal bleeding caused by a burst spleen. Last year, the U.S. Department of Justice denied a wrongful death and personal injury claim filed by the Montoya family.

The Montoya case is unlikely to reach Capitol Hill.  Our lawmakers have no interest in the death of an “ordinary” victim of the U.S. criminal justice system; they prefer instead high-profile cases in distant countries.  Take, for example, that of Sergei Magnitsky, a tax attorney who died under suspicious circumstances in Russian police custody on Nov. 16, 2009 (what a sad coincidence!). After having accused a number of Russian law-enforcement officials in the embezzlement of funds from the state Treasury, Magnitsky was arrested and kept in detention without trial for almost a year.  For five days prior to his death, Magnitsky had complained of worsening stomach pain, but received no medical treatment.

No American interests were damaged in the Magnitsky case, but this didn’t prevent Sen. Ben Cardin (D-Maryland) from introducing, last May, of the “Magnitsky bill” (S. 1039).  The bill would deny U.S. visas to Russian officials implicated in Magnitsky’s death and also freeze their financial assets in the United States. Last week, a similar bill (H.R. 4405) was introduced in the House of Representatives by James McGovern (D-Mass.).

Expressing concerns that the adoption of the bill would hurt U.S.-Russia relations, the Obama administration took a preventive step: last summer, the State Department composed a list of 60 individuals related to Magnitsky’s death whose entry in the U.S. would be prohibited; the administration then argued that the composed list would make S. 1039 “redundant.” In addition, the White House wrote a memo highlighting multiple shortcomings of the bill. In particular, it was argued that the criteria for placing names on the “Magnitsky list” were so ambiguous that it would set a bad precedent for how the United States deals with human rights cases around the world.

In recent weeks, the Magnitsky bill returned to the focus of congressional attention; the reason is Russia’s upcoming accession to the World Trade Organization. Discussion is underway in Congress on what to do with the Jackson-Vanik amendment, the notorious relic of the Cold War that still deprives Russia of the permanent normal trade relations (PNTR) status as a punishment for a policy restricting Jewish emigration in the 1970s.  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, many in Congress refuse to just repeal it; they insist that something else should be put in place to hold Moscow accountable for what they habitually call “human-right abuses.”  A consensus is growing that the Magnitsky bill must be adopted first, followed by the repeal of the Jackson-Vanik amendment and granting Russia the PNTR status.

Interestingly, the Obama administration’s original opposition to S. 1039 seems to be gradually morphing into almost enthusiastic support – a change of heart driven by the Department of State and personally Secretary of State Hillary Clinton. Appearing before Senate Foreign Relation Committee in February, Clinton called again for lifting the Jackson-Vanik amendment, but stressed the “need to send a clear, unmistakable message to Russia that we care deeply about rule of law in Russia.” Clinton then suggested that Cardin could work with the White House to “achieve both goals.” Recently, Cardin came up with a modified version of the bill; the new version makes it more difficult to add names to the list of human right violators the bill would create.  Incidentally, the House version of the bill, too, takes into account a number of concerns articulated in the White House’s memo of last year .

Reiterating Moscow’s known opposition to the bill, Russian Ambassador to the United States Sergey Kislyak warned Congress that passage of the bill could “impair the ability” of the United States and Russia to work together on important issues.  He also promised that there would be “significant reaction” in Russia to any attempt to link the PNTR status with the subject of human rights in Russia.  As the adoption of the Magnitsky bill looks imminent, the Kremlin should start thinking what precisely this “reaction” will be.

About Eugene Ivanov

Eugene Ivanov is a PMI-certified Innovation Management Consultant who helps organizations increase the efficiency of their internal and external innovation programs.
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13 Responses to S. 1039 (and H.R. 4405)

  1. iastreb says:

    Maybe the Russian reaction should be a Montoya bill in the Duma and the Federation Council?

    • Eugene says:

      Montoya or Yaroshenko/Bout — the point is that Russia has no reason to be lectured by the country that has its own problems with human rights and the rule of law.

  2. Alex says:

    Hi, Eugene

    One of the eternal questions of the Russian intelligentsia (don’t read the word wrong🙂 – что делать? – , wasn’t it?
    If I were asked – I would say “do nothing”. Wait until the bill passed and then run information about it on all the Government TV channels every 5 minutes as an ad – “… and now, dear Russian capitalists, you know what happens when you move your funds overseas ” or as a quiz ” What is the difference between Democracy and Constitutional Monarchy?” (Britts should pay for this one).

    J-V , I would argue that recent events show that it is the US who makes many Russian Jews “невыездными”.

    Cheers

    • Eugene says:

      Hi Alex,

      I agree with you. One of the major reasons for pushing for the Magnitsky bill is Russia’s nervous reaction to it and to the JVA. I suspect that the very minute the Kremlin indicates it doesn’t care much, the drive for S. 1039 will diminish. Because practically speaking, it does nothing: the “bad” guys are already on the DOS list, and I doubt that they still keep — even if they did before — their money in the US after one-year warning.

      The real problem for the Kremlin, though, might be analogous bills in the EU: those will hit closer to home.

      Cheers,
      Eugene

      • Alex says:

        You should work in politics – you are able to refrain from sharp remarks while retaining the meaning.(when not on twitter🙂 ) . What would you say about the recent Kobzon story?

        European nations are also much more dependent on Russia (compare to US) – and except for Britts & very few insignificant nations, usually have enough common sense (or IQ) than to teach the Russians on how to run their country – especially, when this is unlikely to benefit anyone.

        • Eugene says:

          Thanks Alex,

          I promise you: I switch to politics as soon as I find a job that will pay me at least the same as my current (on occasions quite political too) job🙂

          The Kobzon story is a classic case of stupidity: in the 90s, every prominent Russian had ties with mafia in this or other sense, because the very state was a mafia. Now, some lower level clerk just doesn’t want to take responsibility to exclude Kobzon from the black list. Besides, Kobzon is a UR member, Duma deputy and a Jew — the poster boy of “fairness.”

          I agree with you on Europe and its dependence on Russia. My point was that any restriction on European travel will be felt by the Russian elites. I’d even predict that should this (a broad traveling ban) be adopted, Putin will have some explanation to do, and his reputation will suffer.

          • Dear Alex and Eugene,

            On the subject of Kobzon, following this sort of logic other countries would have been justified imposing travel bans on Frank Sinatra and Marilyn Monroe both of whom had well known mafia connections.

  3. Dear Eugene,

    This is a difficult comment for me to respond to since I agree with every single point you make in it. The only point I would make is that as always you make your points clearly and well.

    I have already set out at length my views about the Magnitsky case in an earlier comment I posted on your blog. I would say that I hope that Russia does not descend into tit for tat reactions or does anything silly, which will achieve precisely nothing except play into the hands of those in the US who do not want relations between the US and Russia to become normal or even improve.

  4. Eugene says:

    Dear Alexander,

    Thank you for your kind words. You could at least comment that I’m largely repeating myself. Which is true: Russia Behind the Headlines asked me to write about the Magnitsky bill, and I reposted the RBTH piece here.

    I’m afraid that there will be enough domestic pressure in Russia to do at least some “tit for tat.” Hopefully, Lavrov will prevent this response from being too silly.

    Best Regards,
    Eugene

  5. marknesop says:

    Eugene;

    You are largely repeating yourself. Aside from that directly-solicited criticism, this is an excellent piece. I cannot imagine the state continuing to pursue the Magnitsky case – not to mention excluding Browder from operations in Russia although summoning him for testimony – unless it thinks it has a good chance of making a case that will stick that Magnitsky was not the choirboy and “activist lawyer” (not a lawyer at all as far as I can determine) the greater world believes he was. That it continues to prosecute in the face of very bad press including weeping about poor Sergei’s mother’s agonies suggests to me the state is determined to show there was a larger scheme going on and Magnitsky was in it up to his ears, if not the architect.

    A Montoya Bill would play directly into the hands of the U.S. media, which would be delighted to point out Montoya was a convicted felon while Magnitsky was innocent as a child. The implication would be that a Magnitsky in the U.S. judicial system would have been immediately set at liberty, and could have gone to the hospital himself rather than being murdered by the state. Warmest regards,

    Mark

  6. Eugene says:

    Mark,

    Solemnly accepting your criticism, can I classify this piece as an “update,” not “repeat?”…

    Every single year, a few dozens of people die in pre-trial facilities in Russia. So the only reason Magnitsky became a celebrity in the US is Bill Browder going through the halls of Congress disseminating the word about him — and, as I strongly suspect, campaign contribution money along. (Cardin can definitely use some — he’s up for re-election this year.)

    You can understand Browder: a person working for him dies under murky circumstances. Normally, he would have to handsomely compensate the Magnitsky family for the loss of breadwinner — unless, of course, you claim that Magnitsky is a victim of a totalitarian regime, in which case, Brower obviously doesn’t have to pay anything, for he’s victim himself.

    And our lawmakers are only happy to support any legislative crap because they need a new leverage against Russia — after the nonsense of using the JVA became apparent even to them.

    Seems like a perfect storm of sorts to me.

    Best,
    Eugene

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