The “Magnitsky Act,” which was passed with few dissenting votes by the House and Senate and signed by President Obama last week, is being hailed by Congress and the US media as an important step in the cause of human rights and democracy. The law is directed specifically at Russian officials suspected of being responsible for the prison death of the lawyer Sergei Magnitsky in 2009, but it casts a much wider net—requiring US visa and financial sanctions against all Russian officials guilty of “gross violations of human rights”
In reality, the “Magnitsky Act” violates the rule of law, contradicts American values and undermines US national security. Criminal and corrupt officials everywhere should be punished, but the language of this bill makes a mockery of basic tenets of American justice. Take, for example, the bill’s provision that names put on the list of people to be sanctioned can be based on “data” and “information” provided by NGOs and, perhaps, by other interested groups or people rather than through due legal process. (It’s not hard to imagine political or economic self-interest, here and even in Russia, expanding this new “blacklist.”) Not only does this violate the basic principles of presumption of innocence and due process but, as Ron Paul (R-TX) rightly observed, it is reminiscent of Soviet-era “people’s tribunals” for which “evidence was considered irrelevant.” (Representative Paul added, “If Congress really is concerned about human rights of prisoners, perhaps they might take a look at the terrible treatment of US Army Private Bradley Manning,” which Amnesty International characterized as “inhumane.”)
The original Senate version of this bill proposed targeting suspected human-rights violators from not only Russia but around the world, but this position upset the bill’s anti-Russian lobbyists. Under their intense pressure, the Senate voted for the House version, which from the beginning was directed exclusively at Russia. This too violates rule-of-law principles, since it implicitly calls for selective rather than universal justice. Clearly, the bill’s sponsors were motivated more by their hostility to the government of Russian President Vladimir Putin rather than by any principled concern for democracy and human rights. Moreover, the US executive branch already has all the means needed to deny entry to undesirable individuals and freeze their illicitly gained assets.
Indeed, American citizens may question why the bill’s main lobbyist, William Browder, head of the London-based Hermitage hedge fund—once a highly prosperous Moscow-based firm for which Magnitsky worked as a tax lawyer—is no longer a US citizen and is himself currently under investigation in Russia on suspicion of tax evasion. Surely, American procedures demand that any individual exerting such influence on legislation must have no material or other self-interest at stake. Was Congress absolutely certain that that condition was met in this case?
But, above all, Congress has recklessly and needlessly jeopardized US-Russian cooperation in vital areas from Afghanistan and the Middle East to international terrorism and nuclear proliferation. Even if Moscow’s tit-for-tat reactions to the Magnitsky bill are pro forma and toothless, its adoption, along with the US-Russian impasse over missile defense and NATO expansion, brings us even closer to a new cold war. Judging by its voting record in recent years, Congress hasn’t seen a war it doesn’t like—hot or cold.
America’s commitment to democracy and human rights around the world is of course to be applauded. The model, though, should be the way President Ronald Reagan, who long opposed the Soviet regime, recognized, with the rise of Mikhail Gorbachev, that essential change would have to come from within Russia, not from Washington. If such efforts are to bear fruit in the future, they must scrupulously adhere to the best values of America. This has not happened in the case of the Magnitsky Bill.
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