Congressional Bartering and the Death of Sergei Magnitsky

by Ben Van Meter, Intern for the Working Group.

The Sergei Magnitsky Rule of Law Accountability Act has shown the ugliness of the American legislative sausage-making process and how great the void between policy and politics can become. The act, which penalizes Russian officials implicated in the death of Sergei Magnitsky in 2009, was born from domestic political concerns unrelated to American legislators’ concern over the rule of law in Russia. As the next presidential and congressional elections approach, conservatives see an opportunity in the bill’s passage to oppose the Obama administration and show they are tough on foreign policy and particularly Russia (a common bugbear for the likes of Senator John McCain and presidential hopeful Mitt Romney). Liberals see an opportunity to buff their own credentials while championing human rights.

So with Washington’s legislative shock troops arrayed, why is this bill so important? Sergei Magnitsky was a lawyer employed by Hermitage Capital Management, an investment firm run by the UK businessman Bill Browder. Magnitsky was representing Browder’s firm on charges of tax evasion and fraud when Browder was expelled from Russia in 2005. The Russian government maintains that he posed a threat to national security, while Browder holds that his expulsion was due to his financial activism in exposing corruption in the companies he invested in, including state-owned ventures like Gazprom. Soon after, Hermitage’s firm was raided and tax documents stolen. Magnitsky claimed that he had found evidence of tax fraud—not by Hermitage, but by government-connected conspirators. Shortly after these accusations, Magnitsky was arrested, held in prison for 11 months, and died in custody from denial of medical treatment for illnesses contracted during his internment.

The eponymous bill going through Congress is the result of a lobbying campaign conducted by Browder, who has gone from being a Putin supporter to calling Russia “a criminal state” and has pressured governments worldwide to respond to his lawyer’s death. He even created a film about the issue which has been shown to the Canadian, German, Estonian, Polish, British, and European parliaments and the U.S. Congress. The bill aims to ban visas and restrict financial activity of Russian officials implicated in Magnitsky’s death. It comes also at a time of Congressional horse trading over Russian trade regulations. The Obama administration has been pushing to revoke the Jackson-Vanik amendment—a fossil of anticommunist trade policy still enshrined in law—in preparation for Russia’s admittance to the World Trade Organization. Normalizing trade relations with Russia is not just a matter of politeness; keeping the Jackson-Vanik amendment would violate WTO regulations and lead to penalties for American businesses. Politicians on both sides of the aisle are now arguing that for the Jackson-Vanik amendment to be repealed, the Magnitsky bill will have to replace it.

The bill is at once redundant and hypocritical if taken as seriously as its legislative backers insist. The State Department has already enacted visa restrictions against the Russian officials accused of complicity in Magnitsky’s murder, and it is unlikely that Russia’s human rights priorities will shift as a result of the new measure. Instead, the bill will only give more ammunition to anti-Western politicians in Russia, on whom the hypocrisy is not lost. Similar or worse human rights violations have been reported in many countries, but nations of greater importance to Washington lawmakers, like China or Pakistan, have not been subject to such measures. Moreover, the federal government has ignored cases similar to Magnitsky’s that have taken place within the United States (see the case of Adam Montoya).

Russia is not merely angry over U.S. hypocrisy (Putin takes that for granted), but is infuriated by what it sees as a needless intrusion in Russian domestic politics. While everyone from the Potomac to the Volga publicly agrees that Magnitsky’s death was a tragedy, the Russian government does not take kindly to a foreign government passing judgment on a crime that has not even reached court. Although the Russian government deserves criticism for the slow pace of the investigation into Magnitsky’s death, one can imagine the reaction of the U.S. government were a foreign government to pronounce American government officials guilty of a crime that a court had yet to rule on. Moreover, the whole affair has been an opportunity for American media outlets to review Russia’s faulted human rights history. Especially with accusations of wrongdoing directed at the state arms export company, Rosboronexport (also contracted by the United States to supply the Afghan government with weapons), for selling arms to Syria, Russia is not eager to have its dirty laundry aired at such a sensitive time in U.S.-Russia relations.

And yet this bill too shall pass. The Magnitsky bill has already sailed through the House of Representatives and was approved unanimously last month by the Senate Foreign Relations Committee.  The bill has already been obstructed by Obama supporters within the Senate like Senator John Kerry, but obstructionism is only politically feasible for so long.  Kerry, chair of the Senate Foreign Relations Committee, said last month that despite his reservations about the bill, he acknowledged that it would pass but warned of “the need for the United States not to always be pointing fingers and lecturing.” Although the Obama administration has opposed the bill’s passage, President Obama’s hands are tied domestically and internationally until the November elections. The best strategy of accommodating this piece of political reality into U.S. policy vis-à-vis Russia is by ignoring the bill entirely.  Although this means Russia will have to accept sanctions against some government officials, both Russia and America have shown some accommodation to domestic political necessity in negotiations, notably in discussing missile defense and Iran.  Since these officials are already barred from entering the United States, the details of the legislation are less important to the Russians than the corrosive effect this law has on Russia’s image in America and worldwide.

The only way to counter these fears is to demonstrate U.S. commitment to partnership and cooperation with Russia. There is far too much on the line to waste political capital and energy on what amounts to an unimpressive sideshow. America and Russia have numerous areas where cooperation is an absolute necessity, be it Iran’s nuclear program, Syria’s civil war, or the fight against terrorism. Economic opportunities in developing Russia’s Far East and energy sector promise massive monetary and geopolitical benefits to both Russia and the United States, and will foster greater private interaction and investment between the two nations. Our countries cannot afford to be distracted by parochial domestic squabbles.

2 responses to “Congressional Bartering and the Death of Sergei Magnitsky

  1. Fascinating and enlightening. Thanks for putting this into layman’s terms. I would like to hear more about what’s at stake directly with US-Russia relations in the 3 examples you list in the conclusion, but maybe there’s another blogpost to follow? Your anxious readers await notice!

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