RESETTING THE RESET: WHAT'S BEHIND OBAMA'S PUSH AGAINST THE SERGEI MAGNITSKY RULE OF LAW ACCOUNTABILITY ACT? - Commentary

For all his pretensions of being a “transformative” president, Barack Obama’s foreign policy prescriptions are rooted in a deeply conservative and nostalgic tradition. When it comes to Russia, the tradition this White House channels most is that of Richard Nixon. This seemingly incongruous resemblance was well illustrated in a recent controversy over the nullification of a Nixon-era piece of legislation, the Jackson-Vanik amendment, which binds U.S. trade relations with autocratic regimes to those regimes’ human rights records. Jackson-Vanik is the thorn in the side of Obama’s “reset” policy with Russia, which wants to accede to the World Trade Organization—a major component of the reset. So long as Jackson-Vanik still applies to Russia, American businesses won’t be able to fully profit from that accession. President Obama’s push to repeal Jackson-Vanik has been described as cynical and manipulative by both the veteran Russian dissidents who benefitted from its passage in the 1970s and the younger generation of oppositionists who seek new instruments of American leverage against Vladimir Putin.

The Jackson-Vanik amendment was originally bundled into Title IV of the 1974 Trade Act and restricts bilateral trade with non-market economies on the basis of their allowance of foreign emigration. Written in categorical language and conceived by the late Senator Henry “Scoop” Jackson (D-WA) as a counterweight to Henry Kissinger’s policy of detente with Leonid Brezhnev, the amendment was clearly designed to punish the Soviet Union for refusing to grant emigration visas to its embattled minorities, particularly Jews. The Final Act of the Helsinki Accords was signed the following year, committing the Warsaw Pact nations to conforming to international human rights norms. Brezhnev thought that basket wouldn’t matter so much as the one over which the toughest negotiations about the Final Act depended: “Questions Relating to Security in Europe”, a suite of ten principles that respected the territorial integrity of member states as well as a policy of nonintervention in their internal affairs. Brezhnev was confident that the human rights component would be quietly ignored: Kissinger told him so.

Kissinger was little exercised about the plight of Soviet Jews in the U.S.S.R or about human rights in the Eastern bloc in general; the extent of his indifference is stunningly evident in the Nixon tapes released toward the end of 2010. In one recording dated March 1, 1973, Kissinger told Nixon: “The emigration of Jews from the Soviet Union is not an objective of American foreign policy. And if they put Jews into gas chambers in the Soviet Union, it is not an American concern. Maybe a humanitarian concern.” A few months later, Soviet dissident Andrei Sakharov delivered his judgment on the significance of a human rights-based foreign policy—and the dangers posed by Kissinger’s approach—in his Open Letter to the U.S. Congress: “The Jackson Amendment is even more significant now, when the world is embarking on the new path of détente, and it is therefore essential that the proper direction be followed from the outset. This is a fundamental issue, extending far beyond the question of emigration.”

Ford ultimately signed the Trade Act and the Jackson-Vanik amendment into law in 1975, but issued a waiver—one he renewed annually—for the Soviet Union, in essence nullifying the amendment’s raison d’être. In response, six prominent refuseniks, led by Sakharov and all scientists who had been refused exit visas, wrote another letter to Ford himself protesting the waiver. Jackson-Vanik was invoked against Moscow for the first time during the Reagan Administration. The results were swift and cataclysmic: 1.5 million Soviet Jews and other persecuted minorities emigrated from the Soviet Union in a way that both anticipated and arguably helped pave the way for Gorbachev’s perestroika and glasnost.

The American-Israeli scholar Yossi Klein Halevi has noted the power of a democratic superpower not only backing the right of a beleaguered minority in a totalitarian state but using its legislative branch to defy the express wishes of its executive branch in support of that cause. “The refusenik precedent”, Halevei wrote for the New Republic, “established the principle that dissidents willing to risk their security and their happiness for freedom deserve Western support, regardless of their movement’s apparent chances for success. . . . Non-intervention, as the refuseniks insisted, is itself a form of intervention, and on behalf of the oppressor.” Halevi castigated President Obama as the “spiritual heir” of Nixon for neglecting the Iranian Green Revolutionaries in 2009 in the same way Nixon neglected the refuseniks in 1973.

The Obama Administration argues that, while contemporary Russia is far from ideal, it is no longer a closed society that restricts emigration. It’s true that Russian oppositionists are (usually) free to travel abroad and return to Russia, and often travel to Washington to lobby Congress. With Jackson-Vanik still on the books, Russia’s pending accession to the WTO is handicapped, and the United States will not only be unable to reap the benefits of normalized trade relations, but will appear rebarbative and foolish.

There are two approaches to removing this obstacle to permanent normal trade relations between Russia and the United States: The first is to simply repeal the Act altogether. This would be symbolically important for Putin’s Kremlin, which views the amendment as a derogation of the Russian Federation’s standing in the modern world, if not as a hostile act by the United States. The second way to end Jackson-Vanik is to “graduate” Russia by an act of Congress, leaving the amendment in place against other countries with non-market economies, such as North Korea or some of the post-Soviet republics. (There is a precedent for this; in 1999, Congress graduated China from Jackson-Vanik in advance of China’s accession to the WTO.)

Several Russian oppositionists, including Boris Nemtsov and Vladimir Milov, both former government officials who have turned against Putin, and Alexey Navalny, the celebrated anti-corruption activist, stated their apparent preference for graduation in a statement drafted by Milov and posted on his blog on March 12. The open letter argued that “[Jackson-Vanik] limits Russia’s competitiveness in international markets for higher value-added products, leaving Russia trapped in its current petro-state model of development and preventing it from transforming into a modern, diversified and more hi-tech economy.” Significantly, the statement ended with this coda: “[M]uch more effective are targeted sanctions against specific officials involved in human rights abuse, like those named in the Senator Benjamin Cardin’s list in the Sergey Magnitsky case (Senate Bill 1039).”

Milov was referring to Sergei Magnitsky Rule of Law Accountability Act, which is now under consideration by the Senate and which will likely come up for a vote before Congress recesses in August. Spearheaded by Senator Benjamin Cardin (D-MD), the legislation is named for the Russian lawyer who exposed a $230 million tax fraud and was then framed for the crime by the true perpetrators, resulting in his torture and death in a Moscow jail in 2009. In Russia, “Magnitsky” has become a byword for the honest everyman done in for naively believing in the rule of law, and there is significant interest in the case amongst the Russian public. Cardin’s bill would not only impose travel bans and asset freezes on officials implicated in Magnitsky’s framing and death; it would also impose the same punitive measures against “gross human rights violators” and could be applied anywhere in the world.

The Kremlin is rightfully terrified of the bill becoming law, because it would hit the Russian elite where it hurts most: by constraining their ability to spend ill-gotten gains on Western luxuries or to deposit them in secure Western bank accounts. Ending this nexus between gangsterism and consumerism would be a more powerful measure than issuing demarches or making aggressive speeches about murdered journalists, attorneys or exiled antagonists living in Europe. State corruption is such an endemic problem that even Putin and outgoing Russian President Dmitry Medvedev have been compelled to acknowledge it; Medvedev recently admitted that an estimated $20 billion per year—roughly 2 percent of Russia’s GDP—goes missing from public coffers due to corruption. According to one Russian think tank, the actual figure is closer to $300-$500 billion, and Transparency International ranks Russia 143rd out of 182 countries in its 2011 Corruption Perceptions Index. Corruption is so deeply embedded in the system that any effort to tackle it seriously would undermine the ruling structure—perhaps fatally. As a consequence, Russian politicians have run a manic-depressive campaign of lobbying Congress to abandon the Magnitsky bill and have threatened to adopt retributive measures against Americans. For example, one Duma deputy suggested sanctioning the Americans involved in the arrest, prosecution and conviction of notorious Russian arms dealer Viktor Bout.

Cardin is Senate Chairman of the U.S. Helsinki Commission, and the stand he has taken in championing legislation opposed by a President from his own party is significant. Cardin is also close friends with a prominent Administration official: Hillary Clinton. The Magnitsky Act is modeled on an earlier bill first introduced by James McGovern, another Democrat. Despite his thinly disguised opposition to the Magnitsky Act, President Obama will almost certainly not veto the bill, as any step to unilaterally undermine a landmark human rights law could be politically calamitous for him on the cusp of a re-election. In light of this reality, a variety of American NGOs and human rights activists have advocated linking the repeal of Jackson-Vanik, or graduation of Russian from it, to the passage of the Magnitsky Act.

Meanwhile, the White House has been working to quash the bill in committee and offer conciliatory measures in its place. At two think tank events held in Washington, DC, in March, newly minted U.S. Ambassador to Russia Michael McFaul argued that the Obama Administration is not seeking to swap Jackson-Vanik with the Magnitsky Act, because the State Department has already issued visa bans to a handful of unnamed Russian officials involved in Magnitsky’s imprisonment and murder. (Foggy Bottom has repeatedly declined to identify those officials, and when I asked McFaul to do so on Twitter last month, he never responded.) “From our point of view, this legislation is redundant to what we’re already doing,” the Ambassador told a gathering of Russia watchers at the neoconservative Foreign Policy Initiative on March 6. On March 12—the same day Milov’s statement was posted online—McFaul told an audience at the Peterson Institute for International Economics that the President’s proposal to create a $50 million civil society fund for Russia is a better use of U.S. policy:

The pushback was immediate. Days after McFaul delivered those remarks, veteran anti-Putin activists Gary Kasparov and Boris Nemtsov, one of the signatories of Milov’s statement, took to the pages of the Wall Street Journal to criticize the Ambassador for presenting only half the story. They were pro-linkage. “Replacing Jackson-Vanik with [the Magnitsky Act] would promote better relations between the people of the U.S. and Russia while refusing to provide aid and comfort to a tyrant and his regime at this critical moment in history,” they wrote. Kasparov and Nemtsov also quoted Navalny in a similar vein.

Several sources I’ve spoken with told me that Navalny hadn’t realized his name would be used to sell a one-sided White House policy, and that, if he had, he wouldn’t have signed Milov’s statement. When I contacted him via email, Navalny affirmed that he thought Jackson-Vanik was an important “symbol” reflecting a strong U.S. position against authoritarian regimes, but that it now hurt U.S.-Russian commercial interests. But he was quite clear on the importance of its replacement with a human-rights focused instrument:

In my opinion, for the West to engage with Russia economically while maintaining an uncompromising stance against the abuse of human rights, the rule of law and principles of democracy would correspond to the best interests of the Russian people and the world as a whole. It’s difficult for me to comment and assess the internal American political considerations surrounding the repeal of the amendment and the adoption of the Magnitsky Bill. But no doubt the majority of Russian citizens will be happy to see the U.S. Senate deny the most abusive and corrupt Russian officials the right of entry and participation in financial transactions in the U.S., which is the essence of the Magnitsky Bill.

Navalny wasn’t alone in countering the Obama Administration’s line on linkage. Responding to an article written by David Herszenhorn for New York Times (also published on March 12) that echoed McFaul’s suggestion regarding the Russian opposition’s support for the repeal of Jackson-Vanik, several grizzled veterans of anti-Soviet agitation came forward to express their disdain at the Obama Administration’s cynical deal making. In a letter to the editor, Vladimir Bukovsky, a former Soviet political prisoner, Alex Goldfarb, Sakharov’s former assistant, and Tatiana Yankelevich, the former director of the Andrei Sakharov Program on Human Rights at Harvard accused the Obama Administration of

“Appeasement” is a conversation-stopper in a U.S.-Russian context, and its invocation by the custodians of Sakharov’s legacy will not have been accidental. The term points to the bitter irony that a quarter-century after the collapse of Communism yet another American President is being accused of soft-pedaling Russian human rights to further his own accommodation with the Kremlin. The debate over the Magnitsky Act and the “reset” policy had become a replay of the one over Jackson-Vanik and detente, though this time, the Russian opposition has been disingenuously invoked as a supporter of the President’s agenda.

“It was a cheap stunt,” one senior congressional staffer told me regarding McFaul’s selective highlighting of the Milov statement. The head of a prominent Washington-based NGO added: “McFaul didn’t represent the views of the people who signed that statement, which wasn’t well done either: only at the end did [the signatories] come out and say they advocated passing Magnitsky.” (No one I spoke to in Washington wanted to be identified on the record as criticizing the ambassador given both the sensitivity of the current debate and their professional regard for McFaul despite his policy prescriptions.) Strangely, the only Russian oppositionist involved in this affair who is now defending the administration’s line is none other than the author of that ill-constructed statement, Vladimir Milov.

Milov, who now heads the unregistered anti-Putin party Democratic Choice, told me that while he sees the Magnitsky Act as a “good” piece of legislation, he also sees linkage as an “extremely questionable” policy. “We need to make sure that we do not invoke visa wars between the countries which are not based on solid legal foundation,” he said. “We need some kind of judgment—a jury, etc—to judge guilt.” I responded that in Magnitsky’s case, the findings of the Russian Interior Ministry’s Investigative Committee, as well as those of an independent Public Oversight Commission that assessed Magnitsky’s prison treatment, more than adequately demonstrate plausible guilt for many of the individuals listed on Senator Cardin’s list; the problem is that the Russian government refuses to open criminal investigations into those named. Whatever its rule-of-law failings, the Russian state is still very good at paperwork: There is almost always a documentary trail of illicit activities, which whistleblowers and NGOs use all the time. Milov conceded that “the guilt has been shown plausibly” in Magnitsky’s case, but he nevertheless worries that there’s no “legal mechanism” to adjudicate other instances of possible human rights violations in Russia. He articulated a point that the White House has also been keen to emphasize: “Imagine tomorrow a lot of lobbyists unsatisfied with something happening in Russia or Asia come up with a list of people [in the United States] who they think were involved in some kind of wrongdoing. They would unfairly judge whether they were involved. This process can turn into an avalanche.”

True, but if threatening Viktor Bout’s prosecutors is a foretaste of how Russia intends to wage this visa war, the United States doesn’t have much to worry about. Milov’s juxtaposition also presupposes that a democracy that upholds the separation of powers will fail to investigate, indict and try parties suspected of wrongdoing, even if they are public officials. America’s legal system is not beholden to executive fiat; cases are not tried and re-tried until the “right” verdict is reached. These are hallmarks of Russia’s system of “Basmanny justice,” whereby a bureaucrat or intelligence officer need only phone the magistrate and get the judgment he wants. Also, Milov appears to misread the broader importance of the Magnitsky Act, which doesn’t just sanction the officials involved in the Magnitsky case but any gross human rights violators from any foreign country. A careful reading of the Milov-drafted statement on repealing the Jackson-Vanik amendment also reveals that, although it endorses the Magnitsky Act, it only calls for “targeted sanctions,” despite the fact that Milov has previously—and unambiguously—embraced the bill for what it is. “The Magnitsky Act will have a lot of influence over the ordinary, average decision-makers and bureaucrats within the system because previously they didn’t fear any potential justice to be brought on them as a response to their illegal actions,” he said earlier this year. “I think this will stimulate a lot of people in the system—judges, officers—to think better before they take part in any sort of new violations of people’s rights. That would be effective. It will have a lot of influence.”

Whatever the reason for Milov’s apparent reorientation to the Obama Administration’s standpoint, there is now a mounting pro-linkage insurgency in the Senate with the potential to dramatically undermine the “reset” policy. In a letter dated March 16— four days after McFaul’s Peterson Institute address—Senators Cardin, John McCain (R-AZ), Joseph Lieberman (I-CT) and Roger Wicker (R-MS) exhorted the Senate Finance Committee, chaired by Max Baucus (D-MT) and Orrin Hatch (R-UT) to delay the Jackson-Vanik repeal unless it is bundled into Magnitsky’s passage. The senators are not fighting this battle alone. In his March 21 testimony before the House Committee on Foreign Affairs, David Kramer, the president of Freedom House, the human rights monitor that has downgraded Russia’s rating from “Partly Free” to “Not Free” in the past five years, explicitly called on Congress to pass the Magnitsky Act: “It would send a terrible signal to lift Jackson-Vanik and have nothing to take its place,” Kramer said. “It would be perceived by the Kremlin as weakness on our part, a symbolic award to a Russian government undeserving of any such measures, and would undermine the very people in Russia whom we want to support.” Kramer’s reasoning is gaining momentum in Congress, and now poses a potential dilemma for President Obama. In the worst-case scenario, efforts to secure Permanent Normal Trade Relations will fail, an outmoded law will remain on the books, and U.S. policy will lose a vital tool in preempting the murder of Russian civil society figures, human rights activists and professionals. It would be ashes in everyone’s mouths, the Kremlin included. For this reason, linkage appears to be the only option to protect both vital business and human rights interests.

Strangely, the man at the center of this policy conflict is someone few would have thought would ever be put in the position of arguing against a ground-breaking human rights initiative. Supporters of the Magnitsky Act are perplexed by the curious about-face of Michael McFaul, a Russia specialist who made a career stressing the importance of post-Soviet liberalization efforts and the expansion of human rights norms in Russia. In early 2008, McFaul co-authored with Kathryn Stoner-Weiss a much-discussed essay in Foreign Affairs titled “Mission to Moscow: Why Authoritarian Stability Is a Myth.” Prefiguring both Russia’s economic setback that began in 2009, when its GDP shrunk by 7.9 percent, and the anti-Kremlin upsurge that has gripped the country in the past several months, they argued: “to the extent that Putin's centralization of power has had an influence on governance and economic growth at all, the effects have been negative. Whatever the apparent gains of Russia under Putin, the gains would have been greater if democracy had survived.” Many still believe that this remains McFaul’s opinion, and that his politics haven’t changed so much as his job requirements. In fact, McFaul still occasionally lets his unvarnished opinions slip: at a Peterson Institute event in April 2011, prior to his ambassadorial appointment, McFaul endorsed the very legislative update of Jackson-Vanik he now lobbies against, suggesting that he did in fact support the Magnitsky Act: “Let’s have another act,” he said just a year ago. “Call it the Jackson-Vanik Act of 2011.” It was only when pressed for on-the-record comment by Senator Richard Lugar of the Senate Foreign Relations Committee during his confirmation for the ambassadorship that McFaul walked back this endorsement, citing the Obama Administration’s “robust” approach to human rights in Russia and declining to reiterate the need for new legislation.

McFaul’s “reset” is facing increasing skepticism as a result of continued Russian intransigence on a host of bilateral issues, not to mention the return of Putin to the presidency. Moscow has not only refused to agree to robust sanctions against Iran over its illicit nuclear program (which at least one Russian nuclear scientist has facilitated); it has unwaveringly backed the murderous Assad regime in Syria, which it continues to supply with advanced fighter aircraft and weapons. If anything, Putin shows signs of hardening his position against the West, particularly as a propaganda tool in the wake of a sustained protest movement against his seemingly indefinite rule.

Signs of a crackdown are everywhere. Alexei Kozlov, a Russian businessman, was sentenced to five years in jail for fraud, which most civil society activists believe was retaliation against his wife Olga Romanova’s coordination of pro-democracy demonstrations. In February, Alexei Venediktov, the editor of the radio station Ekho Moskvy, one of the few remaining independent broadcast news outlets in Russia, was removed from the board of directors by Gazprom, the state gas giant that owns two-thirds of the company’s shares. Venediktov’s sin was asking Putin a question he didn’t like in January; Putin replied that Ekho Moskvy was an American propaganda station that “pour[ed] diarrhea on me from day till night.” A feminist punk band that denounced Putin in Red Square was arrested in March, as was Navalny—twice since last December. In his victory speech a few weeks ago, Putin waxed paranoid, describing his return to the presidency as a triumph over a foreign conspiracy.

There’s also been a feverish campaign of anti-Americanism emanating from the very Kremlin McFaul wants to win over, a campaign that has included vicious attacks against the Ambassador personally. The same week he arrived in Moscow, McFaul was assailed on Russian state television as an agent provocateur seeking to foment regime change. When McFaul met with a delegation of Russian opposition figures on January 17, including Duma deputies Oksana Dmitriyeva and Ilya Ponomarev (one of the signatories of Milov’s statement) from the Just Russia Party, those deputies were censured by the Duma Ethics Commission for failing to provide an “explanation” for their meeting. In the run-up to the Russian presidential “election,” a pro-Putin youth group aired a viral video comparing McFaul to a convicted child molester. He’s also had to refute allegations aired on Kremlin propaganda channel Russia Today—or RT as it’s now called—that he personally secured Navalny’s admittance to Yale University’s World Fellows Program. Most recently, McFaul accused pro-Kremlin state media outlet NTV of hacking his emails and gaining access to his schedule, because its correspondents were strangely always turning up wherever he went.

A few weeks ago brought the widely reported gaffe by President Obama, whose conciliatory approach to what his own embassy staff have described as a “virtual mafia state” in cables released by Wikileaks, appears undiminished. At the close of a ninety-minute one-on-one meeting with Medvedev in Seoul two weeks ago, Obama was caught on a live microphone saying that once he was re-elected, he would be more receptive to Russia’s positions on variety of contentious matters, including the missile defense shield NATO wants to install in Eastern Europe. What he needed most, Obama said, was “space” until after November. Medvedev dutifully agreed to relay the message to Putin. Even by a generous interpretation, the underlying message was clear: The reset would itself be reset in a second term.

It’s what Nixon might have done in an informal pourparlers with Soviet Premier Alexei Kosygin, twinning America’s engagement with Russia to the timetable of domestic politics. And while it’s been a full two decades since the fall of the Soviet Union, this President’s off-the-cuff reassurance to an authoritarian regime that is about to try a dead man will do little to convince either the U.S. human rights establishment or the bulk of the Russian opposition that this White House is on their side.