By Edward Donga
BU News Service
On Nov. 16, 2009, Russian lawyer Sergei Magnitsky, 37, died of heart failure in Moscow’s Matrosskaya Tishina Prison, after eight guards alledgedly beat him with rubber batons for more than an hour. An ambulance crew that was called to provide him with medical attention was detained outside his cell until it was too late.
According to a report issued by then-Russian President Dimitry Medvedev’s Human Rights Council, the death of Magnitsky followed his unlawful 2008 arrest and subsequent 11-month detainment, during which he was repeatedly denied medical attention and tortured by his captors while awaiting trial.
Despite these findings, no arrests have been made in connection with Magnitsky’s death, and none appear to be forthcoming. But his death has since become an international affair, with U.S. Rep. James McGovern, D-Mass., and U.S. Sen. Ben Cardin, D-Md., at the forefront: The two legislators worked together to enact a law late last year that seeks to hold accountable those in Russia who were involved.
The statute, formally known as the Sergei Magnitsky Rule of Law Accountability Act of 2012, this month resulted in publication of a list of Russian officials that the State Department says were responsible. These individuals have been barred from entering the United States, with some of them subject to a freeze on personal assets in this country.
At the same time, the Magnitsky law also has triggered a retaliatory ban on adoption of Russian children by U.S. citizens, while creating further complications in an already strained relationship between the United States and Russia. Although Russian officials claimed that the adoption law was in response to a handful of publicized instances in which adopted Russian children were mistreated by their American parents, the ban was widely viewed as retaliation against the United States for passage of the Magnitsky statute.
For his part, Rep. McGovern, while characterizing the recent State Department list as a step in the right direction, made clear that he feels a more aggressive posture is needed.
“While the list is timid and features more significant omissions than names, I was assured by administration officials today that the investigation is ongoing, and further additions will be made to the list as new evidence comes to light,” he said in a statement following release of the list.
So what was Magnitsky’s crime? He discovered and testified in court that officials in Russia’s Interior Ministry had used corporate entities belonging to his client, Hermitage Capital Management Fund, to illegally obtain a fraudulent $230 million tax refund.
Ultimately, Magnitsky was arrested on charges by Russian officials alleging that he was the one who had committed the fraud. He is now being tried in Russia posthumously.
In April 2010, six months after Magnitsky’s death, Bill Browder, the chief executive officer of Hermitage Capital Management, the investment firm specializing in Russian markets—and the man who had hired Magnitsky watch over his assets in Russia—brought the issue to the Helsinki Commission, which monitors human rights issues in Europe.
Sen. Cardin, who co-chairs the commission, responded by submitting a list to the State Department of 60 Russian officials whom he said had been involved in Magnitsky’s death. Sen. Cardin requested that their visas be immediately revoked and that they be banned from this country. However, the State Department denied his request.
Shortly afterward, the Tom Lantos Human Rights Commission—a bipartisan caucus of the U.S. House co-chaired by Rep. McGovern—held a hearing on the death of Magnitsky. Among those who testified was Browder, who had been expelled from Russia in 2005 after he was declared a threat to national security.
Leading up to his expulsion from Russia, Browder had increasingly found himself at odds with the Kremlin, as his firm actively sought to expose corruption in state-owned companies in which they were investing.
“At the end of my testimony, I asked Rep. McGovern whether he could assist Sen. Cardin in putting his weight and the weight of the committee on the State Department to ban these people who were involved in the murder,” Browder recalled in a telephone interview from his London office. “[Rep. McGovern’s] reaction was, ‘We can go one step further than that. Why don’t we make a law?’”
At that point, Rep. McGovern raised the idea of including a provision that would not only bar access to the country for Russian officials who commit human rights abuses, but would also freeze any assets that they held in this country.
But, as Rep. McGovern and Sen. Cardin began the process of shepherding their legislation through Congress, the bill ran into opposition from the Obama administration. At the time, the White House was engaged in an ongoing dialogue with the Kremlin in an effort to improve relations between the two countries.
Sen. Cardin, a member of the Senate Foreign Relations Committee, proved to be pivotal in guiding the bill through that panel – where the Obama administration was putting pressure on the committee’s chairman, then-Sen. John Kerry, D-Mass., to hold up the legislation. Kerry has since resigned from the Senate to serve as the Obama administration’s secretary of state.
Ultimately, as a compromise with the administration, the McGovern-Cardin proposal was combined with another piece of legislation to create the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012.
The new law repealed a provision, enacted nearly 40 years ago, that had been aimed at policies dealing with the emigration of Jews from the former Soviet Union. Jackson-Vanik had blocked the Soviet Union from obtaining “most favored nation” trade status, and its repeal enabled the United States to help Russia ease its way into membership in the World Trade Organization.
Rep. McGovern hailed the bill, which cleared Congress and was signed by President Obama last December, as one of the most significant pieces of human rights legislation that Congress has passed in decades.
“It is an important signal to other people around the world that if you want to trade with us—if you want to enjoy the benefits of a trade agreement—you have to respect the human rights of your people,” Rep. McGovern said.
But its passage was not without consequence.
Almost immediately, the Russian government enacted a similar measure, barring Americans whom it claimed were guilty of human rights violations from entering Russia.
Then, just weeks after the passage of the Magnitsky law, the Russian Parliament approved and President Vladimir Putin signed into law a measure that put a halt to the adoption of Russian orphans by U.S. families. According to the State Department, U.S. citizens adopted 962 orphan Russian children in 2011—the third largest number of any foreign country, behind only China and Ethiopia.
During a recent interview, Rep. McGovern expressed no regrets about passage of the Magnitsky law, despite the subsequent consequences. “I think it’s a terrible thing for Russia to use children as a political tool, as political pawns,” he said. “These are children with no families, and who through adoptions might be able to not only have a family, but have a better future.
Hannah Thoburn, a Washington-based independent expert who specializes in U.S.-Russian relations, suggested that the adoption ban may also have served a broader political purpose for former President Putin’s regime, which was the subject of widespread protests within Russia at the time.
“One of the things that Putin has always used, and that a lot of these Russian governments have used as a way of building up their own popularity, is anti-Americanism,” said Thoburn.
Earlier this month, under the provisions of the Magnitsky act, the State Department released a public list of 18 Russian officials it deemed to be guilty of human rights violations, 16 of who were said to have been involved in Magnitsky’s killing. Those 18 are barred from visiting the United States, and their assets here will be frozen.
Under the terms of the legislation, there is also a second list containing the names of additional Russian officials that the State Department has declined to make public, citing reasons of national security. It is not publicly known how many officials are on this list, but they are also barred from entering the United States, although they are not subject to the asset freeze.
Initial reaction to the State Department’s list has been mixed, even as the Russian government has released its own list of Americans no longer allowed to travel to Russia.
“I think it’s a great list to start out with. It’s got some of the worst offenders on it,” said Browder. “However, I think that the list could be a lot longer, and I think the list will be a lot longer.”
Observed Thoburn: “If it’s only 10 people, it’s frankly not going to make much of a difference. If you put 800 people on that list, it all of a sudden starts to strike, I think, a little bit of fear into the hearts of the average, middle-level bureaucrat in a Russian province somewhere.”
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