I've just come from a fascinating and very productive conference at the Kennan Institute in Washington, DC about the Jackon-Vanik Amendment that brought together scholars, lawyers, and practitioner, including a group of dedicated human rights activists in Russia. Lots of food for thought, including ample ventilation regarding the awful McFaul-Surkov Commission, but let me focus on the main theme, which was whether or not the famous Jackson-Vanik Amendment (JVA) should be repealed as a relic of the Cold War, and declared irrelevant as it was intended for the Soviet Union, which had a non-market economy and blocked freedom of emigration.
After hearing the day's worth of pros and cons, I would have to conclude my own personal position is that JVA should be kept in place, and not repealed as a classic and still useful piece of legislation that could never be repeated in the modern era, but that a permanent presidential and/or congressional determination be made that JVA no longer applies to Russia, because Russia now has a market economy, more or less, and does not block emigration.
There is a lot of confusion around this topic because the Russians have irritatedly demanded that the JVA be repealed, each time cleverly citing what they see as Obama's promise precisely of repeal; Jewish groups, particularly some in Russia, have called for it to be repealed; and few have really looked at how you could keep it, but stop its action forever on Russia with graduation-- that is, not with an annual repeat of a presidential waiver process, but a once-and-for-all determination that it *does not apply* to Russia.
This "graduating" of Russia would follow the model of graduating Ukraine back in 2006, something a number of groups applauded, though some disagreed. That would enable keeping JVA in place, for use on North Korea, or even places like Turkmenistan which maintain blacklists of those barred from departure -- yet free up stumbling U.S.-Russian relations for greater glory.
This simple construct -- graduate don't repeal -- seemed to be hard to get across, so avid is the desire of some to remove any "legacy of the Cold War," so heavy is the Russian pressure, and so eager are some who remain very, very concerned about human rights in Russia to appear fair and not be appearing to move the goalposts. I quite appreciate the creative ideas for continuing to keep the spotlight on Russian abuses, using all kinds of existing mechanisms, whether hearings at CSCE or reports from the US CIRF. But these activities, while merited, have no legislative action component.
Richard Perle, whom I recall as always being called the Prince of Darkness in the liberal circles I've travelled in, gave a very cogent and clear argument about why the law no longer applies, and moreover, explained how using the law itself, you can have the president issue a determination that it no longer applies. Let's disregard what Perle has supposedly been doing since the days of darkness of the Cold War, which colours people's perceptions of his motives, and focus on his valid lawyerly point, which I twice quizzed him and another lawyer on the panel about:
Is there in fact language in the JVA that enables the president to opt out of the annual JVA waiver process, and make a final determination about Russia to exempt Russia permanently, but keep the JVA on the books?
Answer: Yes, the language is very clear. As Perle pointed out, few people bother to *read* the law. If you read it, you will find it says thus, invoking the annual waiver process:
(b) and report to Congress that nation is not violating freedom of emigration
After January 3, 1975, (A) products of a nonmarket economy country may be eligible to receive nondiscriminatory treatment (normal trade relations), (B) such country may participate in any program of the Government of the United States which extends credits or credit guarantees or investment guarantees, and
(C) the President may conclude a commercial agreement with such country, only after the President has submitted to the Congress a report indicating that such country is not in violation of paragraph (1), (2), or (3) of subsection (a) of this section. Such report with respect to such country shall include information as to the nature and implementation of emigration laws and policies and restrictions or discrimination applied to or against persons wishing to emigrate. The report required by this subsection shall be submitted initially as provided herein and, with current information, on or before each June 30 and December 31 thereafter so long as such treatment is received, such credits or guarantees are extended, or such agreement is in effect.
(2) During any period subsequent to the 18-month period referred to in paragraph (1), the President is authorized to waive by the application of subsections (a) and (b) of this section with respect to any country, if the waiver authority granted by this subsection continues to apply to such country pursuant to subsection (d) of this section, and if he reports to the Congress that— (A) he has determined that such waiver will substantially promote the objectives of this section; and (B) he has received assurances that the emigration practices of that country will henceforth lead substantially to the achievement of the objectives of this section.
Not everyone want to have this action take the form of creating yet another Obama executive action, adding to the burden of accomplishing things by feeding the habit of executive orders.
Traditions in Congress being what they are, and practices and politics having a great deal with how law gets made, Mark Talisman, another speaker on the Kennan panel, pointed out that it would really be more appropriate if Congress enacted the "graduation" of Russia from JVA. The law has language for that as well, if I read it correctly:
I'd be happy to hear lawyers and Congressional staff much more versed in this law and its interpretation now to take a read on this to see if this involves a *permanent* determination, but it seems pretty clear (it was done for Ukraine, after all!).
If the President recommends the further extension of such authority, such authority shall continue in effect until the end of the 12-month period following the end of the previous 12-month extension with respect to any country (except for any country with respect to which such authority has not been extended under this subsection), unless a joint resolution described in section 2193 (a) of this title is enacted into law pursuant to the provisions of paragraph (2). (2) (A) The requirements of this paragraph are met if the joint resolution is enacted under the procedures set forth in section 2193 of this title, and— (i)the Congress adopts and transmits the joint resolution to the President before the end of the 60-day period beginning on the date the waiver authority would expire but for an extension under paragraph (1),
Most important, I didn't hear any of those wishing to do a good deed to Russia for whatever reason dispute the idea of "graduate not repeal", even those whose mantras were more geared to "repeal" -- once the nuance was explained.
In fact, there's a consensus by the policy wonks I listened to that in fact nothing will happen on this until Russia joins the WTO, and the U.S. drops other concerns, which have been welded into JVA not so happily, like poultry. If indeed it were so easy to dispense with an outdated and irrelevant piece of legislation, then it would not be taking so long.
But..why wouldn't you want to get rid of this "Cold War relic" all together? That's where the debate gets interesting.
The consensus of all the Russian rights activists at the conference (by sharp contrast with the AJC's Sam Kliger, a former Soviet refusenik and emigre who has lived in the U.S. for some years) was that repealing the law entirely, rather than merely stopping its application vis-a-vis to Russia, would be a huge mistake and send a terrible message to the Medvedev-Putin government that would fuel their sense of impunity and untie their hands further.
Ludmila Alexeyeva, the grandmother (and snegirochka!) of the Russian human rights movement, tactfully indicated that she wanted to avoid seeming to prescribe to the U.S. government what it should do -- a tact her own government doesn't feel necessary to observe (even portraying Obama as having advocated the "abolition" of this amendment) -- but one which activists, who are often accused of being Western espionage agency fifth columnists, are careful to distinguish. But Alexeyeva did make it clear that the wrong signal should not be sent because in fact, Soviet-like practices were returning.
What Putin seems to want to do is not just fix the present with regard to the JVA, but rewrite the past (and it seems every lobby expressing irritation with the JVA also try to prove that it never did any good for Soviet Jewry -- something that no impartial witness to that era could ever concede).
Historian and Memorial leader Arseny Roginsky made a somewhat convoluted hypothetical to explain what he and the other activists meant by this concept of not inciting further sense of impunity yet encouraging liberalism -- which may not have been entirely clear through the translation.
He said *if* Medvedev were in fact a force for liberalism fighting against the reactionary Putin, let's say (this is a hypothetical), and given that there is a tiny percentage of a chance this is true, because of a few signs here and there of a bit of a thaw (for example, recently a youth show on television was allowed to make satirical comments about the government), then the U.S. could perceive the lifting of JVA and its repeal as a "gift to forces for reform" that would be the U.S. carrot to Putin's stick (if we're to posit that this couple in fact are at odds -- remember, this is a hypothetical, even though, I might add, it's a cherished illusion for some here).
But...if in fact it was all fake (was the unspoken coda to this hypothetical), then the U.S. would have given away a gift it could never give again to achieve good.
I listened to all this and very much concluded to myself: a byproduct of the Soviet era with all its summits and brinkmanship and such is our ardent belief in reciprocity to be used for good as well as ill. It's like the hard left's notion that America is to blame for everything in the world, a notion that is inevitably as imperialist as the hawk, because it makes it seem as if making America the most powerful in the world -- if it is good -- will fix all the world's problems.
It wouldn't. Bilateralism is getting to be a terrible strait-jacket. We could calculate whether this or that move would be a strategically good unilateral move or good-faithed concession. I was all for getting rid of the Czech radar stations. But of course, I knew that this gesture wouldn't be followed by Russians also doing something helpful on, say, Iran. And violence in the North Caucasus would continue. And we have precious little leverage to affect this -- which is why we shouldn't squander that remaining resolve in the test of wills.
We are in a paralysis of such partnering now in a two-legged sack race where the intended effects of "good reciprocity" only hobble because they don't work to achieve their beneficial ends.
Some would say: then get rid of the JVA to stop the sack race and the hobble, and take any irritant out of U.S.-Russian relaions. I think we have to be more clever than that, and de-fang the application of JVA but keep it for its legacy and its promise for other situations, and frankly, it's historical proof of will.
Dobrynin's words from his memoirs, cited at the conference were emblematic: "“our biggest mistake was to stand on pride and not let as many Jews go as wanted to leave… Instead, our leadership turned it into a test of wills that we eventually lost".
Back in the day, the JVA grew out of a Soviet test of American will that the Soviets regretted making. It went badly for them when their will was in fact tested and resolve held firm with Sen. Jackson and Rep. Vanik.
The same test of wills is going on now, frankly, with the Russians trying to assert their will on a wide variety of fronts, either with inaction (Iran?) or negative action (removal of the Georgia mission, Zimbabwe veto) or outright pressure (OSCE summit). There isn't the liberalism that Arseny might be able to see closer to hand with his finely-tuned microscope.
The U.S. needs to meet this test of wills prudently and adequately, which is can do with removal of the *application* of the JVA without removal/repeal of the JVA *itself*. That's the right message to send to a country that has shown such disturbing impunity for the murder of journalists and other civic activists.