So the Magnitsky List is out -- as was expected -- and it's short -- although not as short as some feared. The State Department gave a briefing on it today and you can read Peter Baker of The New York Times explaining it here.
The briefing paper was released late Friday night, in a move that seemed typical of governments and corporations that want to keep out of the public eye and in the low troughs of the news cycle (although clearly some journos had embargoed copies).
The Administration never really liked the Magnitsky list and fought it hammer and tong, including from then-senator John Kerry, but in the end relented (and Russia's continued bad behaviour, kicking out USAID and arresting scores of demonstrators helped make the case for them). Yet it's been pointed out that this list had a publication deadline, and State was merely trying to meet the deadline in its release timing. (Hey, Thursday would have been better, especially given that there was never any mystery about who was on this list for them and they had it long ago -- an earlier release would have given more time for the Russian media and blogosphere to comment for today's news cycle.)
Thus the public list of persons believed to be responsible for serious human rights violations in Russia who will face sanctions in the US is now at 18 -- of which 16 are related to Magnitsky's death. And a second, classified list remains an intense object of speculation.
I have to say that as closely as I've followed this, I'm still perplexed by the classified nature of the list, i.e. that names cannot be issued. Supposedly this has to do not with the Administration's need to do business with some sort of butcher who is "an SOB, but our SOB" or need to keep options open with Russia -- which we always seem to "need" for all kinds of world problems (problems that are increasingly obviously of Russia's making, like Syria). Supposedly this has to do with the need for efficacy in listing -- if you put someone on a list, I guess you show your hand as to how you draw up criteria for such lists. It's my understanding from talking to various officials about this that the issue of classifying certain names is not about politics or needing to pull punches with Russia for any larger purpose, but a question of tactics.
Yet Peter Baker had this to say:
Others on the secret list were figures of such prominence in Russia that the administration feared identifying them might invite retaliation by President Vladimir V. Putin against similarly situated American officials like members of Congress.
I wonder if he's right about that and how it was sourced.
I'm quite prepared to believe that there are those in the Administration who want to de-fang Magnitsky or make it go away and are only making the best of a situation not of their chosing.
Yet the question of efficacy in listing as an art in sanctions cold war could also come into play -- at least, that's partly how I'm understanding it. So it's rather like NATO's answer to WikiLeaks and Anonymous, which kept hounding NATO to tell what its threshold was for the response to cyberattacks that would convert to kinetic attacks, i.e. real life bombing sort of attacks. And the answer given by NATO's rep at OSCE in Dublin (and again at the Brussels Forum) was that obviously, it can't tell enemies where thresholds are, or they'll play "catch me if you can" right around the edges, below the radar with lower-grade attacks designed to harry and harass and not incite a real bomb.
Now, I'm puzzled on the issue of OFAC and whether we could have had just OFAC function on Magnitsky-list candidates -- especially since they never did (or did they, on somebody like Viktor Bout?). I don't know what list exactly the State Department keeps Ramzan Kadyrev, the butcher of Grozny, on. We're told he's on the classified Magnitsky List -- the one name officials don't seem to mind leaking -- but therefore not on the public list. But some time ago, we got an inkling of where this was going when Kadyrev tried to bring his prize race horse to the US to race, the State Department called the race organizers and told them they wouldn't think well of it. I don't know if they forbade them, I think they just let it be known that it was not in the interests of the US -- and certainly not in the interests of human rights and would attract protest. I'm not sure how it was couched. But that there was a list and a response was the case.
If any name is publicized now, they are the target of a visa sanction not an asset freeze, if I have understood this correctly, because an assets freeze has a higher threshold of evidence and then in fact must be made public because notices are given to banks. Yet with various interstate bodies and coordinated actions, the US surely takes actions on certain bad actors that it doesn't publicize. Does it publicize every Interpol request? Could that interfere in bringing the person to justice? I wonder how that works or what the guidelines are.
In response to a question from NPR as to whether making the list secret would fuel Russian suspicions more (and I could add alternatively -- diminish the human rights advocacy impact of naming and shaming, a point CNN's reporter also indicated) there was this response:
The classified list is something the Congress put in. There are various reasons why it would be in our interest to put people on that list. The standard was vital to the national security, we explained to the Congressional staff why the people on that list were there.
But the Administration is the one to have put in the secrecy, as far as I know, so this makes no sense.
In any event, while this is being sorted out, there's the question of who these are -- and some of them do come out of the 60 "untouchables" identified by Magnitsky's colleagues.
It's a start.
And after this very good start on the road to justice for Magnitsky and other victims of state human rights violations in Russia, notably the American journalist Paul Khlebnikov, murdered in Moscow, there's this very, very good sign of a possible shift in the Obama Administration's thinking (or at least, in argumentation that probably Secretary of State John Kerry had to sign off on, I hope).
A Reuters journalist doing some Kremlin water-carrying cited at the briefing at the State Department today that "a senior Russian lawmaker, the head of the State Duma’s international affairs committee, called the list minimal, and he said it showed that the Obama Administration did not want to heighten tensions between Washington and Moscow". Ever hopeful!
And got this delightful answer from "Senior State Department Official One," God bless him!
We will hear various things from the Russians. The – I’ve learned not to try to take action based on what you think the Russian reaction might be. You –it’s – I think it’s better to do what’s in the law and what’s right and what reflects American interests and American values. And on human rights, then you let the chips fall where they may. We’ve played this one straight; we haven’t tried to game it.
I surely hope that this isn't just this individual's own learning curve or spontaneously-contrived answer. I do hope it means that the whole State Department Russian policy machine is in that learning curve. Truly, no one can or should game this, but do what is right. Yes, the Russians will howl. Yes, the "progressives," always whiplashed by the Kremlin as they have been for decades, will howl and even speciously cite a Soviet dissident like Sinyavsky to make their bad-faith case. Yes, there will be whiners and connivers who say that if we hadn't had the Magnitsky list, thousands of NGOs in Russia wouldn't be searched and harassed today.
Nonsense. The Kremlin is sui generis bad, and needs no prompting from us. They're the problem. We're not the problem here. That doesn't mean we don't have our own human rights wrongs, but unlike Russia, we have remedies for those wrongs and we use them to good effect. We don't have lawyers or tax experts dying in pre-trial detention.
So often these debates on news site forums take the idiotic turn of saying "Oh, we should shut up because we kill people with drones".
Two wrongs don't make a human right, I always say. Yes, we should not kill civilians with drones and should bring more accountability to such warfare, but yes, we have the means and institutions to do this, and Russia does not, and that's what's different and that's why we are needed to provide solidarity to victims in Russia. It's about human solidarity. It's not about a balancing scale or water mill with hydraulic functions ever reaching equilibrium. Universal standards are just that, universal, and we invoke them for ourselves as well as others.
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