CREDIT: Russian Presidential Press Service (CC)

This article was first posted February 17, 2013, on Ambassador Matlock's blog, and is reposted here with kind permission.

A student at the University of Virginia asked my opinion of the Magnitsky Act and the Russian counter actions. I gave a reply in the discussion of the book, Reagan and Gorbachev, but will repeat what I wrote and elaborate on it here.

The action of the U.S. Congress in passing the Magnitsky Act and the reaction of Russian politicians that followed it remind me of school kids exchanging imprecations in the schoolyard. Except that, in the current instance, the fallout affects innocent people. The Magnitsky Act was not a way to encourage solution of the underlying Russian problem, which is the corruption of many elements of the Russian bureaucracy, including law enforcement. By diverting Congressional attention from pressing domestic problems, legislation such as the Magnitsky Act contributes nothing to solving the urgent tasks now facing the government of the United States. It is a diversion with an impact the opposite of that which was purportedly intended.

I do not argue that the treatment of Magnitsky was not a serious scandal. But it was a Russian scandal (despite the tangential involvement of Americans) and Russians, like everybody else, don't like other people minding their business. It is quite reasonable for the U.S. to refuse visas to persons involved (something that did not require legislation and in fact was being done before the legislation passed) but quite another thing to pass a law requiring that that be done. That set up a direct confrontation that actually reduced Russian government incentive to deal with the problem.

The Russian reaction is one that is going to cause greater damage to Russians than to Americans, particularly to the orphans who will not be able to find loving homes. It does very little damage to U.S. interests, so one may ask, why would the Russian government in effect penalize some of its most vulnerable citizens? Unfortunately, it is an important element of human psychology to respond to something considered an insult with an insult in turn. When you have a regime that needs the image of an external enemy to justify authoritarian rule, there is an incentive to make the most of any perceived insult even if it is nothing more than a statement of the truth.

But for an insult to be effective, it must be perceived as such and most Americans are blissfully unaware of what the Kremlin thinks of them or of the U.S. Congress, and even if they were paying attention they wouldn't care. They don't need Russians to tell them our Congress has been dysfunctional of late.

President Reagan understood that the best way to increase respect for human rights was by private diplomacy. He noted in his diary early in his presidency that we had been "too up front" in our human rights policy and needed to refocus on private channels. He also recast our comments to avoid direct demands on the Soviet government to do something but instead sought to establish a dialogue over how we could cooperate to improve respect for human rights. When Foreign Minister Shevardnadze asked Secretary of State Shultz, in their first private meeting, if he could raise questions about race relations and the status of women in the United States, Shultz replied, "Be my guest." He added that he thought we were making progress but we still had a way to go and could use all the help we could get. This attitude eventually brought about private negotiations that emptied Soviet prisons and insane asylums of political prisoners, established freedom of travel and emigration, and encouraged a relaxation and eventual end of press censorship.

How should we have handled the Magnitsky case? We should have notified the Foreign Ministry privately, without publicity, that until the case was clarified, visas would not be issued to the people involved and that we would assist the Russian government in its investigation by identifying any international movement of funds by the persons involved, their relatives and associates. But not a peep publicly. This would give the government a chance to bring the culprits to justice and take the credit for it. The guilty might still not be touched if their connections were so high as to give them immunity, but it would maximize the Russian government's incentive to do something.

There is another aspect of this. The Magnitsky Act was sold in part as a replacement for Jackson-Vanik, an amendment to the 1972 Trade Act that denied most-favored-nation status (equal trading rights) to non-market-economy countries (meaning Communist countries) that deny or restrict the right of their citizens to emigrate. The Soviet Union stopped forbidding travel abroad and emigration in its last year and the restrictions of Jackson-Vanik should have been lifted at that time. Once the Russian Federation became a market economy in the 1990s, there was no legal reason to apply Jackson-Vanik, even if Russia had restricted emigration, which in fact it did not. However, important elements in the U.S. Congress used Jackson-Vanik to pressure Russia on unrelated trade issues. This was a case not just of moving the goal posts, but of picking them up, putting them in a truck, and saying "We'll decide later where they belong. Meanwhile, you must move the ball another ten yards and we'll think about it." Not very persuasive. And it makes future demands and red-lines much less effective.

Finally, as an American, I find it outrageous that a Congress that cannot pass a budget, that threatens the nation's creditworthiness by playing political games with the debt ceiling, that has a confidence rating among our public in the single digits, would presume to teach other countries the elements of democracy. The State Department wanted to deal with this issue privately, but Congress refused to "lift" Jackson-Vanik (even though logically and legally it did not even apply to Russia) without the Magnitsky Act. Both sides are acting like headstrong juveniles, but in this case I would specify that the "sides" are the U.S. Congress, not the Obama Administration, vs. the Putin Kremlin, which controls the State Duma.

I hope that, despite the emotional outbursts on both sides, our governments will continue to cooperate in those many areas where our interests coincide. As for developments in Russia, the future will not be bright for its people if more is not done to curb official corruption and to nourish an independent judiciary with integrity. As for the United States, if our Congress continues to be incapable of meeting the country's urgent needs, succeeding generations will be doomed to live in a second-rate, declining power. In both cases, failure to move successfully in the 21st century world would stem exclusively from domestic causes, not from malignity or hostile machinations from abroad.

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