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Administration Comments on S1039 Final)

Administration Comments on S1039 Final)

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Published by Josh Rogin

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Published by: Josh Rogin on Jul 26, 2011
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1Administration Comments on S.1039 Sergey Magnitskiy Rule of LawExecutive SummaryWe share your concerns about the tragic death of Sergey Magnitskiy and have issued publicstatements condemning this tragedy and demanding Russian government action. We have raisedthis case privately at numerous meetings with senior Russian officials. Consistent with the aimsof S. 1039 and under existing law
 – 
which already bars admission to the United States to alienswho have engaged in torture and extrajudicial killings, Secretary Clinton has taken steps to banindividuals associated with the wrongful death of Sergey Magnitskiy from traveling to theUnited States. The Administration, therefore, does not see the need for this additional legislation.Among our concerns with the legislation as drafted are:The threshold for naming names is ambiguous and would set a precedent for how theUnited States deals with human rights cases around the world;The legislation imposes quasi-judicial requirements on the State Department that areoutside of our normal mandate, to include hearings that would have to be conducted byvisa officers to determine whether the allegations made against an applicant are credible
and whether they would affect an applicant’s eligibility to enter the United States,
that weare not equipped to meet.The bill is overly burdensome in that it requires an audit and report by all U.S. financialinstitutions regarding assets belonging to sanctioned persons;The bill is ambiguous as to whether it applies only to individuals connected to theMagnitskiy case or to any person responsible for gross violations of human rights;The bill does not include a provision for appeal, a normal part of due process, for asanctioned person who is the subject of an asset freeze; andThe passage of the legislation as written could have foreign policy implications that couldhurt our international sanctions efforts on countries like Iran, North Korea and Libya, and jeopardize other areas of cooperation including transit to AfghanistanOur specific concerns are detailed below:General ObservationsThe Administration is firmly committed to advancing democracy and human rights worldwideand to calling out human rights violations wherever they occur.President Obama, Secretary Clinton and other senior Administration officials have publicly andprivately raised matters of concern in Russia, from human rights violations to the erosion of democracy, and legal injustices and will continue to do so. Senior Administration officials haveissued over 75 public statements about Russian human rights violations and transgressions of therule of law and democratic principles. These statements can be found at:http://www.state.gov/p/eur/ci/rs/c41670.htm.The Administration also has initiated a number of affirmative measures to support democracy, human rights, and the rule of law in Russia.Regarding the specific case of the wrongful death of Sergey Magnitskiy, the Administration hasissued public statements condemning this tragedy and demanding Russian government action;has raised this injustice in private meetings, most recently during Foreign Minister
Lavrov’s
visit;
met with Sergei Magnitsky’s mother and his former colleagues to express our solidarity
 
2with their efforts to seek justice in his case; and participated in public events, including thoseorganized by Senator Cardin. In the spirit of the aims of S. 1039, Secretary Clinton has appliedexisting laws and authorities to implement the visa limitations on multiple individuals associatedwith the wrongful death of Sergey Magnitsky, based on the standards of evidence required forsuch restrictions. However, the Administration believes there is insufficient independently-sourced information available on most of the potential targets to meet the higher evidentiarystandard needed to defend the required asset freezes that S. 1039 seeks to execute, should theyresult in legal challenges by those on the list. Indeed, such evidence is unlikely to becomeavailable. The Administration, therefore, does not see the need for this additional legislation.In addition, we have some specific concerns about this particular legislation:
 
Previous U.S. visa bans and asset freezes have targeted the perpetrators of genocide or
mass killings, or a country’s political leadership in cases where it has been linked to gross
repressive measures against the civilian population, but this case is different in that itmost immediately involves persons implicated in the wrongful death of one individual.
 
Furthermore, the bill is overly burdensome in that it requires an audit and report to theTreasury Secretary by all U.S. financial institutions regarding assets belonging tosanctioned persons. Finally, the bill is ambiguous on whether the sanctions covered applyonly to those persons credibly linked to the Magnitskiy case, or, as language in§4(a)(2)(B) suggests, applies to all persons responsible for gross human rights violations,without limitation to Russia or the Magnitskiy matter.Senior Russian government officials have warned us that they will respond asymmetrically if thislegislation passes. Their argument is that we cannot expect them to be our partner in supportingsanctions against countries like Iran, North Korea, and Libya, and sanction them at the sametime. Russian officials have said that other areas of bilateral cooperation, including on transit toAfghanistan, could be jeopardized if this legislation passes. The Russian Duma has alreadyproposed legislation that would institute similar travel bans and asset freezes for U.S. officialswhose actions Russia deems in violations of the rights of Russian citizens arrested abroad andbrought to the United States for trial. We have no way to judge the scope of these actions, butnote that other U.S. national security interests will be affected by the passage of the S. 1039.One worry we have in particular is that the Russian government would begin to prohibit Russiancivil society groups from receiving U.S. financial assistance.Specific Concerns
Section 4 Comments
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Identification of PersonsSections 4(a)(1) and 4(a)(2)
The legislation seeks to impose travel bans and asset freezes on individuals involved withMagnitski
y’s detention and death in prison as well as individuals involved in the tax fraud
conspiracy allegedly perpetrated using Hermitage Capital companies (Sec 4(a)(1)). Thelegislation also contains a broad catch-all provision that would apply the punitive travel ban and
 
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asset freezes to any individual who is responsible for other “gross violations of human rights”
(Sec 4(a)(2)).
 
Section 212(a)(3)(E) of the Immigration and Nationality Act already bars admission tothe United States to aliens who have engaged in torture and extrajudicial killings. Theseprovisions of the INA are sufficient to cover persons involved in the death and detentionof Mr. Magnitskiy. Presidential Proclamation 7750 bars entry into the United States togovernment officials involved in corrupt activities. Individuals included on the listgenerated by Hermitage Capital as having been involved in Magnitski
y’s detention and
death in prison are already flagged in the visa adjudication (known as CLASS) systemused by visa officers. The bi
ll’s visa
restrictions are therefore unnecessary.
Section 4(c)
Requires the Secretary to provide, when practical, notice and an opportunity for hearing to aperson before the person is added to the list.
 
The legislation imposes quasi-judicial requirements on the State that are outside of ournormal mandate and that we are not equipped to meet. If visa officers were to holdhearings, as mandated by S. 1039, to determine eligibility to enter the United States, theywould be offering a form of due process that would be different from that offered to allother visa applicants, who currently do not enjoy any form of hearing other than the visainterview. At a minimum, additional resources would be needed for State to be able toimplement these provisions. The mechanism for providing notice would need to beestablished and procedures for hearing would need to be promulgated through rulemaking which would need to be included in the legislation.
Section 4(d)
Provides that Members of Congress can submit individual names to the Secretary, who isrequired to respond within 30 days as to whether or not the individual meets the criteria set forthin the act.
 
Given the broad coverage of the legislation noted above, Members of Congress couldsubmit names of senior Russian officials, thereby placing the Secretary in an untenableposition vis-à-vis her Russian interlocutors in advancing U.S. national security goals.When also coupled with the notice and hearing provision noted in the preceding point,otherwise confidential deliberations and decisions about the visa eligibility of a Russianofficial would likely become public. Thirty days would likely prove insufficient time togather evidence and hold the hearing.
Section 5 Comments
 – 
Inadmissibility of Certain Aliens and Waiver
Mandates that persons identified in section 4(a) are inadmissible to receive visa entry into theUnited States and revokes current visas of listed persons. Allows for a national interest waiverprovided the Secretary of State report to Congress on the justification.
 
Although section 5(c) does provide for waiver of inadmissibility of objectionable personson the grounds of national interest, the legislation does not provide a termination and

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