During the past few weeks, several items related to human rights have come to my attention. One involved the tragic death of whistleblower and lawyer Sergei Magnitsky, who died in the custody of Russian authorities after being detained under harsh conditions denied medical attention for nearly a year. A detailed piece concerning this particular matter appeared in the Aug. 9, 2011, Washington Post. In the words of author Sen. Ben Cardin, Magnitsky’s case “has come to symbolize the rampant and often violent corruption plaguing the Russian state. … These facts are accepted at the highest levels of Russia’s government, yet those implicated in his death remain unpunished, in positions of authority. Some have even been decorated and promoted.”
The article identifies several other prominent Russian citizens who have died under mysterious circumstances after taking principled stands against the oppressive Russian regime. These include, among others, Natalya Estemirova, a human rights activist, and Anna Politkovskaya, a journalist, both of whom were shot to death — presumably at the behest of government officials, who apparently decided that the best way to deal with such dissidents was to eliminate them. I was also reminded of the dioxin poisoning case of Ukrainian leader Viktor Yushchenko and the even more sinister poisoning of Alexander Litvinenko, a former KGB agent who defected to the West only to mysteriously die of radiation poisoning after he accused Vladimir Putin of ordering the assassination of Politkovskaya.
Last year, Sen. Cardin proposed a travel ban against 60 Russian officials involved in Magnitsky’s detention and demise. I have not seen the names of any of those identified, but it would be interesting to know whether Putin made the cut. In any case, the State Department approved the proposal last month, placing scores of Russians on a “blacklist” that would deny them entry to the U.S. But not content with simply keeping these undesirables from vacationing at Disney World, Cardin and others in Congress have determined that we should also enact a U.S. law addressing human rights violations that go unpunished in Russia. Certainly, the deaths of these individuals require investigation somehow, somewhere, if not in Russia.
Thus, for their valor, in recognition of their victimization, and ostensibly to punish those who allegedly committed these undeniable atrocities, Cardin and 20 other senators have co-sponsored the Sergei Magnitsky Rule of Law Accountability Act. This narrowly tailored bill (narrow, since it applies only to a small class of Russians) would forbid serious violators of human rights to travel to the U.S., freeze their U.S. financial assets, and publish their identities. This purpose of the law is to provide a “powerful deterrent for those craving respectability and legitimacy in the West.”
I had a sudden urge to read the actual bill for myself. Online I found both House and Senate versions, including an earlier one sponsored by Sen. John McCain, who, as we all know, has particular sensitivity toward victims of torture. The text of the Senate version may be found here.
It was a good bill, a noble bill, invoking numerous international organizations and human rights treaties including the European Convention of Human Rights, among others. I found it generally agreeable, except for one little problem: It was too focused on Russia. Why limit its scope? If we are going to be in the business of promoting human rights and taking a stand against torture and corruption, well, why not go all out? With just a little more tweaking, Congress could pass a law that limits the travel and bank accounts of ALL tyrants associated with official corruption and human rights violations. In fact, by simply substituting a few choice phrases, Congress might effectively generalize the law for adoption by, oh, the United Nations. After all, how can we God-fearing Americans stop at only Russian tyrants who condone and commit torture? In the words of a Yiddish sage, why should we let a good crisis go to waste?
I realized that I could assist Cardin in crafting this new and important piece of legislation that affirmed what was, indeed, customary international law. Giddy with excitement, I began to fantasize about my future career options, including possibly being hired as a legislative assistant, a policy analyst, or perhaps even a think tank fellow. I could see myself as a regular op-ed contributor to The Washington Post. To prepare myself for this new role, as an exercise I began brainstorming about how I would compose an article about the proposed (expanded) law. With full attribution to the framework already provided by Sen. Cardin, the following paragraphs are how I started out:
“This bipartisan effort sends the unambiguous warning that even if your home country looks the other way as you violate human rights and trample the rule of law, the United Nations will not stand by as an unwitting accomplice in your crimes. The legislation provides moral support to those who suffer or risk their safety to fight for justice. It will also go a long way in protecting international companies active in the world market that risk falling prey to raiding schemes and that may fear reprisal for speaking out.
“The threats and cynical reaction to my legislation further expose the character of those who hold power in nations where, despite occasional rhetoric from Washington, authorities have failed to take meaningful action to stem the rampant corruption or bring perpetrators of human rights abuses to justice. Their bluster contrasts sharply with the strong support on the international street for serious action against corruption and impunity.
“We must be willing to see beyond the veil of sovereignty that corrupt officials often hide behind. They use courts, prosecutors, police, and international instruments such as Interpol or mutual legal assistance treaties as weapons of intimidation, hoping that outsiders are given pause by their trappings of office and lack of criminal records. We must also protect the international financial system from those who would use it to launder ill-gotten gains.”
But when I got to this point, and specifically to the previous paragraph, I was, well, stumped… in a moment understanding that we could not, in fact, so generalize the Magnitsky law. It might be great in theory, but in practice it was just too risky, as it would expose the foibles of the U.S. in this very regard and set us up for our own inevitable day of reckoning. The impact of this realization was like being smacked in the head with a log.
I was overcome with empathy and grief. In particular, I sadly mused about those sincere but misguided souls in our federal service — some military, like me — who could no longer distinguish between “enhanced interrogation” and torture. As a former real estate attorney, I felt the pain of the many brokers and bundlers who would pay a heavy price for the international fiasco regarding conflated mortgage-backed securities (I mean, whether such folks were corrupt or just inept is an important legal distinction you don’t want some U.N. Tribunal making). But most of all, my heart ached for our leaders, including several former members of the executive branch and fellow lawyers. Even now some must forgo travel abroad for fear of zealous enforcers who don’t understand that we Americans only make the rules, but we don’t actually abide by them.
At this epiphany, I hung my head in shame while marveling at the irony of the final words I had revised: “We must not abandon humanitarian values in the process; nor should we minimize the power of our influence and example…. We must first make clear that the rule of law and respect for human rights advance better relations and increased trade, and they are not distant goals.”
The import of the whole matter suddenly hit me between the eyes. It wounded me to acknowledge that I had crossed out “American” values, because in reality they are no longer American. I sorrowfully wonder whether any others, and especially anyone in Congress, can even perceive the hypocrisy to which I refer… or if they are all so busy digging at the Russian mote that they are oblivious to the beams obstructing their own — and our own — otherwise exceptional vision.
