Don’t Hand Russia the Moral Victory of Abolition of Jackson-Vanik: Graduate, and Pass Magnitsky Bill

Minding Russia Blog

The year was 1975, writes Alex Goldfarb (in a book excerpted in snob.ru to come out soon which I’m translating).

Six Russian Jewish men sat at a kitchen table in Moscow in January. The scene was reminiscent of a famous panting by Russian artist Ilya Repin, said Masha Slepak, an activist and wife of prominent Soviet refusenik leader Vladimir Slepak. Except it was the opposite of Repin’s scene — no one was laughing or triumphant. The writers — all scientists who had been denied permission to leave the Soviet Union — were dejected, and feeling betrayed. They were writing to President Gerald Ford, and they were protesting his waiver in 1975 of the 1974 Jackon-Vanik Amendment, which had been passed due to the efforts of Sen. Henry Jackson, over the objections of Secretary of State Henry Kissinger.

The Jewish refusenik movement leader and human rights leaders such as Andrei Sakharov had applauded the Jackson-Vanik Amendment when it was passed in 1974; now it was in jeopardy. Alex Goldfarb, who served for a time as the Soviet dissident movement’s press officer, writes in his memoirs of how depressed the Jewish activists felt after Ford’s decision. A successful lever had been established after great debate; it was going to work — and now the political capital was in danger of being squandered.

Instead of trying to bind the Soviets by a law, Kissinger preferred to engage in quiet diplomacy and obtain “assurances” that emigration would go back to the 1973 numbers — they dipped in 1974. Nobody believed that the Soviets would keep to their word because they never did. Just how hard Kissinger objected we now know from Cheney’s memoirs, where Kissinger is quoted as saying that even if a Holocaust were under way in the Soviet Union, which “maybe” was a humanitarian issue, the US should not intervene — or risk “blowing up the world.”

Jackson, who ran a failed bid for the presidential nomination, advocated only granting the USSR most-favoured nation status (as it was then called) as an exception to policies regarding non-market economies, if the Soviet did not bar emigration (Jews were not specifically mentioned, but it was clear they were the group most active in attempting to leave). He conceded Ford’s temporarily approach at the time.

Jackson-Vanik’s initial effect is widely misconstrued — with Wikipedia’s misleading entry — as “harming” emigration merely because the numbers of people emigrating dipped in the first year after its passsage. No matter. The important thing to do was to call the Soviets’ bluff and keep pushing for it to be invoked. That’s what the US did eventually when President Ronald Reagan came into office, and that’s what eventually worked in fact to enable more than 1.5 million Soviet Jews and others to leave. That’s what it took: firmness, and principles, and law. These were the principles and law that Andrei Sakharov urged the US not to forego in his Open Letter to Congress at the time:

The Jackson Amendment is even more significant now, when the world is embarking on the new path of détente, and it is therefore essential that the proper direction be followed from the outset. This is a fundamental issue, extending far beyond the question of emigration.

I’ve repeatedly called for Jackson-Vanik not to be repealed as a law, but for an act of Congress to be passed that would permanently graduate Russia, as the law no longer applies. This sort of permanent graduation was given to China and enabled the avoidance of WTO problems. It was also done for Ukraine. There is absolutely no reason it can’t be done this way for Russia, as Russia is not special. The law needs to stay in place, on the books, and not be “repealed” as a law because there are still non-market economies that maintain discretionary exit visa regimes and blacklists, such as Turkmenistan and Uzbekistan.

The US Congress should not be handing the Kremlin a moral victory in general — but especially not now, when Russia is backing the mass crimes against humanity of Syria with $1 billion in weapons and political cover; when Russia is making trouble for the US on Libya, Iran, and other world situations (including efforts to cooperate in Central Asia against drug trafficking from Afghanistan) and most relevantly (in terms of the spirit of JVA) when it is cracking down on demonstrators against election fraud and political prisoners such as Mikhail Khodorkovsky remain.

This week, a group of opposition leaders in Russia called for the “abolition” of Jackson-Vanik, although they’ve never spoken on the topic before — and I can’t help but see the fingerprints of our ambassador, Michael McFaul, all over this (Goldfarb is even more critical). He has met with opposition leaders several times, to the great anger of the Kremlin, with not the best timing or tact as I’ve pointed out. The content of the conversations isn’t known; McFaul says he didn’t speak much, but listened. Perhaps he mentioned Jackson-Vanik. Perhaps other aides had informal conversations and let it be known that an appeal like this now would be welcome. McFaul is now triumphantly tweeting the Russian opposition’s support; he’s neglecting to mention that they did mention support of other sanctions under the Magnitsky Act.

Whatever the genesis, it’s an opportunistic appeal by Russian politicians — note that it is not from human rights advocates. They haven’t spoken. At a conference in 2010 organized by the Henry Jackson Foundation, prominent human rights leader Ludmila Alexeyeva said that she couldn’t really advise on an internal matter for the US, but cautioned against giving the Kremlin any kind of unnecessary moral victory when human rights hadn’t improved. Respected historian Arseny Roginsky, leader of Memorial, the society which researches the crimes of the communist regime and works against their legacy today, put it a different way: if there really were a difference between Putin and Medvedev (as the West has often fantasized), and if Medvedev really was doing more liberal things and succeeding, then such a reward as the lifting of JVA would be in order. But…he wasn’t. And hasn’t since then.

With the Kremlin bearing down both on McFaul and the Russian opposition, and Putin screaming that the State Department was behind every dissident poster and website, it seemed politic to do something to “help Russia” for once and gain credits both for the beleaguered American ambassador and his Facebook friends in the opposition. It has always been a centerpiece of Obama’s “reset” — as implemented by McFaul — to get rid of Jackson-Vanik. Unfortunately, Obama fed the Russians appetite for total abolition by always speaking of it not as a permanent graduation, and not with caution, but as “a repeal”. That presents a weak flank that the Russians have rushed in to gnaw.

We all concede that the goalposts cannot be moved, and we can’t keep Jackson-Vanik applying to Russia merely because Russia continues to do bad things. JVA was never treated as a “strict letter of the law” proposition, as hearings were always held about the overall human rights situation in the Soviet bloc countries, because the conditions that made people want to emigrate in the first place were rightfully examined — job discrimination, censorship, harassment, political imprisonment, torture, etc. But even so, now that Russia amply permits emigration — the problem is now in getting US entry visas and permanent residence! — it’s fine to graduate Russia.

Should any sort of conditionality be put on this? Some congressmen are rightfully concerned about Russia’s overall dismal human rights picture — it is rated as “partly-free” by the respected democracy monitor Freedom House. And they’d like to repeal (or hopefully, only graduate Russia from) JVA only if another piece of legislation, Justice for Sergei Magnitsky Act, is passed.

I’m not for making a strict conditionality here — if we want to set an example for the rule of law, we have to concede that Russia has to be graduated, given the intention and language of JVA.

AND I’m for simultaneously most definitely passing the Magnitsky Act, not as a conditionality, but as a proper response to the appalling death in detention of Sergei Magnitsky, a lawyer for Hermitage Capital who invested tax fraud by corrupt Russian officials and was tortured and left to die in a Moscow jail cell.

The Magnitsky Act also has other language about prosecuting the murders of journalists that have never been solved — this is all welcome, as the huge number of beaten and murdered journalists and other civil society actors in Russia is the greatest chill on free media and civic activism.

Obama, the State Department, and McFaul all oppose the Magnitsky Act. They should stop that. If Russia really is interested in better relations, firmness on human rights will only help the right forces that are desperately seeking change in Russia. As the late Efrem Yankelevich recounts, Sakharov outlined this sturdy position in My Country and the World and in his interview back in the day to George Krimsky of the AP: the West should remain unified and maintain its pressure on the Kremlin and must be prepared for a counteraction.

Given everything we’ve learned about the Kremlin in the last century — and it hasn’t changed in its tactics — I’m not understanding why all this is hard to do — graduate Russia from JVA, pass Magnitsky. This isn’t an obstacle in the way of trade or whatever good relations Russia might actually be interested in having (which I think under its current leadership is — not much). McFaul shared a press article about “strained relations” for his Facebook friends. I responded that “strained” is what they should be given the mass murder in Syria, and the fact that the police still break people’s arms just for peacefully assembling.

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