THE MAGNITSKY CASE

The New Yorker

June 28, 2012
Posted by Steve Coll

William Browder’s grandfather, Earl, led the American chapter of the Communist Party for more than a decade during the Presidency of Franklin Roosevelt; he admired Joseph Stalin, and in his final years, after retirement, he offered anti-capitalist shibboleths around the family table. Young William rebelled by earning a M.B.A. at Stanford University and entering business. In 1996, he co-founded a London-based hedge fund, Hermitage Capital, which invested in the Russian stock market in the era of the great thefts of state assets masquerading as privatizations, during the time of President Boris Yeltsin.

Hermitage did very well, but Browder became an increasingly vocal shareholder activist. He denounced the corruption and criminality rampant in Russian industry. Initially, he welcomed the rise of President Vladimir Putin, but by 2005, as it became evident that Putin’s henchmen had not come to clean up Russia but to build a criminal enterprise of their own, Browder became an irritant. Russia barred him from the country, but Hermitage managed to sell its holdings at a profit and get the money out to the West. The profits were so large that Hermitage made a two-hundred-and-thirty-million-dollar tax payment in one year to the Russian treasury.
In 2007, officers from Russia’s Interior Ministry raided the hedge fund’s Moscow office and hauled away corporate records. When they saw records about the tax payment, raiders allegedly conceived of what Browder and others have described as a brilliant fraud. A group of Interior Ministry and tax-department officials and professional criminals conspired to forge documents, create dummy companies, and invent contracts that showed that the two hundred and thirty million paid as tax should be refunded. Russian tax officials approved the request, but the refund seems not to have been sent to Hermitage—instead, the money was allegedly divided up among the conspirators.

Around this time, Sergei Magnitsky, then a thirty-five-year-old Russian lawyer for Hermitage who worked for an American firm, opened an investigation. In 2008, he testified to a Russian commission about the evidence of the conspiracy he had uncovered. He was thereafter arrested and accused of committing the massive fraud himself. In prison, he was kept in appalling conditions, fell ill, and was allegedly beaten with rubber truncheons. He died in custody on November 16, 2009.
On Tuesday, the Senate Foreign Relations Committee unanimously passed the Sergei Magnitsky Rule of Law Accountability Act. William Browder is among those who have been lobbying for the bill; Magnitsky’s supporters yesterday posted an eighteen-minute video presenting new evidence in the case. The Magnitsky Act would require the State Department to identify and sanction Russian individuals that it judges responsible for Magnitsky’s death, as well as other Russians “responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights.” Those listed by State would be denied visas to the United States and could be subjected to asset freezes and banking bans in the West.

The Obama Administration has lobbied against the bill, arguing that it already tracks and denies visas to the Russians it judges responsible for Magnitsky’s death. The State Department does this without publicity or transparency, however. The current approach also does not impose any financial sanctions; there is evidence that some of those accused have purchased expensive real estate and cars and opened fat bank accounts in Dubai, Cyprus, Switzerland, and Moscow.
There are other, unspoken, reasons for the Administration’s reluctance: it needs Russian coöperation on pressing problems—Syria’s civil war, Iran’s nuclear program, and U.S. supply lines to Afghanistan. If Obama is reëlected, the President may also push for a new nuclear-arms treaty to enact cuts well beyond those already agreed to in the New START treaty.

The Administration’s effort to hold the bill off seems likely to fail, for complicated reasons. Next week, Russia’s parliament will approve the country’s entry into the World Trade Organization, marking its arrival within the rule-bound global free-trade regime. For American businesses to benefit through greater trade in Russia, however, Congress must repeal an outdated Cold War-era sanctions law, known as Jackson-Vanik. But the congressional coalition that has come together around the Magnitsky Act (first introduced by Senator Benjamin Cardin of Maryland, a Democrat, but now supported by many Republicans) wants Obama to accept passage of that bill in exchange for Jackson-Vanik’s repeal.

The naïveté about Putin prevalent within the Bush Administration during its first term is long gone. Yet the question is whether the benefits of the Magnitsky Act–emotional satisfaction, a modicum of justice for some of Magnitsky’s persecutors, and other limited sanctions against Triple-A-level bad guys–justify the costs, including certain Russian retaliation of some type and a possible break in coöperation on Iran or Afghanistan.

The answer is yes. It is not a great idea for Congress to make foreign policy one emotionally charged bill at a time. Yet the virtue of the Magnitsky Act is that it rejects the fiction, so often presented at the theater of G-8 and other summits, that Russia is a normalizing country. Russia’s government remains, in substantial part, an oil-and-gas-bloated criminal enterprise. The country’s politics look brittle; thousands continue with remarkable resiliency to protest Putin’s legitimacy.

Obama’s willingness to swallow his own voice on human-rights issues, for the sake of foreign-policy pragmatism, has been a disappointment of his Presidency. Here is a way for Congress to speak for him. It should.

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