The biggest anti-corruption story of 2012

The FCPA Blog

President Obama signed into law earlier this month the Magnitsky Act. It targets travel and economic sanctions against those responsible for the jailing and death of Russian lawyer Sergei Magnitsky. But the importance of the law extends far beyond that.

For decades (and with more urgency since 9/11), the United States has been looking for a legal way to punish foreign kleptocrats. The Magnitsky Act is the answer.

The immediate aim is to hold people in Russia accountable for what happened to Magnitsky. After he uncovered a $230 million tax fraud apparently orchestrated by mobsters and government officials, he was detained without trial. After a year in custody, he died in jail.

No one in Russia has been arrested or tried for his 2009 death or the crimes he discovered.

Without the Magnitsky Act, there were obstacles for the U.S. to punish Russians implicated in the case. The FCPA only reaches bribe payers and not bribe takers. A newer law, Presidential Proclamation 7750, enacted by George W. Bush in 2004, allows the State Department to deny U.S. visas to kleptocrats and their cronies — but only in secret, never naming those targeted. And the DOJ’s more recent Kleptocracy Asset Recovery Initiative uses cumbersome asset forfeitures against crooked foreign leaders but doesn’t impose any punishment on the individuals themselves.

The Magnitsky Act — passed with overwhelming bi-partisan support in Congress — fills the legal gaps. It requires naming publicly the Russian kleptocrats implicated in Magnitsky’s death, it bans them from entering the United States, and it streamlines the legal process to freeze their U.S. assets.

Some have criticized the Magnitsky Act because it punishes people without giving them the right to trial. But as soon as President Obama signed it, Senator John McCain, a co-sponsor, brushed aside those concerns and talked about plans to go global with the new law.

Next year, he said, he expects Congress to expand the law to reach kleptocrats anywhere. Meanwhile, McCain said, the Obama Administration should ‘use its own executive authority at this time to apply similar kinds of pressures contained in the Magnitsky Act to human rights abusers in other countries.’

The Magnitsky Act is now a model for anti-kleptocracy legislation, backed by Washington’s political will to lead the global fight against corruption and impunity. The similarities to December 1977 and enactment of the FCPA are many.

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