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Beware the Son of Magnitsky: Global Meddling at a Whim of Congress or the President! It MUST BE Stopped!

I just posted on the original Magnitsky Act, which was a gross meddling in the internal affairs of Russia and which named names and convicted those as human rights abusers.  It violates in my view the clear provision of the US Constitution that states as follows (Article I, Section 9):

No Bill of Attainder or ex post facto Law shall be passed.

Congress cannot name names and then punish those alleged offenders or delegate that unconstitutional power to any President.  (I am well aware that some lower federal court precedent is against me on this but this question has not been clearly adjudicated by any US court!)

BUT, now we have the Son of Magnitsky:  The Global Magnitsky Human Rights Accountability Act. (This bill like many others introduced or passed such as the Affordable Care Act or the No Child Left Behind Act or the USA Patriot Act, is another example of another of Sandy’s Political Laws:  Bills with fancy names usually lie in the name or it is a propaganda cover for something bad – in this case both!

This is bad policy:  Who made US the arbiter of human rights accountability?  We are not just the policeman of the world, we’re now it’s judge and jury and will execute the sentence too!  It’s monstrous.

Here is the text of this monstrous act (passed by the Senate by unanimous consent) and below are a few highlights:

(1) FOREIGN PERSON.—The term “foreign person” means a person that is not a United States person.

(2) PERSON.—The term “person” means an individual or entity.

(3) UNITED STATES PERSON.—The term “United States person” means—

(A) a United States citizen or an alien lawfully admitted for permanent residence to the United States; or

(B) an entity organized under the laws of the United States or of any jurisdiction within the United States, including a foreign branch of such an entity.

***

(a) In general.—The President may impose the sanctions described in subsection (b) with respect to any foreign person the President determines, based on credible evidence—

(1) is responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals in any foreign country who seek—

(A) to expose illegal activity carried out by government officials; or

(B) to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections;

(2) acted as an agent of or on behalf of a foreign person in a matter relating to an activity described in paragraph (1);

(3) is a government official, or a senior associate of such an official, that is responsible for, or complicit in, ordering, controlling, or otherwise directing, acts of significant corruption, including the expropriation of private or public assets for personal gain, corruption related to government contracts or the extraction of natural resources, bribery, or the facilitation or transfer of the proceeds of corruption to foreign jurisdictions; or

(4) has materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of, an activity described in paragraph (3).

***

(1) INADMISSIBILITY TO UNITED STATES.—In the case of a foreign person who is an individual—

(A) ineligibility to receive a visa to enter the United States or to be admitted to the United States; or

(B) if the individual has been issued a visa or other documentation, revocation, in accordance with section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)), of the visa or other documentation.

(2) BLOCKING OF PROPERTY.—

(A) IN GENERAL.—The blocking, in accordance with the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), of all transactions in all property and interests in property of a foreign person if such property and interests in property are in the United States, come within the United States, or are or come within the possession or control of a United States person.

***

(c) Consideration of certain information in imposing sanctions.—In determining whether to impose sanctions under subsection (a), the President shall consider—

(1) information provided by the chairperson and ranking member of each of the appropriate congressional committees; and

(2) credible information obtained by other countries and nongovernmental organizations that monitor violations of human rights.

(d) Requests by chairperson and ranking member of appropriate congressional committees.—Not later than 120 days after receiving a written request from the chairperson and ranking member of one of the appropriate congressional committees with respect to whether a foreign person has engaged in an activity described in subsection (a), the President shall—

(1) determine if that person has engaged in such an activity; and

(2) submit a report to the chairperson and ranking member of that committee with respect to that determination that includes—

(A) a statement of whether or not the President imposed or intends to impose sanctions with respect to the person; and

(B) if the President imposed or intends to impose sanctions, a description of those sanctions.

***

(f) Enforcement of blocking of property.—A person that violates, attempts to violate, conspires to violate, or causes a violation of subsection (b)(2) or any regulation, license, or order issued to carry out subsection (b)(2) shall be subject to the penalties set forth in subsections (b) and (c) of section 206 of the International Emergency Economic Powers Act (50 U.S.C. 1705) to the same extent as a person that commits an unlawful act described in subsection (a) of that section.

***

(i) Identification of sanctionable foreign persons.—The Assistant Secretary of State for Democracy, Human Rights, and Labor, in consultation with the Assistant Secretary of State for Consular Affairs and other bureaus of the Department of State, as appropriate, is authorized to submit to the Secretary of State, for review and consideration, the names of foreign persons who may meet the criteria described in subsection (a).

***

(j) Appropriate congressional committees defined.—In this section, the term “appropriate congressional committees” means—

(1) the Committee on Banking, Housing, and Urban Affairs and the Committee on Foreign Relations of the Senate; and

(2) the Committee on Financial Services and the Committee on Foreign Affairs of the House of Representatives.

I am not sure where to start, there are so many things wrong with this law.  Let’s start with:

  • “[C]redible evidence” – who decides?  The President.  There is no criteria as to what is credible and no procedure to go to court to protest these personal sanctions.
  • The bad behaviors sound pretty severe at first BUT closer examination it could cover a broad brush:  “other gross violations of internationally recognized human rights committed against individuals in any foreign country…[against among other things, those who seek to] obtain, exercise, defend, or promote internationally recognized human rights and freedoms,…”  Who decides that?  The President, again.  (Subject to the provisions that authorize powerful politicians – chairpersons and ranking members of key committees – to recommend names to the President!)
  • The sanctions are the offenders cannot come into the US and any property they have in the US is “blocked” – seized perhaps and taken from them – without a trial!  Note that if the property comes into the hands of any US citizen or legal resident, it comes under this law.  Or a US bank.  Even abroad.  More paperwork at the least.  And even the foreign subsidiary of such a US bank.  It must be turned in by that person or entity to the Federal Government.  Or else…
  • It would be a new Federal crime to attempt to stop the or hinder the blocking of assets and a willful violation is a FELONY punishable by up to 20 years in prison!  That is not just a crime a foreigner can commit – only a foreigner can be sanctioned – but an American citizen can be convicted of helping the bad guy keep his or her (or its) property too!

This law will “legalize” the meddling in other nations’ internal matters that has been conducted by both parties:  Serbia was attacked without cause in 1999 by a Democrat President and numerous meddling (Iraq is one example) by the Republican (President Bush 41) President and then more meddling (Syria and Libya etc.) by the present Democrat in office now.  The parties are Tweedledee and Tweedledum on this question.

There will be blowback – maybe other nations will do the same to us – or try to.  The Russians responded to Magnitsky by blocking US adoptions of Russian children – even stopping pending legal actions!  (Putin was compared to Herod here in the US because it happened at Christmas 2012 BUT few blamed Congress for their initial meddling that started it!)

This article at the Hill states the law in summary and states why some think this is a better method than blanket sanctions:

In a recent Forbes article, Doug Bandow commented that, “Sanctions have become a tool of choice for Washington to coerce governments short of war. Yet severing commercial relations rarely has promoted America’s ends. Nothing obvious has been achieved in Sudan, where the U.S. stands alone.”

Bandow, a senior fellow at the Cato Institute and at the Institute on Religion and Public Policy, rightly argues that blanket sanctions imposed on states do not achieve the ends intended. Instead, sanctions — particularly those imposed for human rights purposes — only serve to harm the general population of the country while the leadership remains both unchanged and unaffected.

Bandow is right of course as far as it goes.  But this law is worse, much worse.  It is unconstitutional and bad policy.  John Quincy Adams warned us against seeking monsters to slay abroad.  The American people must reject this law immediately by advising their House member to say NO.

Here is the general list of members of the House of Representatives.  I intend to advise my representative Dr. Dave Brat tonight when I see him about this foolish, unconstitutional and dangerous bill.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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