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My Answer to the Thoughtful Post on the Magnitsky Act

Anonymous wrote this as a comment to my recent post on Trump and the original Magnitsky Act and I think it deserves a thorough response:

I don’t think there is any due process burden on statements of condemnation. Saying the Magnitsky Act is an unconstitutional bill of attainder I think is wrong. Firstly, the implicated are foreign nationals, it does not pass guilt nor does it create any sort of mechanism for actually trying or sentencing these individuals. It is the United States Congress formally condemning individuals of suspected crimes. The only punishment it does provide is excluding these individuals from entering the U.S. or using U.S. banks. Sandy, do you think foreign nationals have any kind of meaningful right to enter the country or use banks under the Constitution (why I also think the statements that the visa-waiver restrictions we’re implementing or limitations of immigration from certain nations being unconstitutional are inaccurate).

Do you think we need to charge Kim Jong Un for being a brutal despot in a U.S. federal court in order to continue sanctions against the North Koreans?

I think it’s pretty evident that Putin has a history of illiberal rigging of democracy within his own country. The argument that “we’ve manipulated in other countries” doesn’t seem particularly persuasive to me. I don’t think its unreasonable to say what you do to your own citizens and your own people is a reflection of the type of principles you hold. We don’t – as much as our Left-wing “comrades” might believe – an overriding obligation to people who are not citizens or do not live in this country. But we do have one to Americans. If the government were assassinating Americans or rigging American elections, that would be a problem. And further if people in charge of that rigging called a foreign election candidate “strong” or “trustworthy”, I would rightly be suspicious if I was a citizen of that country of this candidate.

Anonymous says the Magnitsky Act is not a bill of attainder.  It only says you can’t visit the US and use our banks.  And even if it is a Bill of Attainder, this constitutional protection does not (and neither do most other provisions) apply to foreigners.

A bill of attainder was a act of the British Parliament that tried and punished officials for dereliction of duty and other crimes.  Let’s go the the Heritage Guide to the US Constitution (That’s right: Heritage as in the Heritage Foundation) for a more detailed treatment of this clause:

In common law, bills of attainder were legislative acts that, without trial, condemned specifically designated persons or groups to death. Bills of attainder also required the “corruption of blood”; that is, they denied to the condemned’s heirs the right to inherit his estate. Bills of pains and penalties, in contrast, singled out designated persons or groups for punishment less than death, such as banishment or disenfranchisement. Many states had enacted both kinds of statutes after the Revolution.

The United States Supreme Court seems to have had a more expansive view of the Clause (starting in the middle of a paragraph for that first one):

Beginning with Chief Justice John Marshall, however, the Supreme Court has insisted that “a Bill of Attainder may affect the life of an individual, or may confiscate his property, or may do both.” Fletcher v. Peck (1810).

Marshall and his successors saw the Bill of Attainder Clause as an element of the separation of powers. As the decisions of the Court in Marbury v. Madison (1803) and United States v. Klein (1871) made clear, only a court can hold a trial, evaluate the evidence, and determine the merits of the claim or accusation. The Constitution forbade the Congress from “exercis[ing] the power and office of judge.” Cummings v. Missouri (1867). In United States v. Brown (1965), the Court specifically rejected a “narrow historical approach” to the clauses and characterized the Framers’ purpose as to prohibit “legislative punishment, of any form or severity, of specifically designated persons or groups.”

Those cases, although they do not admittedly apply to foreigners, do sound absolute to me in practice.  Congress cannot try a person (except for impeachment or contempt of Congress) and then punish that person.  The Magnitsky Act does exactly that:  First accusing individual Russians of involvement in torture and murder and then human rights violations in general.  That is a serious charge to make.

And there is no trial.  None of the accused Russians were allowed to try to prove their innocence or to present any evidence at all.  No court or jury decided they helped torture or kill Magnitsky – or other human rights violations.  Congress (or actually the President, under Congressional authority) decides they are guilty.

There is punishment:  These persons cannot visit the USA and any property or money they may have can be confiscated.

This cite [Here] is the entire text of the Magnitsky Act.  [Blogger’s note:  The act is Title or portion four of a larger bill]

The act reads at first like an indictment:

SEC. 402. FINDINGS; SENSE OF CONGRESS.

    (a) Findings.--Congress finds the following:
            (1) The United States aspires to a mutually beneficial 
        relationship with the Russian Federation based on respect for 
        human rights and the rule of law, and supports the people of the 
        Russian Federation in their efforts to realize their full 
        economic potential and to advance democracy, human rights, and 
        the rule of law.
            (2) The Russian Federation--
                    (A) is a member of the United Nations, the 
                Organization for Security and Co-operation in Europe, 
                the Council of Europe, and the International Monetary 
                Fund;
                    (B) has ratified the Convention against Torture and 
                Other Cruel, Inhuman or Degrading Treatment or 
                Punishment, the International Covenant on Civil and 
                Political Rights, and the United Nations Convention 
                against Corruption; and
                    (C) is bound by the legal obligations set forth in 
                the European Convention on Human Rights.
            (3) States voluntarily commit themselves to respect 
        obligations and responsibilities through the adoption of 
        international agreements and treaties, which must be observed in 
        good faith in order to maintain the stability of the 
        international order. Human rights are an integral part of 
        international law, and lie at the foundation of the 
        international order. The protection of human rights, therefore, 
        particularly in the case of a country that has incurred 
        obligations to protect human rights under an international 
        agreement to which it is a party, is not left exclusively to the 
        internal affairs of that country.
            (4) Good governance and anti-corruption measures are 
        instrumental in the protection of human rights and in achieving

[[Page 126 STAT. 1503]]

        sustainable economic growth, which benefits both the people of 
        the Russian Federation and the international community through 
        the creation of open and transparent markets.
            (5) Systemic corruption erodes trust and confidence in 
        democratic institutions, the rule of law, and human rights 
        protections. This is the case when public officials are allowed 
        to abuse their authority with impunity for political or 
        financial gains in collusion with private entities.
            (6) The Russian nongovernmental organization INDEM has 
        estimated that bribes by individuals and businesses in the 
        Russian Federation amount to hundreds of billions of dollars a 
        year, an increasing share of the country's gross domestic 
        product.
            (7) Sergei Leonidovich Magnitsky died on November 16, 2009, 
        at the age of 37, in Matrosskaya Tishina Prison in Moscow, 
        Russia, and is survived by a mother, a wife, and 2 sons.
            (8) On July 6, 2011, Russian President Dimitry Medvedev's 
        Human Rights Council announced the results of its independent 
        investigation into the death of Sergei Magnitsky. The Human 
        Rights Council concluded that Sergei Magnitsky's arrest and 
        detention was illegal; he was denied access to justice by the 
        courts and prosecutors of the Russian Federation; he was 
        investigated by the same law enforcement officers whom he had 
        accused of stealing Hermitage Fund companies and illegally 
        obtaining a fraudulent $230,000,000 tax refund; he was denied 
        necessary medical care in custody; he was beaten by 8 guards 
        with rubber batons on the last day of his life; and the 
        ambulance crew that was called to treat him as he was dying was 
        deliberately kept outside of his cell for one hour and 18 
        minutes until he was dead. The report of the Human Rights 
        Council also states the officials falsified their accounts of 
        what happened to Sergei Magnitsky and, 18 months after his 
        death, no officials had been brought to trial for his false 
        arrest or the crime he uncovered. The impunity continued in 
        April 2012, when Russian authorities dropped criminal charges 
        against Larisa Litvinova, the head doctor at the prison where 
        Magnitsky died.
            (9) The systematic abuse of Sergei Magnitsky, including his 
        repressive arrest and torture in custody by officers of the 
        Ministry of the Interior of the Russian Federation that Mr. 
        Magnitsky had implicated in the embezzlement of funds from the 
        Russian Treasury and the misappropriation of 3 companies from 
        his client, Hermitage Capital Management, reflects how deeply 
        the protection of human rights is affected by corruption.
            (10) The politically motivated nature of the persecution of 
        Mr. Magnitsky is demonstrated by--
                    (A) the denial by all state bodies of the Russian 
                Federation of any justice or legal remedies to Mr. 
                Magnitsky during the nearly 12 full months he was kept 
                without trial in detention; and
                    (B) the impunity since his death of state officials 
                he testified against for their involvement in corruption 
                and the carrying out of his repressive persecution.
            (11) The Public Oversight Commission of the City of Moscow 
        for the Control of the Observance of Human Rights in Places of 
        Forced Detention, an organization empowered by

[[Page 126 STAT. 1504]]

        Russian law to independently monitor prison conditions, 
        concluded on December 29, 2009, ``A man who is kept in custody 
        and is being detained is not capable of using all the necessary 
        means to protect either his life or his health. This is a 
        responsibility of a state which holds him captive. Therefore, 
        the case of Sergei Magnitsky can be described as a breach of the 
        right to life. The members of the civic supervisory commission 
        have reached the conclusion that Magnitsky had been experiencing 
        both psychological and physical pressure in custody, and the 
        conditions in some of the wards of Butyrka can be justifiably 
        called torturous. The people responsible for this must be 
        punished.''.
            (12) Sergei Magnitsky's experience, while particularly 
        illustrative of the negative effects of official corruption on 
        the rights of an individual citizen, appears to be emblematic of 
        a broader pattern of disregard for the numerous domestic and 
        international human rights commitments of the Russian Federation 
        and impunity for those who violate basic human rights and 
        freedoms.
            (13) The second trial, verdict, and sentence against former 
        Yukos executives Mikhail Khodorkovsky and Platon Lebedev evoke 
        serious concerns about the right to a fair trial and the 
        independence of the judiciary in the Russian Federation. The 
        lack of credible charges, intimidation of witnesses, violations 
        of due process and procedural norms, falsification or 
        withholding of documents, denial of attorney-client privilege, 
        and illegal detention in the Yukos case are highly troubling. 
        The Council of Europe, Freedom House, and Amnesty International, 
        among others, have concluded that they were charged and 
        imprisoned in a process that did not follow the rule of law and 
        was politically influenced. Furthermore, senior officials of the 
        Government of the Russian Federation, including First Deputy 
        Prime Minister Igor Shuvalov, have acknowledged that the arrest 
        and imprisonment of Khodorkovsky were politically motivated.
            (14) According to Freedom House's 2011 report entitled ``The 
        Perpetual Battle: Corruption in the Former Soviet Union and the 
        New EU Members'', ``[t]he highly publicized cases of Sergei 
        Magnitsky, a 37-year-old lawyer who died in pretrial detention 
        in November 2009 after exposing a multimillion-dollar fraud 
        against the Russian taxpayer, and Mikhail Khodorkovsky, the 
        jailed business magnate and regime critic who was sentenced at 
        the end of 2010 to remain in prison through 2017, put an 
        international spotlight on the Russian state's contempt for the 
        rule of law * * *. By silencing influential and accomplished 
        figures such as Khodorkovsky and Magnitsky, the Russian 
        authorities have made it abundantly clear that anyone in Russia 
        can be silenced.''.
            (15) The tragic and unresolved murders of Nustap 
        Abdurakhmanov, Maksharip Aushev, Natalya Estemirova, Akhmed 
        Hadjimagomedov, Umar Israilov, Paul Klebnikov, Anna 
        Politkovskaya, Saihadji Saihadjiev, and Magomed Y. Yevloyev, the 
        death in custody of Vera Trifonova, the disappearances of 
        Mokhmadsalakh Masaev and Said-Saleh Ibragimov, the torture of 
        Ali Israilov and Islam Umarpashaev, the near-fatal beatings of 
        Mikhail Beketov, Oleg Kashin, Arkadiy Lander, and Mikhail 
        Vinyukov, and the harsh and ongoing

[[Page 126 STAT. 1505]]

        imprisonment of Mikhail Khodorkovsky, Alexei Kozlov, Platon 
        Lebedev, and Fyodor Mikheev further illustrate the grave danger 
        of exposing the wrongdoing of officials of the Government of the 
        Russian Federation, including Chechen leader Ramzan Kadyrov, or 
        of seeking to obtain, exercise, defend, or promote 
        internationally recognized human rights and freedoms.

    (b) Sense of Congress.--It is the sense of Congress that the United 
States should continue to strongly support, and provide assistance to, 
the efforts of the Russian people to establish a vibrant democratic 
political system that respects individual liberties and human rights, 
including by enhancing the provision of objective information through 
all relevant media, such as Radio Liberty and the internet. The Russian 
Government's suppression of dissent and political opposition, the 
limitations it has imposed on civil society and independent media, and 
the deterioration of economic and political freedom inside Russia are of 
profound concern to the United States Government and to the American 
people.


Then this act authorizes the President to submit a last of names of all those involved in the alleged torture and murder of Sergei Magnitsky.  Those named can only appeal to him or the Secretary of State to be removed from the list.  And they are punished with more than just “cannot visit the US” – they can have US-held property seized and frozen:

(a) <<NOTE: President.>>  Freezing of Assets.--
            (1) In general.--The President shall exercise all powers 
        granted by the International Emergency Economic Powers Act (50 
        U.S.C. 1701 et seq.) (except that the requirements of section 
        202 of such Act (50 U.S.C. 1701) shall not apply) to the extent 
        necessary to freeze and prohibit all transactions in all 
        property and interests in property of a person who is on the 
        list required by section 404(a) of this Act 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.
            (2) <<NOTE: Determination.>>  Exception.--Paragraph (1) 
        shall not apply to persons included on the classified annex 
        under section 404(c)(2) if the President determines that such an 
        exception is vital for the national security interests of the 
        United States.

This is trial and punishment authorized by Congress and implemented by the Executive Branch.  I contend it is immoral, violates due process, is unconstitutional and may violate international law.

And US banks MUST comply:

(2) 
        Requirements <<NOTE: Deadline. Regulations. Certification.>>  
        for financial institutions.--Not later than 120 days after the 
        date of the enactment of this Act, the Secretary of the Treasury 
        shall prescribe or amend regulations as needed to require each 
        financial institution that is a United States person and has 
        within its possession or control assets that are property or 
        interests in property of a person who is on the list required by 
        section 404(a) if such property and interests in property are in 
        the United States to certify to the Secretary that, to the best 
        of the knowledge of the financial institution, the financial 
        institution has frozen all

[[Page 126 STAT. 1509]]

        assets within the possession or control of the financial 
        institution that are required to be frozen pursuant to 
        subsection (a).

The definition of US bank is broad:

(4) 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.

So, Anonymous and my readers, is this accusation, conviction and punishment without trial or evidence taken?

Many Americans I am afraid adhere to the Lindsey Graham and Jethro Gibbs school of jurisprudence that contends that foreigners have few if any rights under US law.  But that is not true.  Foreigners have plenty of rights under US law.

Placing economic sanctions against an entire nation like North Korea is not the same as targeted sanctions against individuals and does not apply to this analysis.

I did not fully understand the final paragraph and I think Anonymous was saying be careful of a presidential candidate that a foreign leader praises with intent to influence an election.  He’s right.  But we do judge the efficacy of foreign elections and leaders regularly and publicly.  Some things ought to be left private for negotiations and discussions.  And we ought not condemn others without trial for human rights violations; if we intend to judge others in other nations, let’s make sure our own house is in order.

Some might say, but Sandy, targeted economic sanctions are more moral than blanket ones.  I agree.  BUT it has to be done right.  I would target as a sanction items that are directly relevant to the bad behavior (computer software to Iran for example) but not try to destroy economies and systems or encourage rebellion.  The United States is too eager to enact economic sanctions against a whole host of nations.  Now all lawful sanctions must be obeyed as the law of the land.  But we ought to curb most if not all of the sanction regimes we have.

The Magnitsky Act in particular ought to be repealed and replaced with an apology to Russia.  Our President is good at the apologizing game.  He would be perfect for the job.

 

 

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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