I'm worried about the Magnitsky bill.

While the bill passed in the House and seems slated to pass in the Senate this week or next — when it comes to Russia, I've seen many a slip twixt cup and lip occur with things related to human rights over the years, and it comes down to two main problems: a) Russia behaves so outrageously that people fear they will make it worse if they contest it and they think it's more pragmatic to reach some quiet condominium; b) therefore people disagree about what the best way is to address or contain Russia.

You would think history had enough examples of when calling Russia's gruff bluff worked, and when challenging its malicious behaviour at home and abroad and giving some pushback helped curb it. Example: the very Jackson Vanik Amendment of 1974 now about to be retired, the mere discussion of which back in the day in fact helped get some emigration flowing from the Soviet Union — and which ultimately, despite a temporary lowering of numbers (often fixated upon by critics without progressing to the next chapter) led to hundreds of thousands of Soviet Jews and other religious believers and dissenters being permitted to leave the USSR.

Yet there are still arguments against Magnitsky in significant quarters — and important voices that are abstaining from comment about Magnitsky — and they need to be addressed.

"The US is a Human Rights Abuser So Why Single Out Russia?"

We all get it about why Jackson Vanik must be graduated and PNTR established for Russia, yet there's a psychology in Congress — and that means in the public because these are elected representatives — that Russia still has some significant and severe human rights problems and that Russia cannot be handed the moral victory of getting removal of JV alone. I do believe that is the "sense of Congress" as passed in the House version of the bill — but we still have to get through the Senate — and past "the Internets" which can decide policy these days.

Accordingly…Before anyone cranks up their moral equivalency magnitofon, let me link you to the proceedings of the UN Committee Against Torture, the formal UN treaty body which is responsible for reviewing Russia's compliance with the Convention Against Torture, which condemned Russia's practices last month, and even — in a significant departure from usual practice with such committee sessions — mentioned Magnitsky's case twice as emblematic of what is wrong in Russia.

Whatever America's bad behaviour at home or abroad  — whether mistreatment of Bradley Manning in prolonged detention or civilians killed by drones — — we have plenty of remedies to check them. Meanwhile, there is the chilling fact of the Russian difference: Journalists are assassinated. Human rights defenders are murdered or hounded and intimidated. Lawyers and businessmen and other professionals are murdered or die in pretrial detention as whistleblowers. More than 400 people just…disappear lately…in the Caucasus and the prosecutors frankly admit they don't know where they are. This doesn't happen in the West. This does happen in Russia. And that's why we need to care, and do something special . It's okay to single out bad behaviour when it's worse; application of universality means having to admit when the application of that universality reveals where there are greater or lesser crimes.

"We Can't Piss the Russians Off" vs. "We Must Do Something About the Russians"

To give you an idea of how this psychology — the indication of a reality — operates, I'll note the question I made to Sen. John McCain last week at the Foreign Policy Institute's conference at the Newseum. The topic was Syria and "what to do," and Bernard-Henry Levy, the French intellectual who was a featured speaker, had said, essentially, during the discussion, "Why are we asking the butcher of Grozny how to run our Syria policy"?

So I asked that since so much of the debate focused on "what can America do" — although America is very exhausted from three wars already in Islamic countries and still staggering from the recession at home — whether among those "things to do" was having Washington put more pressure on Washington? Shouldn't Russia have more ownership of the Syrian atrocities, as the Kremlin props up Assad and provides $1 billion in arms to the Syrian regime? Russia vetoed any attempt to act on Syria through the UN Security Council. Or are we too beholden to Moscow now, because 60% of our military cargo in — and importantly, out of — Afghanistan passes now through Russia?

Sen. McCain gave a good answer: he said that the Russian veto never prevented us from acting on Kosovo. Indeed. Then he began to talk about how necessary it was to graduate Jackson Vanik, but tie it to the Magnitsky Act — and he explained how it would combat impunity for the human rights abuses. He didn't directly answer my question about the NDN, but that was probably too complex to get into — but the operative point is this: when I raised Russia's very bad behaviour in the world; when I raised the real culprit with Syria; when I raised our helpless dependency on Russia via the NDN, Sen. McCain's answer was: Magnitsky. Magnitsky doesn't fix all those big problems I outlined, but it's the moral response to the problem posed to the immorality of Russia's behaviour — and it's as good as it gets.

Will we get even that?

A Murder Related to Magnitsky In England?

I began to seriously worry this week when I saw that Alexander Perepilichnyy, a Russian businessman linked as a witness to the corruption scandals related to Magnitsky's case was found dead near his home in the UK. While police wouldn't immediately say they thought the death was suspicious or related to these cases, Russia-watchers had their heart in their mouths — here's a 44-year-old man, not near the Soviet life expectancy, if you will, in good health, out jogging, and ready to cooperate with Swiss prosecutors in a probe around the notorious Klyuev case — and he turns up dead. John Le Carre, call your office.

We're not quite at the level of polonium-persuasiveness yet on this case, but we may be soon. Polonium-persuasion is what I call Steven Shanfeld's wonderful theory expounded on the question troubling Johnson's list years ago about "why radioactive murder, isn't that overkill"? Answer: because then they'll know unmistakeably that it's the Kremlin, and not anybody else. As the EU Observer aptly noted, the case instilled fear. Will it instill enough fear that the far-away US Senate won't vote for it? Oh, I'd like to think not, but there's that psychological undertow that occurs: the Russians are mad; they're so mad, that now they're ready to break the gentlemen's agreement that held in the Cold War and post Cold War periods of over 50 years, well, at least after Trotsky got the axe: the KGB doesn't kill people on foreign soil. They'll do all kinds of stuff, they'll play dirty tricks, they'll cause havoc, but they won't assassinate people. OK, well, there was that umbrella, but you know what I mean. Expulsions, exchanges — not exterminations.

Post-humously Guilty

To be sure, Klyuev had his day in court — he travelled expressly to the OSCE Parliamentary Assembly to explain why he thought Magnitsky's champion and the target of the heist, William Browder of Hermitage Capital, was in fact himself to blame and "benefited" somehow. This is Soviet stinkin' thinkin' of course: Browder has only had to shed funds travelling around to dull parliamentary and UN and OSCE committees for years trying to get people to pay attention to this case and act on it; he doesn't get his money back; he is barred from Russia and gets no business advantage — indeed, he would have been better off, like some other American and European businessmen who have been rattled by the Russian organs and accommodated, if he had just pretended that Magnitsky had slipped in the shower or something. Magnitsky is only one aspect of a tangled story of other corrupt dealings and murders as Browder outlines in a short video, described here by Michael Weiss.

Relentlessly, the Russians are now — for the first time in their history — trying a man posthumously to "make a point". It's truly bizarre, and what torture for Magnitsky's family! But the intent is clear: right at the time that the Magnitsky bill is on the floor of the US Congress, the Russians are making one big full-court press to discredit him and make it seem like he's a criminal, to sow that bit of doubt in people's mind. So in other words, if they aren't done in by the undertow of fear and uncertainty around the death of yet another whistleblower, then the taint that might be spread to Magnitsky as a previous whistleblower by somehow being found guilty will clinch that impression.

But surely the US Senate, far away and removed from the pressures of KGB-style tactics of murder and active measures at home and abroad, will prove inured to the agents of influence? And this is only a hypothesis, mind you. Perepilichnyy could have had ventricle issues. Maybe Klyuev was maligned.

Obama Opposes Magnitsky

The psychological work is done, however — and this was achieved even before these incidents. Because we know that Obama does not want Magnitsky to pass and it's for two reasons. One, it's part of Obama's overal worldview — an attitude toward Russia on the left among "progressives" that still sees the Kremlin as representing some "social change" that is a good thing, even if a little harshly implemented. But more personally, I think it's about the personal dynamics that Obama established between Medvedev and Putin, in his quest for the "re-set" and to re-establish foreign relations on a new footing. (Romney called this sort of thing "the apology tour," and I think there's something to it — beating the American breast in a mea culpa for responding to the world's wrongs not always directly of its making, and waiting for the response sure to come from some of the world's autocrats at such frank self-assessment…and then it never comes…).

Obama promised the Tandem that he would get rid of Jackson Vanik. Get rid of. Not keep on the books. Not tie to other legislation that would ding the Kremlin on its human rights abuses, but get rid of. So he feels a loss of face if he doesn't "make a clean break".

So part of the task here is to get Obama over this machismo moment where his manhood is threatened over Magnitsky and to reassure him that his word is still as good as his bond. It has to be explained to him that he isn't cowardly or dishonest if he can't deliver "the pure removal of Jackson-Vanik" as he promised; rather, the Russians are dishonest for doing a hundred bad things between 2009 when he said that, and today, whether on nukes or Syria or Iran or USAID. And he can always say, with a Holbrookian glint in his eye, that his hands are tied to some extent because of the hawks in Congress. There you have it. Every country has its hawks. But you and I both know as men of the world how we'll do it…

Even if Obama doesn't want a Holbrooke moment, he can concede that a country whose Joint Chief of Staff has threatened to launch missiles at us in Europe if we deploy planned anti-missile installations isn't a country that you should keep cringing and crouching around. Get out of crouch mode. They can handle it.

So there's that. But then there's the faithful surrounding Obama and propping up his aversion to Magnitsky — and possibly past the sell-by point, because we don't know that this consumes Obama THAT much; after all, he seems frankly more oriented toward the Middle East and China than Eurasia.

Others Who Oppose Magnitsky

There are others who oppose Magnitsky, for bad and good reasons. There are people like Joshua Foust of American Security Project who are conspicuous by their absence on Magnitsky due to a general trend in avoiding confrontation with the Kremlin; there are people like Ken Roth and Tom Malinowski at Human Rights Watch who never stress Magnitsky even if they've checked the box on it; there are, of course, business people who fear consequences (although the Russians didn't send GM's check back just because Magnitsky is being debated — that's a promise of $1 billion even BEFORE JV is retired). Then there are various Jewish organizations who also want to be seen as having their word as good as their bond as well: they said they wouldn't move the goalposts; the Soviets did their part on the emigration, and they have to make good on the removal of JV.

Understood, but the goal posts aren't going to be moved. JV is going. A different thing has to happen, however, which is putting markers down on human rights. Putting markers down isn't moving goal posts; you can have the touchdown, but you can still have the boundaries and the "offsides". That's all it is.

The Awkward Internationalization of Magnitsky

But still, we have to deal with the mess-up caused by some at State to try to find a square for the circle of the Magnitsky psychology. I suspect that this square was invented by Harold Koh, the State Department's legal advisor who was famous for getting the ICC signed under Clinton, and Michael Posner, a human rights lawyer who has a lifetime of exemplary human rights work around the world particularly for lawyers — like Magnitsky and others who represent defense of the rule of law in the Magnitsky bill.

That square involved the "internationalization" of the seemingly Russia-specific Magnitsky Act and language that made it seem to apply to impunity in any state. The House managed to tool and die their version of this bill to their meticulous satisfaction, even without internationalization that might have made some Republicans skittish because it sounded too UN-y or something. It would be great if the Senate would not "go there" and acquire any of the skittishness that didn't happen in the House, but the fact is, there are some who don't like the internationalization.

And in the bizarre twists of our time, what apparently began as a stop-gap by liberals like Posner within State to try to assuage Obama's concerns about seeming to ding the Russians, and which did not work as a psych-out on Obama in fact, is now being put forth by conservative Sen. Kyl as a means of quelling Republican fears of dinging the Russians.

And here the odd thing, from what I gather, is that even though the two human rights champions of this Administration, who have been battered by Barrack on other questions, whether Bradly Manning or Bahrain, did cook up a pretty good way to package Magnitsky with universality — so that it seemed to ding the Russians less and not leave Obama with the problem of his word as a gentleman noted above — Obama wasn't impressed, and now it's the very argument in the hands of Sen. Kyl that might make Kerry invoke objection to it. Go know.

But the Russians aren't going to find ANY version of this palatable as the whole thing sucks for them. Authoritarianism is really that brittle, that even a very narrow-focused sanction on just a short list of people — not the entire country, and not its leadership, like the ICC indictment against Bashir or the sanctions against Belarusian leaders, for example will get them mad — and then inevitably richochet on some liberals as somehow seeming "unprogressive". Pity, that.

Real progressives should be getting over Alcove 1 and Alcove 2 and treating the Kremlin at least as critically as they treat America's own past and, oh, Israel or something. The human rights crimes are serious (Chechnya); the two biggest trends noted by the UN CAT was that a) despite reforms there were just too many cases of torture reported b) these cases never got independently probed and prosecuted properly.

But How Bad is Magnitsky, Really, for the Russians?

As Owen Matthews said at the Daily Beast,

The Magnitsky Act scares powerful Russians. It threatens “to become an ongoing nightmare for the Kremlin kleptocrats who have operated with complete impunity for years at home and abroad,” says former Duma deputy Vladimir Ryzhkov. Corruption is so pervasive in Russia that almost any official could be targeted. “We oppose foreign interference in Russia’s domestic affairs,” says Ryzhkov. “But we also oppose Russia’s corrupt officials’ becoming an accepted part of the world’s political and financial elite.”

God bless Ryzhkov, but I actually don't think the inability to get to Viriginia to buy some ranch land or go shopping at Tiffany's in the Christmas season is going to be THAT much of a "nightmare" for the Magnitsky Listers. I never understood the need to keep the Magnitsky List secret; who on the Magnitsky List does Obama need to talk to?! The Magnitsky List in fact is not open-ended; in the very severe watering-down process that this bill went through in the House, two things happened with make it almost toothless: a) it was finite, i.e. it could not admit new cases of new murderers b) it was made secret, i.e. classified, under pressure from Obama.

If for some reason Sen. Kerry — and he is instrumental to this — cannot see his way clear to letting this now weakened bill go in its present form, despite the possible implications of "internationalization" — which Obama and he should really be for, in the abstract, given their "progressive" politics — then the bill risks being lost, as it will have to go back to the House, and be tinkered with and man-handled again and get more weird in the process.

Let's not let that happen. There is no need to have it happen. There are some awful things that could happen along the way here that I won't expound on, under the theory that you shouldn't tell the children to stick peas up their nose… But there's every indication of just how much this means to Moscow, and how much they are prepared to "interfere in internal affairs".

"Putin Sees Obama and His Team as Weaklings"

That the Russians clumsily see Kerry as key to this was unwittingly made manifest in a paid-for supplement Russia NOW to the Washington Post this weekendfrom Russian business daily Kommersant's Konstantin von Eggert, in an article titled "The Third Angle: Post-Election, Reset Replaced By Pragmatic Visions"

This comment is so blunt — it's the sort of thing *I* would write in my blog — that I almost wonder if this is in fact intended as yet another element of what seem like a behind-the-scenes Bolshevik confusion tactic — to sow incomprehension in the ranks. Do senators read Washpo supplements about Russia? Do they read the British tabs and do they know what "supergrass" means? (It means, apparently, "whistleblower"). What do they read?

Here's the thing: the internationalization of the now-weakened Magnitsky bill is, well, weak and merely a symbolic nod. You could say that internationalization is already contained in the
House version because it invokes the UN's Convention Against Torture and
Russia's membership in the UN. But most importantly, the House version doesn't have lists of names for other countries. To make it apply to other countries, somebody would have to get those lists of names made and approved. Possibly other enabling legislation would be needed. No one is really going to be taking Magnitsky Plus tomorrow and apply it to, oh, Bahrain or something. They won't be able to. And Kerry must know that. But he and others invoke the edge-cased hypotheticals of the "international" quotient of the Magnitsky Bill to help sink it. Because that's easier than saying "We don't want to make the Russians mad."

No one should let them get away with that.

And that's why everyone else on this who is for the bill on both sides of the aisle have to persuade Sen. Kerry — and Obama — that they cannot operate foreign policy with that "Russians-mad factor" as some kind of viable ingredient. To quote BHL again: since when does the butcher of Grozny set Syria policy for the West?

To the extent that the Russian government is behind things like murders abroad and at home — and it may be behind them in a range of ways from malign attention to benign neglect — then a pushback is in order. Even if no one wants to grapple with the implications of the Russians being behind bad things that are hard to get to the bottom of, there are the facts of known cases like Magnitsky's himself, and the need to curb impunity. That is in fact good for business; nobody likes a business climate when your tax professional can wind up dead for helping you.

And the Magnitsky list is a separate component of the US-Russian relationship that need not dominate it. I personally think that, as one Russian dissenter put it, the Magnitsky List is already ruling the country, literally or figuratively, and it is emblematic of the posture to take to everything Russian. Yet for many others, whether students or businessmen or emigres returning to see their families or people with a whole host of reasons to relate to Russia on other levels, Magnitsky is a compartment that can stay in a compartment. The Kremlin need not lose its manhood over it, nor should Obama.

That's putting it pretty starkly, but in the climate we're in, it has to be put just that starkly.

Susan Rice vs. John Kerry

I've been shocked to see the ENORMOUS lengths to which the opp researchers and haters and forums-dwellers have gone after Susan Rice, Obama's prime candidate for Secretary of State. I was amazed at the level of depth brought to the task of ferreting out everything about her flawed Africa policies, especially on Rwanda during the genocide which occurred on the Clinton Administration's watch. And not only is she described as too harsh on the Russians (although rightly so, given the gravity of the topic — 40,000 people killed in Syria!), or of course messing things up on Benghazi; today Colum Lynch tweeted that there was "a Susan Rice back channel to Iran" (he linked to an article by Lauren Rozen that in fact described three back channels, of which she was one; back channels are normal, but in this climate, it's as if Rice is being slapped for dealing with the centrifuge-spinners.)

As I tweeted today, I feel as if the next article about Rice will complain that even at the age of 48, she hasn't reached menopause…or something…and therefore isn't trustworthy. It's been awful to watch, in so many ways.

And I get the feeling that the guys at the blogging console want John Kerry instead for all their own "progressive" reasons. And yet…and yet…we're told really, Kerry wouldn't leave his place in the Senate because that would free up the seat for Scott Brown to grab. Baloney, says I; "progressive" Elizabeth Warren raised the most money in history for a senate campaign, and the same Soros soft-money for Twitter will be there again to challenge Brown. I would not at all assume that it's a given.

Maybe everything could work out; Susan Rice could go to serve as Secretary of State; Kerry could go to the DoD despite the ire of military people — who have been horribly chastened now after the scandal of Petraeus in the CIA — and maybe they could let Magnitsky pass without fearfully hypothesizing how the Russians might react.

But for that to happen, senators will have to remain firm:

o Americans set American foreign policy, not Russians; it is decided on the basis of our values for universal human rights, and not whether it makes governments like Russia who might be implicated in human rights crimes "mad"

o Curbing impunity for severe human rights crimes abroad is consistent with our promotion of universal values, and not a dodge of our own responsibilities to universality.

o Human rights is only one part of a relationship, but shirking it ostensibly to help business does a disservice to the rule of law needed to really do business properly.

o The gift of PNTR to the Russians cannot be given in a vaccum because too many wrongs from Magnitsky to Syria have occurred during Obama I, and some checks and balances have to be put into place

o The Russians are not going to return the check sent to them as investment as Magnitsky was being debated even if it passes. Watch the Russians compartmentalize Magnitsky into the relationship as the Soviets had to compartmentalize Jackson-Vanik in their day. It can happen and it need not bleed into all aspects of the relationship — unless, of course, the Russians want to keep letting us know in every way possible that "the Magnitsky List is running the country". Well?

o We are not saving the Russians for other things like Iran and Syria by not pissing them off over domestic human rights issues. They are beyond saving. They are not saved. They are not helpful. It is over. We need a new posture. End of story.

Pass Magnitsky!