By Lucy Komisar
May 15, 2018

Michael McFaul, President Obama’s senior director of Russian affairs at the National Security Council and then ambassador to Russia, gave a neocon tour d‘horizon at the Council on Foreign Relations May 11. [Republicans/Democrats, they are all neocons now.] He was there to promote a new book. I asked him about the Magnitsky hoax. I got expected evasions at the Council, but later found revelations in the book. Here’s the Q & A.

Q: My name‘s Lucy Komisar. I‘m a journalist.

About the Magnitsky Act, which is an irritant now in U.S.-Russia relations, William Browder‘s allegation of the murder of the man he calls his lawyer, Sergei Magnitsky, was the basis of the act, establishing the first targeted Russian sanctions in 2012.

But in 2011, the year before, the Physicians for Human Rights of Cambridge, Mass, did an extensive report based on 44 documents, testimony, photos that Browder gave them, and reported to him that Magnitsky, who was his accountant not his lawyer, died in Russian detention from terrible medical care but not, as Browder continued to claim, that he‘d been beaten to death by Russian riot guards.

What impact has the Magnitsky Act had on U.S.-Russia relations?

And how should the U.S. government, Congress, media, and others deal with the fact that it was based on Browder‘s claims, for which he had no evidence, and which was refuted by the very report he commissioned?

McFaul evaded the question. Nothing about lack of proof Magnitsky was murdered. Or how the US should deal with that fake claim. A smart foreign policy guy evades a difficult question by moving your attention elsewhere.

MCFAUL: Thank you. Yeah, so I wrestled a lot with the Magnitsky Act. And I know”I‘ve known Bill Browder for a long time. I worked at the White House when Sergei Magnitsky was killed. It was a wrongful death. He was held in pretrial detention. And he shouldn‘t have been there. We looked at all those documents as well. And I write about this in detail in the book”so please look at this, because this is new and it would be interesting to see”well, just read the book.

Shouldn’t have been there. Why not? He was detained because of his role organizing Browder’s tax evasion. Detained before verdict and sentence? The French detain suspects in investigations routinely. The U.S. detains suspects who cannot make bail. Different rules for the Russians?

He pointed out that before the Magnitsky Act the U.S. had already put Russians on a sanctions list. “I was the one that ran that decision-making process in the government. And we did that. And we don‘t need the Magnitsky Act to deny people visas to come to the United States of America.”

Most interesting, he pointed out that Browder wanted a more public action. “He said that wasn‘t good enough”we needed to do this publicly.”

McFaul has something there. For the backstory on the Browder/Magnitsky hoax, read a section in his From Cold War to Hot Peace, Houghton Mifflin Harcourt Books.

It turns out the Magnitsky Act – which is now roiling US-Russian relations — was passed to get a trade deal done! McFaul explains that “we helped Russia join the World Trade Organization, ending decades of negotiations. At the time, the completion of this negotia ­tion seemed just as monumental as the New START treaty. But there was one hitch. For our companies to benefit from Russia’s WTO accession, we had to end the application of the Jackson-Vanik amendment to the Trade Act of 1974.”

That legislation denied permanent normalized trade relations to countries that did not allow the free emigration of Jews and had nonmarket economies. He pointed out that, “after the collapse of the Soviet Union, the issue was moot; Jews could emigrate freely, and they did so in record numbers. Logically, Gorbachev, Yeltsin, and Putin asked their American counterparts to get rid of Jackson-Vanik. But repeal required congressional legislation, and leaders in the U.S. Congress did not want to give something for nothing.” Over the years they had even demanded increased chicken exports! And later ending the war in Chechnya and greater democratization.

Does gerrymandering or voter suppression count when you judge democracy? Why don‘t other countries do what the US tells them to do as I say, not as I do!

McFaul wrote, “Once Russia joined the WTO, Jackson-Vanik put the United States in a par ­ticularly awkward position. If we were still applying trade restrictions when Russia joined, we would be in noncompliance with our WTO obligations. Rus ­sia, in turn, could discriminate against our companies.” He said, “No one on the Hill was prepared to do Russia any favors, even if American companies would be the biggest losers of doing nothing. And then our legislative experts discovered a lifeline ” the Magnitsky Act.”

Yikes! Let‘s use a fake human right story that will engender unknown consequences to get a you-can’t-go-wrong-by-attacking-the-Russians Congress to comply with global trade rules!

McFaul writes: “Senator Ben Cardin and some allies had introduced this bill to punish those Russian officials involved in the wrongful death of Russian lawyer Sergei Magnitsky. After be ­ing arrested for trying to defend the property rights of American businessman Bill Browder, Magnitsky had died in captivity.

The Russian government claimed Magnitsky’s wrongful death was an accident; Browder claimed that the Russian government had murdered his friend. Bill reorganized his whole life to avenge the death of Magnitsky, bringing the same burning drive and public relations savvy that had made him one of the most successful foreign investors in Russia to his campaign to make the Russians pay for what they had done to his lawyer.”

OK, Magnitsky was not his lawyer. See Browder‘s testimony on that in this brief video. The State Department had to know that. Magnitsky was an auditor/accountant: see his testimony. “Property rights?” Is keeping the money you stole via tax evasion a property right? Murder? Have you seen the report of the Physicians for Human Rights (Cambridge Mass) based on “evidence” Browder sent them, which doesn‘t say murder, just bad medical care? McFaul falls into repeating what he should know are Browder‘s fabrications. Or he had very bad staff work.

He writes: “While working at the White House, I met with Browder from time to time. We had known each other for decades; in my travels to Moscow I often checked in with him, as he was very well informed about Russian political and economic matters through management of his hedge fund, Hermitage Capital.” Assume Browder didn‘t detail his tax evasion.

“In one of these meetings he discussed his idea for new legislation that would ban the in ­dividuals responsible for Magnitsky’s death from travel to the United States, and freeze their assets in America. He gave me the names of several dozen people he wanted to see on what later became known as the Magnitsky list.”

Then another lie, or maybe just sloppy: McFaul says the Russians “continued to insist that Magnitsky was a criminal and, in a truly grotesque gesture, convicted him after his death.” Reports at the time said that the case against him was dismissed precisely because he had died. Here the Russian decision indicates Magnitsky after death was not charged or convicted of tax evasion. translation of court decision.

After the Russians tried to arrest Browder, then living in London, McFaul began working on a U.S. govern ­ment response. He writes that he learned that the US could put people on a visa-ban list for human rights violations, without enacting new legislation. He had the intelligence community, State Department, and Treasury scru ­tinize Browder‘s list to see if they had enough evidence to make these individuals subject to a visa ban.

Of the sixty or so people on his list, they identified a dozen to ban from travel to the United States. But Browder was upset that the action was not made public. Nor the targets‘ assets frozen.

Now, this is interesting: “Bill and I had a philosophical disagreement. I did not believe that the U.S. government should be able to seize individuals’ private property without due process. They should have the right to defend themselves in a court of law. Bill disagreed. He vowed to push on with his campaign in Congress. I wished him luck.”

The reason of course was this was a weapon in the public relations war against Russian tax authorities.

McFaul appears to support due process, but then why wish Browder luck to promote a law that violates due process? Are we still talking about human rights?

He writes, “One day in the spring of 2011, I received an email from the Office of Manage ­ment and Budget, through the Legislative Referral Memorandum (LRM) pro ­cess, asking for comment on the Magnitsky bill, at the time being introduced as stand-alone legislation by Senator Cardin and other cosponsors. I felt like we had to respond to this draft legislation, and through this OMB mechanism, tell the U.S. Congress that we already had the authority to take action against some of these human rights offenders. A Magnitsky list already existed; they just didn’t know it. I wrote our response, and then got our colleagues at State to sign off. This confidential message was delivered to those staffers on the Hill working on this legislation, but then leaked in a matter of hours.”

“Soon thereaf ­ter, Kathy Lally accurately reported in the Washington Post that the U.S. Puts Russian Officials on Visa Blacklist. A few days later, on July 29, 2011, Sergey Prikhodko, Medvedev’s foreign policy advisor, placed a call in to my boss, Tom Donilon, to complain.”

His boss, Tom Donilon, thought the sanctions were done by an idiot

McFaul: “I went in to see Tom that morning to do a pre-brief before his call with Pri ­khodko. He was upset. Who was the idiot who allowed these Russian officials to be sanctioned? he asked. Looking at my feet, I took responsibility. When Tom asked why he was not consulted on the decision, I responded that I didn’t think it rose to his level. I tried to assuage Tom by predicting that Prikhodko was not going to overreact to such a minor set of sanctions, given all the other issues on our bilateral plate. But I was wrong.

“On the call, Prikhodko, a man of few words with a normally calm disposition, angrily warned of retribution. Tom defended the action, reminding his Russian counterpart that Magnitsky’s death was not only an internal Russian matter, since Americans invested in Browder’s funds. And he also vowed to not let this issue dominate our larger bilateral agenda.” (It‘s called having Browder‘s tail wag the US government dog.)

McFaul writes: “When I later talked to Browder about this breakthrough ” the public ac ­knowledgment of U.S. sanctions against those responsible for Magnitsky’s death ” he still was not satisfied. He wanted more ” more people on the list, asset freezes, and a law. I thought that I had done the right thing, even if it meant upsetting both my boss and the Kremlin. For Browder and other critics of our administration, our actions were not enough.”

No, he wanted a global PR victory for his don’t-let-the-Russians-get-my-back-taxes campaign.

“We then handed Browder, Cardin, and others a giant opportunity: the pend ­ing bill on repealing Jackson-Vanik. It was the perfect vehicle for Bill and his supporters on Capitol Hill to get his Magnitsky Act voted into law. To most members of Congress, granting Russia permanent normal trade relations felt like a concession, even if the real beneficiaries were American companies. Add ­ing the Magnitsky legislation as an amendment or rider to the trade bill made it more palatable, allowing legislators to vote for business and for human rights at the same time.”

Human rights based on violations of due process? Really?

On December 14, 2012, President Obama signed into law the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Account ­ability Act of 2012. Russia banned some Americans — former chief of staff to Vice President Dick Cheney, Dick Addington, or former U.S. Army Major General Geoffrey Miller” and banned adoptions by Americans of Russian children.

McFaul unless he did no research had to know Browder‘s Magnitsky story was fake, and yet he went along with it. Why? Avoiding a conflict in Congress between trade advocates and Russophobes?

Final note: how do the human rights supporters of the Magnitsky Act react to McFaul‘s comment: “I did not believe that the U.S. government should be able to seize individuals’ private property without due process. They should have the right to defend themselves in a court of law.”

Professor McFaul, It’s important that you said that before the Magnitsky Act was passed. Neither the government, the Congress, nor Browder cared. Important that you raise this in your book. You should have said that at the Council. Will you say that as you speak about your book?

Video and Text here. Question is 36 minutes in.