Making of Magnitsky List a Murky Affair

Less clear is who will end up on this blacklist—and how.

The Magnitsky bill passed Friday by the US House of Representatives requires the White House to compile a list of Russian officials who, "based on credible information,” have been linked to "gross violations of human rights.”

These officials could then be denied US visas and have their US assets frozen.

But the bill, which the Kremlin calls disrespectful of Russia’s sovereignty, does not specify what constitutes "credible” information, giving Washington significant leeway in choosing which officials to target.

"The power assigned to the president is an incredibly broad mandate to determine who should be put on this list,” said William Pomeranz, an international law expert and acting director of the Kennan Institute for Advanced Russian Studies at the Washington-based Woodrow Wilson Center.

Spokesmen for the White House National Security Council, the American Embassy in Moscow, and US lawmakers who sponsored the legislation declined to comment this week on the process by which Russian officials’ might be selected for inclusion on the Magnitsky list.

The legislation, which the House passed as part of a law normalizing US-Russian trade relations, is slated to be voted on in the US Senate. The Senate version of the bill, as it pertains to Russia, differs slightly from the one the House passed.

While the House bill tasks the US president with identifying Russian officials targeted for sanctions, the Senate bill gives this responsibility to the US State Department and the Treasury Department. It also would extend to alleged human rights abuses all over the world.

In any case, the State Department will likely be the key player in determining which Russian officials to include in the Magnitsky list, former State Department officials told RIA Novosti.

But US diplomats on the ground in Russia don’t have the resources to thoroughly vet every single allegation of rights abuses committed by Russian officials, noted Steven Pifer, a former US ambassador to Ukraine under President Bill Clinton.

"It’s not like the embassy in Moscow has an army of private detectives to go out and track this stuff down,” Pifer said.

The House bill states that in creating the Magnitsky list, the White House should consider "credible data” obtained from foreign governments as well as nongovernmental organizations (NGOs) inside Russia "that monitor the human rights abuses of the government of the Russian Federation.”

The Kremlin has bristled at the financing that Russian NGOs receive from the United States and other Western governments, and in recent years the Russian government has tightened state control over these organizations, many of which are openly critical of the country’s leadership.

Russian NGOs making recommendations to the State Department to blacklist a Russian official could find themselves in hot water with their own government, said Mark Galeotti, an expert on Russian law enforcement and transnational organized crime at New York University.

Such recommendations could even put these NGOs at risk of facing sedition charges under a recently enacted law broadening the legal definition of treason in Russia, Galeotti said.

"It would be a brave NGO that actually suggested which government officials should have their assets frozen,” Galeotti said.

If the Magnitsky Act becomes law, the inaugural list will almost certainly include several officials accused of involvement in the death of the man after whom the legislation is named: whistleblowing Russian tax lawyer Sergei Magnitsky, who died under controversial circumstances in a Moscow jail three years ago.

Magnitsky’s employer, American-born British investor Bill Browder, has been the key player pushing for Western pressure on Russia over the lawyer’s death. Browder and his supporters accuse a group of Russian law enforcement officials of jailing Magnitsky, torturing him and leaving him to die after he implicated them in a scam to steal $230 million from the Russian budget.

Russian officials have called Magnitsky’s death a tragedy but said foreign governments have no business interfering with Russia’s investigation into the case. None of the key individuals accused by Browder of involvement have faced prosecution in connection with the lawyer’s death.

Both the House and Senate bills call for officials linked to Magnitsky’s death to be included in the list if evidence of their involvement is "based on credible information.”

Pomeranz, the international law expert, said the bill—if passed by the Senate and, as expected, signed into law by US President Barack Obama—would likely do little to impact the officials Browder has accused in Magnitsky’s death.

It’s unlikely these individuals are planning to visit America anytime soon—or park their money here, he said.

"My guess is they’ll find a place to put their money,” Pomeranz said. "They’ve had plenty of warning.”