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U.S. Senators Call for Alexander Bastrykin and Other Russian Officials to be Subject to Magnitsky Sanctions in US and Europe

PRESS RELEASE
For Immediate Distribution

14 November 2013 – Two prominent U.S. Senators have called for sanctions to be applied to Russian top law enforcement officials, including Alexander Bastrykin, and other human rights violators under the Magnitsky Act in the US and in Europe.

“Henchmen like Alexander Batrykin who violate the rights of citizens” do not fall within the traditional categories of war criminals, but “the dynamic of administrative sanctions, however, changed with the passage of the Magnitsky Act in the United States,” argue US Senators Wicker and Cardin in their newest appeal “A European Magnitsky Act: Why the Continent Must Unite” revealed on Wednesday at the inter-parliamentary ‘Justice for Sergei Magnitsky’ event held in Brussels on the eve of the fourth anniversary of Magnitsky’s killing in Russian police custody.

“Senior leaders in foreign ministries across the [European] continent have addressed the Magnitsky case on numerous occasions in recent years. None of their entreaties has evoked much more than a yawn from the Kremlin,” say the Senators Cardin and Wicker who sponsored the Magnitsky bill in the U.S. Congress.

The senators have criticized the lack of concrete actions from the EU Council of Ministers in adopting Magnitsky sanctions, in the face of the impunity of Russian officials responsible for the false arrest, torture and killing of 37-year Sergei Magnitsky, and subsequent high level cover-up, and in spite of the three resolutions from the European Parliament in favour of the sanctions.

“An early positive lesson of the Magnitsky Act is that disciplinary action will be noticed and taken seriously by those accustomed to acting with impunity… For sanctions against human rights violators to be most potent, those who are unwelcome in the US should also be unwelcome in Europe,” say Senators Cardin and Wicker.

The appeal to EU Council of Ministers from Senators Cardin and Wicker is published in the new book “Why Europe Needs a Magnitsky Law” edited by a Russian-French journalist Elena Servettaz presented in Brussels yesterday.

For further information, please see:

Law and Order in Russia

An Op-Ed by Morris Davis: Today is Guantanamo’s 12th Anniversary and There’s no end in Sight

Twelve years ago, on 13 November 2001, President George W Bush signed an order authorizing the detention of suspected al-Qaida members and supporters, and the creation of military commissions. To borrow a line from the Grateful Dead: “What a long, strange trip it’s been.”

The order was modeled on one issued by President Franklin D Roosevelt on 2 July 1942, authorizing a military commission to try eight Nazi saboteurs apprehended in the United States. The men were captured, convicted and six of the eight executed in a span of 43 days. Roosevelt’s military commission was swift, secret and severe, so some urged President Bush to dust it off and use it again.

A total of seven detainees out of the 779 men ever held at Guantánamo have been convicted and sentenced. Five of the seven are no longer at Guantánamo creating a paradox: you have to lose to win. Those lucky enough to get charged and convicted of a war crime have good odds of getting out of Guantánamo, but those who are never charged could spend the rest of their lives in prison.

The seven men tried in military commissions were all convicted of providing material support for terrorism. Two of the seven – Salim Hamdan and David Hicks – were convicted solely of providing material support. In October 2012, a three judge panel of the US Court of Appeals for the Washington DC Circuit – all appointed by Republican presidents – overturned the conviction of Salim Hamdan, Osama Bin Laden’s driver. Writing for the court, Judge Brett M Kavanaugh said that before Congress passed the Military Commissions Act in September 2006, “the international law of war did not proscribe material support for terrorism as a war crime”.

Since nearly all of the men held at Guantánamo have been there since long before 2006 and most were at best low-level flunkies, the government’s inability to charge them with providing material support for terrorism means they likely will never face a military commission for a trial that might have enabled them to find a way out of Guantánamo.

Proponents of military commissions argue that the United States is in a war on terrorism, a point they claim mandates that those captured face trial in a war court rather than federal court. In September 2006, 14 high-value detainees held in CIA black sites were transferred to military custody at Guantánamo. Only one has been tried and convicted. Ahmed Ghailani is the only detainee ever transported from Guantánamo to the United States where he was convicted in federal court for his role in the 1998 bombings of US embassies in Kenya and Tanzania. Ghailani was tried in 2010 and sentenced to life in prison, and the US Court of Appeals for the Second Circuit recently affirmed his conviction.

Meanwhile, some of Ghailani’s travel companions remain mired in the military commission morass where the parties argue over whether an accused is required to come to court, whether Khalid Sheikh Mohammedcan wear a camouflage vest, whether the judge or some secret CIA monitor controls the courtroom’s audio system, and how the government gained access to defense counsels’ files. As Chief Judge Colonel James Pohl slogs through these novel issues, the prosecution says it wants a trial date in late 2014. By then, Khalid Sheikh Mohammed will have been in US custody for more than 11 years. Attorney general Eric Holder said recently that the trial would be over and KSM waiting on death row had the case been prosecuted in federal court in New York City instead.

Americans are oblivious to the high price they pay for Guantánamo. By the end of the current fiscal year, nearly $5.25bn(pdf) will have been spent on detention operations. At a cost estimated at over $2.5m per year for each detainee, the price is about 75 times higher than federal prison.

The law that has evolved from Guantánamo has been a black eye for the country; from the supreme court ruling that President Bush’s military commissions were illegal to the Washington DC circuit ruling all of the men convicted in military commissions were charged with an offense that was not a legitimate war crime. America’s enemies and allies alike, in their criticism of US war on terrorism practices, cite Guantánamo as an example of failed leadership. About the only positive thing that can be said for Guantánamo is it gives fearmongers a talking point to try and paint a distorted picture of President Obama as soft on terrorists because he wants to close it.

In his 2008 bid for the White House, Senator John McCain said:

We should close Guantánamo. Our great power does not mean that we can do whatever we want, whenever we want.

President Obama has argued repeatedly that Guantánamo needs to close, saying in a speech in May, “there is no justification beyond politics for Congress to prevent us from closing a facility that should never have been opened”.

Now, a dozen years after President Bush signed the order that led to Guantánamo and the military commissions, there is still no end in sight. It is time to end this wasteful embarrassment that undermines what the United States purports to stand for. The United States cannot afford to allow Guantánamo to “just keep truckin’ on”.

An Op-Ed by Colonel Morris Davis: On Guantanamo, Time to Face the Truth

Sen. Kay Hagan and I were born in Shelby, N.C., a city of about 20,000 people between Charlotte and Asheville. The city got its name from Col. Isaac Shelby, a hero of the Revolutionary War best known for his role in the Battle of Kings Mountain that took place about 15 miles southeast of the city that bears his name.

Hagan moved away from Shelby when she was a child. I left years later after I graduated from law school and joined the Air Force.

I moved to Washington in September 2005 when I was appointed chief prosecutor for the military commissions at Guantanamo Bay, Cuba. I stepped into the role believing the narrative we had been told by senior Bush administration officials: The men at Guantanamo were all the “worst of the worst,” the kind of fanatics who would chew through the hydraulic lines of the aircraft flying them to Cuba just to kill Americans.

For the most part, the narrative was false.

About 80 percent of the 779 men ever held at Guantanamo are no longer there; more than 500 left while President Bush was in office. Half of the 164 detainees still imprisoned were cleared for transfer in January 2010 by representatives of the CIA, FBI, Department of Defense and Department of Justice who unanimously agreed that they posed no imminent threat and the U.S. did not need to keep them.

Nearly four years later, 84 men the government says it has no need to keep remain in custody at an estimated cost of $2.7 million per man per year. If Sen. William Proxmire were still alive and in office, hundreds of millions of dollars wasted on needless imprisonment at Guantanamo would win a Golden Fleece Award.

Since 2004, the Supreme Court has decided three Guantanamo related cases: Rasul, Hamdan and Boumediene. The United States got a black eye in all three. In October 2012, the U.S. Court of Appeals for the District of Columbia Circuit – the court Congress chose to review Guantanamo military commission cases – ruled that providing material support for terrorism was not a valid war crime for conduct that predated the Military Commissions Act of 2006. In the dozen years since President Bush authorized military commissions in November 2001, just seven detainees have been convicted. All seven were convicted of providing material support for terrorism, the offense the Court of Appeals concluded was not a valid war crime, and for two of them it was the sole charge.

There is just not much good that can be said about Guantanamo.

During their campaigns for the White House in 2008, Sens. Barack Obama and John McCain both pledged to close Guantanamo. After Obama won and the GOP adopted its “if he’s for it, we’re against it” strategy, closing Guantanamo became an early casualty. Beginning in 2011, Congress placed statutory obstacles in the way of the president’s efforts to close the facility, leaving some suspended in a Wonderland-like world where being convicted of a war crime can be a ticket home and never being charged can result in confinement for life.

Some members of Congress have taken steps recently to permit President Obama to begin winding down Guantanamo. In June, the Senate Armed Services Committee voted 23 to 3 to report the National Defense Authorization Act for Fiscal Year 2014 to the full Senate for debate and approval. Hagan was one of the 23 committee members who supported the bipartisan bill.

The bill gives the executive branch greater authority to manage the detainees held at Guantanamo. This includes allowing the military to transport detainees in need of urgent medical care to military medical facilities in the U.S. The Secretary of Defense would also receive the authority to bring detainees to the U.S. for trials if he finds it is in the interest of national security and can be done without compromising public safety. These provisions will face sharp opposition, and it will take courage to see them through.

In October 1780, a band of Patriot volunteers commanded by Col. Isaac Shelby and others defeated the British at the Battle of Kings Mountain. The victorious Patriots wanted revenge for atrocities they had suffered and chose 36 men from the hundreds of prisoners they had captured. The British loyalists were given summary trials and all 36 were sentenced to die by hanging. Nine men were strung up in a tree, three at a time, before Shelby stepped up in front of the vengeful mob and ordered the killing to stop.

In 2008, in his argument for closing Guantanamo, McCain said, “Our great power does not mean that we can do whatever we want, whenever we want.” That sentiment – just because we can, does not mean we should – reflects what Shelby must have felt when he stood up in front of his Patriots and said enough is enough.

Given the many false perceptions about Guantanamo and most of the men held there, it will take courage for members of Congress to stand up for the long-overdue provisions that will help bring it to a close. I hope Hagan will be counted among that number. I hope she recalls her Isaac Shelby roots.

Morris Davis is a retired U.S. Air Force colonel. He is an assistant professor at the Howard University School of Law in Washington and a member of Amnesty International USA.