Adding Insult to Murder

Moscow's gross lack of justice and accountability one year after the death of Sergei Magnitsky is a call to action -- and Washington should honor its human rights rhetoric with firm sanctions.

One year ago tomorrow, Sergei Magnitsky was, for all intents and purposes, murdered after being held in a Russian jail for 358 days. Last week, Russian authorities figuratively spit on his grave as five officials connected to Magnitsky's case were awarded commendations by the Interior Ministry. The evident absence of any accountability or justice in Russia has lead two members of the U.S. Congress to propose a visa ban and asset freeze against 60 Russian officials involved in the Magnitsky matter. Their efforts should be embraced by President Barack Obama's administration, and European governments should adopt similar measures.

Magnitsky was a 37-year-old lawyer working for the Moscow firm Firestone Duncan where he represented the investment fund Hermitage Capital Management. Hermitage had been Russia's largest foreign investor during the early Putin years -- until, that is, its head, William Browder, ran afoul of certain Russian officials and had his visa revoked in 2005 on "national security" grounds. A British citizen, Browder had been pushing for greater rights for minority shareholders and better corporate governance among Russian companies. It seemed he pushed too far, especially against such prized state assets as Gazprom. In 2007, Russian authorities opened an investigation against him and Hermitage for tax evasion to the tune of $16.2 million.

Magnitsky actively fought the tax-evasion charges against Hermitage in Moscow and uncovered evidence suggesting that Russian Interior Ministry (MVD) officials engaged in the massive theft of $230 million by using information obtained from the tax-evasion case against Hermitage to fraudulently obtain money in tax refunds from the state. He gave formal testimony against the MVD's criminal activities, and he named names, including high-ranking officials. Within a month of his testimony, Magnitsky was arrested on charges of personal tax evasion by the very same officials whom he had accused. Magnitsky denied the charges against him, alleging that his imprisonment was designed to pressure him to retract his testimony and instead implicate Browder and Hermitage.

Despite the nonviolent nature of his alleged crimes, Magnitsky was kept in appalling conditions for nearly a year without bail or permission to see his wife and two children. He soon developed health problems and was diagnosed at Matrosskaya Tishina jail hospital with numerous ailments, including pancreatic and gallbladder disease. He was scheduled to have surgery, but instead was transferred in July 2009 to Moscow's Butyrskaya Prison, which does not have a hospital. Despite numerous requests from Magnitsky for basic medical treatment, prison officials denied him all care. His condition was allowed to deteriorate to the point that, on Nov. 16, 2009, Magnitsky died.

This kind of denial of medical care is a common practice in Russia, according to human rights activists. Yukos lawyer Vasily Aleksanyan, for example, who contracted tuberculosis and HIV/AIDS and went blind while in custody, was released after a harrowing experience. Detention and denial of treatment are used to compel prisoners to cooperate and implicate others. "Preliminary imprisonment of a person who is innocent before being tried generally looks like a sophisticated medieval revenge," wrote the respected business daily Vedomosti newspaper (a joint venture between the Wall Street Journal and the Financial Times) two days after Magnitsky died. "But, as we see, it is practiced in Russia even in investigating economic crimes."

Three days after Magnitsky's death, Russian Justice Minister Aleksandr Konovalov vowed to carry out a "serious probe." In a meeting with Russian President Dmitry Medvedev several days later, Ella Pamfilova, then head of the presidential human rights council, described Magnitsky's situation as "a murder and a tragedy." The next day, Medvedev ordered a high-level probe into the matter, and the stand-alone Investigative Committee announced it had opened a criminal case over "negligence and prison officials' failure to provide medical aid." To this day, however, not a single charge has been brought against any officials involved in the case.

On the contrary, a number of those in the MVD connected to the Magnitsky matter were promoted this year, and then last week -- to add insult to injury -- five were given awards for distinguished service. Lt. Col. Oleg Silchenko, a lead investigator in the Magnitsky case, and Maj. Pavel Karpov, implicated for fraud in Magnitsky's testimony, were each named "best investigator"; Col. Natalia Vinogradova, Col. Irina Dudukina, and Maj. Artem Churikanov were also honored. It seems to be more than just coincidence that MVD officials have timed these awards for the one-year anniversary of Magnitsky's death, reflecting their utter contempt for efforts to bring justice and accountability to this case.

In an August speech, Medvedev lamented that his anti-corruption campaign was producing few results. The Magnitsky case gives ample evidence that ministries like the MVD and others are openly defying the president -- or, equally plausible, that Medvedev's rhetoric is nothing more than that. There are other examples, notably the Yukos case, but the Magnitsky matter on its own is sufficient to expose the Russian government's corroded and corrupt rule of law. Indeed, it shows how Russian authorities literally can get away with murder. The handling of the Magnitsky case is designed to make critics of the Russian government and those looking to expose corruption and misbehavior think twice, but it should also make foreign investors think carefully before doing business in the country.

In light of the glaring lack of any Russian efforts to bring accountability to the matter, U.S. Sen. Ben Cardin (D-Md.), chairman of the Commission on Security and Cooperation in Europe -- also known as the Helsinki Commission -- sent a letter on April 26 to Secretary of State Hillary Clinton requesting the cancellation of U.S. visas held by those Russian officials responsible for the "torture and death in prison" of Magnitsky. "While there are many aspects of this case which are impossible to pursue here in the United States," Cardin wrote, "one step we can take ... is to deny the individuals involved in this crime and their immediate family members the privilege of visiting our country. The United States has a clear policy of denying entry to individuals involved in corruption, and it is imperative that the U.S. Department of State act promptly on this matter."

Based on information provided by Magnitsky's colleagues and attorneys, Cardin and his staff produced a list of 60 Russian officials from the Russian Interior Ministry, Federal Security Service, Federal Tax Service, arbitration courts, general prosecutor's office, and Federal Prison Service, along with detailed descriptions of their involvement in Magnitsky's death.

In September, Cardin, together with Congressman James McGovern (D-Mass.), co-chairman of the congressional Tom Lantos Human Rights Commission, put forward the Justice for Sergei Magnitsky Act of 2010, which would codify the sanctions against those 60 Russians. Russian human rights activists have supported Cardin and McGovern's efforts. Moscow Helsinki Group head Lyudmila Alexeyeva urged other countries to follow the same approach. "If nothing is being done, the international community should impose sanctions," she said, according to Interfax. Canada, Britain, and Poland are considering similar measures. (Amazingly, Alexeyeva was questioned late last week by investigators in the case because she had complained that the matter was not properly being pursued.)

The proposed legislation ought to garner bipartisan support with the new Congress, and Obama should sign it into law. But Cardin is already working to broaden the sanctions' impact: Recognizing that the officials on his list may not be planning visits to the United States anytime soon, Cardin has encouraged the European Union, Canada, and others to adopt similar sanctions.

Some supporters of the Obama administration's "reset policy" with Russia, both in and out of the U.S. government, object to the proposed legislation because they worry that it will damage bilateral relations. But the Russian judicial system's blatant inadequacies and the regime's corrupt, criminal nature should outweigh their qualms. Lawlessness in Russia has been rampant under Medvedev and Prime Minister Vladimir Putin. Obama's "reset policy" shouldn't distract from the fact that we can do something about it even if Russia's leaders won't.



Al Qaeda's Nuclear Ambitions

Ayman al-Zawahiri promises to make his next smoking gun a mushroom cloud.

American authorities managed to foil al Qaeda's latest plot to attack -- via hidden explosives in mail parcels -- but the long-term question remains unanswered: How can they ensure that they stay one step ahead of the terrorist group?

The good news is that there's no need to wonder what the terrorists' strategic and tactical goals are -- one need only listen to what their leaders have already told us. The bad news is that we no doubt won't like what we hear. Al Qaeda's leaders yearn to acquire and use weapons of mass destruction against the United States; if they acquired a nuclear bomb, they would not hesitate to use it. Indeed, such an attack would be meant to serve as a sort of sequel to the 9/11 plot.

The evidence for those intentions aren't hidden in encoded communications or classified intelligence. Quite the opposite: They're hidden in plain sight. Just as Osama bin Laden issued a fatwa to declare war on the United States in 1998, his deputy, Ayman al-Zawahiri, issued a fatwa a decade later to herald a prospective next stage in the conflict. If we take him at his word, some day jihadists will use weapons of mass destruction to change history once and for all.

Of course, al Qaeda leaders have spoken of acquiring weapons of mass destruction for well over a decade. They have had little observable success in achieving their goals of producing a nuclear bomb or biological weapon capable of producing mass casualties. Fortunately, it is extremely difficult, but not impossible, for a terrorist group to acquire a strategic weapon of mass destruction (WMD). Nonetheless, the al Qaeda core has kept at it over the years, in the hopes that time and opportunity will enable it to overcome the daunting challenges in this regard.

What has changed recently is that the goal is no longer theoretical, but operational -- a change spurred by Zawahiri's intervention. Rather than follow bin Laden in issuing a religious edict, Zawahiri chose to release a book in 2008 titled Exoneration. In it, he resurrects a fatwa issued by senior Saudi cleric Nasir al-Fahd in May 2003 -- notoriously, the only such treatise that ever endorsed the use of WMD. Zawahiri adopts Fahd's ideas wholesale. He uses the same ideas, thoughts, examples, and scholarly citations to reach the same conclusion: The use of nuclear weapons would be justified as an act of equal retaliation, "repaying like for like."

Zawahiri raises key Quranic themes to sweep away all potential objections to the use of WMD. He offers answers to questions about the legality of killing women, children, and the elderly; the justice of environmental destruction; the morality of harming noncombatants; the tactical prudence of attacking at night; and analyses of deterrence. Zawahiri adopts Fahd's examples verbatim: The Prophet Mohammed's attack on the village of al-Taif using a catapult, for instance, permits the use of weapons of "general destruction" incapable of distinguishing between innocent civilians and combatants.

The take-away from Zawahiri's book is that the use of weapons of mass destruction should be judged on intent rather than on results; if the intent to use WMD is judged to be consistent with the Quran, then the results are justifiable, even if they clearly violate specific prohibitions under Islam. The same reasoning is applied in a detailed explanation of such matters as loyalty to the state, contracts, obligations, and treaties; the permissibility of espionage; and deception and trickery. For example, on the topic of Muslims killed in combat unintentionally in the fight against infidels: "When Muslims fight nonbelievers, any Muslim who is killed is a martyr."

Aside from its general endorsement of WMDs, we should pay special attention to two operational messages embedded in Zawahiri's book.

First, America is a special object of Zawahiri's attention when discussing a nuclear attack. Zawahiri explicitly ties U.S. crimes to the alleged need to use WMD, quoting Fahd: "There is no doubt that the greatest enemy of Islam and Muslims at this time is the Americans."

Zawahiri further explains that he considers the United States to be a "single juridical entity" under Islam. It's a verdict with chilling implications: Zawahiri means to say that all Americans are valid targets, regardless of whether they are men, women, or children. This is not a mere aside; it is a careful choice of words that reflects a seriousness of purpose.

Indeed, he is at pains to prove his judiciousness. He cites a variety of viewpoints from the Quran and hadiths (sayings of the Prophet Mohammed), some of which support his judgments, others which do not. At times, he dramatically prefaces his conclusion with the words "I say ..." to draw attention to the fact that his judgments digress from the views held by some Islamic scholars; it is also a way for Zawahiri -- a medical doctor, not a religious scholar by training -- to assume authority for himself as an arbiter of Islamic law.

Second, al Qaeda has reckoned with the horrific scale of a nuclear attack; indeed, Zawahiri sees mass casualties as a point in WMDs' favor. Zawahiri's book explicitly justifies a potential attack that could kill 10 million Americans. Again, that enormous figure is not merely tossed off casually by Zawahiri. He believes that such a plan requires justification, and he is satisfied, at the conclusion of his book, that he has done so.

It is notable that Zawahiri repeatedly uses the phrase "artillery bombardment" in the context of discussing the wide-scale destruction of a WMD attack. For al Qaeda, it seems, modern weapons of mass destruction are simply a form of weapon that cannot distinguish between civilians and combatants. Nuclear weapons, Zawahiri wants to argue, are no more morally significant than the catapult often cited in the Quran and hadiths. Here Zawahiri quotes Fahd once again: "If a bomb were dropped on them, destroying 10 million of them and burning as much of their land as they have burned of Muslim land, that would be permissible without any need to mention any other proof."

Needless to say, Zawahiri's approach goes against all Western theories of just war. Zawahiri's dismissal of moral qualms in jihad echoes the words of his mentor, Islamist philosopher Sayyid Qutb: "The Islamic jihad has no relationship to modern warfare, either in its causes or in the way it is conducted."

Zawahiri is a man of action, not contemplation, and his tone leaves little question that he believes the West has not yet been exonerated for its crimes. And like bin Laden in 1998, Zawahiri is not only a cleric but an operational planner -- we can be assured that he is planning al Qaeda's redemption by means of the terrible weapons he champions. Exoneration is a warning that the rules of engagement may be about to change. We would be foolish not to heed it.