In 2008, Sergei Magnitsky, a Russian tax lawyer hired to audit an asset management company in Moscow, was arrested by Russian authorities for purportedly colluding with that company to evade taxes and commit tax fraud. But in reality, Magnitsky had run afoul of a state-backed corruption scheme involving the Ministry of Interior and Russian oligarchs organized crime figures. Magnitsky was held in squalid conditions in a Russian prison for nearly a year and subjected to psychological and physical abuse amounting to torture. He eventually died in prison without receiving a trial; he was 37 years old at the time of his death.
Magnitsky’s death inspired eponymous legislation in the United States that would eventually become the Global Magnitsky Human Rights Accountability Act. This legislation is what American lawmakers are using to force President Donald Trump to punish Saudi Arabia for its government’s role in the gruesome death of Saudi journalist and legal US resident, Jamal Khashoggi.
Evolution of the Magnitsky Legislation
In 2012, three years after the death of Sergei Magnitsky, the US Congress passed the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, which President Barack Obama signed into law. The “Magnitsky Act” portion of the bill, as it would be popularly called, required Obama to levy sanctions—including blocking property and prohibiting sanctioned persons from traveling to the United States—on any Russian official deemed to be culpable for the gross human rights violations against Sergei Magnitsky. The Obama Administration had 120 days to investigate Magnitsky’s case and make a determination about who was to be held responsible for his torture and death. In 2013, 18 Russian individuals were publicly named and sanctioned, though the law allowed for the White House to sanction others but keep their names confidential if deemed necessary.
By 2016, Congress recognized that while the Magnitsky Act was a useful tool for punishing serial human rights abusers in Russia, it was too limited; but simply amending the language to allow the president to implement similar sanctions across the globe opened the United States to a host of legal and strategic questions. Most notably, in order to sanction a foreign person for extreme corruption or gross abuses of human rights, the president had to use a 1977 law known as the International Emergency Economic Powers Act (IEEPA), which necessitated that the White House characterize such an individual’s actions as a US national security concern. This practice was problematic as it was detrimental to carrying out a robust American foreign policy.
As a response, a bipartisan majority in Congress agreed to adopt a bill that broadened the president’s fundamental authorities to impose sanctions for the explicit purpose of punishing those accused of carrying out gross human rights violations. Lawmakers dubbed the bill the Global Magnitsky Human Rights Accountability Act, or “Global Magnitsky Act” for short, and buried it deep in a fiscal year 2017 defense authorization bill. The most obvious difference was that the later version authorized the president to sanction human rights abusers anywhere in the world, not just in Russia, through means outside the IEEPA authorities. In addition, while the earlier Magnitsky Act required the president to investigate Magnitsky’s death and levy sanctions against those found to be responsible, the Global Magnitsky Act simply broadened the president’s ability to levy sanctions but did not actually require him to use those new tools. Lawmakers did reserve the right to call for an investigation into human rights abuses, mandating that an administration would have 120 days to investigate an alleged human rights abuse and/or gross corruption, and to notify Congress why it opted or refused to impose sanctions. It was this last provision that made headlines recently in the Khashoggi affair when nearly every member of the Senate Foreign Relations Committee signed a letter to President Trump invoking the Global Magnitsky Act’s investigatory provision.
Could the Magnitsky Sanctions Apply to Saudi Arabia?
The Global Magnitsky Act appears to be the kind of legislation the Trump Administration would require to sanction Saudi officials who are proven to be responsible for the premeditated murder of Jamal Khashoggi. While Congress cannot force President Trump to actually use his sanctions authorities, the executive branch reserves broad discretion in implementing—or refusing to implement—sanctions under the Global Magnitsky Act. The White House and its government lawyers, during both the Obama and Trump Administrations, have broadly interpreted the executive’s authorities under the law, noting that it does not have to provide extensive evidence to place sanctions on an individual guilty of gross human rights abuses. The executive branch also has very broad discretion in determining the law’s applicability to certain situations; for example, Arab allies like Egypt and Bahrain have been spared Global Magnitsky Act sanctions despite well-documented human rights violations.
What does this mean for the specific case of Jamal Khashoggi? Congress triggered the investigatory provision of the Global Magnitsky Act and, even though the Obama Administration deemed the law to be unconstitutional in 2016, the current administration is ostensibly undertaking an investigation. Indeed, the Trump Administration could argue that the high profile visit of Secretary of State Mike Pompeo to Riyadh to speak with Saudi officials, and the trip by Central Intelligence Agency Director Gina Haspel to Turkey to meet with Turkish officials, seemingly satisfy Congress’s investigatory mandate. With officials from Saudi Arabia, the United States, and Turkey all but validating reports of Khashoggi being the victim of a premeditated murder plot, there should be no question about the law’s applicability. Therefore, the Global Magnitsky Act clearly applies to this case, and anyone deemed responsible could be subjected to US sanctions.
Generally speaking, there are three possible outcomes after Congress’s calls to impose sanctions on Saudi officials specifically under Global Magnitsky Act authorities. First, the administration—like its predecessor—could argue that it does not have to abide by the law because it is unconstitutional and opt not even to investigate, let alone impose sanctions. This would be politically damaging and might invite even more hostile actions from Congress, though the administration would at least give the appearance that it was investigating the event as lawmakers asked. Second, the administration could conduct an investigation, determine the extent to which high-ranking Saudi officials, including Crown Prince Mohammed bin Salman, were responsible for the Khashoggi operation, and impose sanctions on all those responsible. This is also unlikely because it would throw US-Saudi relations, which the Trump Administration sorely wants to keep intact, into turmoil and could jeopardize the administration’s policy toward the whole Middle East. Third, and most likely, the administration may undertake an investigation and perhaps sanction officials lower in the Saudi chain of command, but it would find legal loopholes to avoid punishing the crown prince himself. Again, the Trump team could just refuse to sanction Mohammed bin Salman outright, but politically, it would be more sagacious to exploit the law’s shortcomings. It already appears that the Trump Administration would prefer to accept a story plausible enough to allow the president the room to maneuver away from sanctioning individuals while, if not silencing the calls for retribution totally, at least muting the bipartisan uproar to a survivable level.
If the Trump Administration wants to deny that the law applies to high-ranking officials, including Mohammed bin Salman, the language of the law—and the executive branch’s broad discretionary power—may actually provide a way out. The text of the Global Magnitsky Act lays out three requirements that must be met if the president wants to impose sanctions on an individual, or multiple individuals, for human rights abuses. First, the crime in question must constitute a “gross violation of internationally recognized human rights” (e.g., torture or an otherwise flagrant denial of the right to life, liberty, or security). By any objective standard the alleged torture and gruesome extra-judicial killing of an individual satisfies this standard, so government lawyers likely would not object on those grounds. If, for political and strategic reasons, the White House wants to appear to be undertaking a legitimate investigation and genuinely exploring whether high-ranking Saudi officials should be sanctioned for Khashoggi’s murder, but it does not actually want to penalize an ally it views as the linchpin to its Middle East policy, it might instruct lawyers to argue the Global Magnitsky Act does not apply to Crown Prince Mohammed bin Salman and other officials, thus sparing them from sanctions.
To do that, lawyers might argue that the second two requirements of the law are not met. For instance, Congress wrote in the Global Magnitsky Act that the victim of gross human rights violations—Jamal Khashoggi in this case—must either be working to expose illegal activities by a government (i.e., the Kingdom of Saudi Arabia) or be actively campaigning for obtaining, exercising, or defending internationally recognized human rights. Khashoggi undoubtedly angered the powerful crown prince because of his critiques of Saudi Arabia’s recent developments and the crown prince’s policies, as well as his advocacy for Saudi citizens’ social and political rights. However, Khashoggi himself was adamant that he not be considered a “dissident,” so his historically close ties to the Saudi royal family could be cited by administration lawyers to argue that Khashoggi was not working to expose government corruption. In addition, they could say that he did not fit the profile of the human rights activist whom Congress likely had in mind when it passed the law. Hypothetically, this could be a line of argument, but it is more debatable than contesting the requirement of human rights activism.
To qualify for sanctions under the Global Magnitsky Act, the individual or individuals being designated for sanctions in the Khashoggi murder case must meet one of four requirements: to be directly responsible for murder or for ordering it; to have acted as an agent for or on behalf of those directly responsible for ordering it; to have been a government official or associate of such an official who ordered that the state carry out significant acts of corruption; or to have provided material support to the official(s) who ordered the killing. The third option—dealing with corruption—would likely be out of consideration immediately, although many may argue that there is plenty of evidence to suggest the Saudi crown prince and his circle engage in corruption. As for the other requirements, the crown prince and other members of the royal family have already arrested the men they announced were involved in Khashoggi’s death, so lawyers could assert that Mohammed bin Salman neither ordered the operation nor supported it, and that way they would have a prima facie case.
Better Tools for Handling the Khashoggi Case
Ironically, the current administration actually has tools that would render the legal loopholes mentioned above irrelevant. In December 2017, the Trump Administration issued Executive Order (EO) 13818 which originally levied sanctions on officials from states like Russia, China, Pakistan, and Burma for gross human rights violations. The administration even sanctioned an Israeli citizen linked to government human rights violations in the Democratic Republic of Congo. Since the initial release, the administration has used the same tool to sanction dozens more individuals and entities for human rights violations, bringing the total number of designees to over 50. EO 13818 was, and remains, very effective because the administration drew it from the useful parts for the Global Magnitsky Act. However, it gave itself the ability to more precisely target those accused of human rights abuses, not necessarily violations (a seemingly semantic change that actually carries significant legal implications), while reducing the legal thresholds for holding those designees responsible.
The fact that the Global Magnitsky Act required proof that sanction designees, and their alleged victims, satisfy several criteria made it difficult to target serial human rights abusers who were violating international human rights as part of a broader campaign to supposedly impose law and order (such as Egypt’s Abdel-Fattah el-Sisi and Venezuela’s Nicolás Maduro). In addition, those designated for sanctions under EO 13818 no longer had to be directly responsible for gross human rights violations; instead, an individual could be subjected to US sanctions simply for being or having been “a leader or official of an entity that has engaged in, or whose members have engaged in” human rights abuses.
With these improved standards, EO 13818 is ripe for use against not only the lower-level Saudi individuals who directly took part in Khashoggi’s murder, but also the high-ranking officials who oversee entities like the intelligence services, the military, and the interior ministry—all of which were represented in the Saudi consulate during the time of Khashoggi’s killing. By the Trump Administration’s own standards, individuals like the dismissed deputy director of intelligence Ahmed al-Asiri should be expected to be sanctioned—but so too is the man who oversees Saudi intelligence, the military, and the interior ministry: Crown Prince Mohammed bin Salman.
The Global Magnitsky Act has served as a strong piece of legislation, especially because it preserves some of Washington’s moral high ground in protecting human rights. But its inherent deference to the executive branch necessarily lends it to potential abuse or neglect. Indeed, the law sits on shaky legal footing, according to some legal scholars, and the current administration could exploit the legal shortcomings to avoid truly serious punishment for the crown prince. EO 13818 is a much more useful tool for addressing Khashoggi’s murder, but the same tenets that make it more flexible and precise could be used by this administration to forego enacting the appropriate punishment for the brazen violation of internationally recognized human rights at the Saudi consulate in Istanbul on October 2, when Khashoggi was murdered. But will forceful action be applied? It is clear that President Trump already has the tools necessary to punish Riyadh should he decide to do that.