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From Gitmo to the Magnitsky Case

The US / Russia Torture War

by CHRISTOPHER BRAUCHLI

“The pot calls the kettle black.”

–Cervantes, Don Quixote de la Mancha

The magic number is 18.  That is the number each country has selected to express its disapproval of the actions of the other.   Vladimir Putin said of the United States’ action:  “This, of course, poisons our relationship with the United States.”  What he’s talking about is the infamous case of Sergei Magnitsky and the United States’ response to his imprisonment and death.

Sergei Magnitsky was a Russian accountant and auditor who, while working at the Moscow law firm of Firestone Duncan, was investigating an alleged $230 million tax fraud in Russia that implicated tax officials and police officers.  In response to his investigation Sergei was arrested in November 2008 because of allegations that he himself had colluded with a client of the firm to commit tax fraud.   Under Russian law he could be held for one year without facing trial and on November 16, 2009, eight days short of one year, he died in prison. Reports suggest that during his incarceration he was placed in increasingly small spaces of confinement, denied medical care and denied contact with family members. Suffering from untreated pancreitis he ultimately died because of acute heart failure and toxic shock. The United States Congress was outraged by Mr. Magnitsky’s treatment.

On June 12, 2012, the House Foreign Affairs Committee passed what was called in part the “Sergei Magnitsky Rule of Law Accountability Act of 2012” and on December 14, 2012, it was signed by President Obama.  It had nothing to do with the rule of law as it pertained to the prisoners indefinitely detained in Guantanamo, the torturing of prisoners in U.S. custody, nor did it have anything to do with the fact that Mr. Magnitsky was held in prison for 8 days less than one year without being brought to trial.  Its stated purpose was simply to punish 18 Russian officials the Congress thought were responsible for Mr. Magnitsky’s treatment.  It prohibited them from entering the United States and froze their banking assets within the United States.

In response to the Magnitsky act, Russia took a number of steps, the most recent of which was to ban 18 Americans from entering Russia.  Those banned by the Russians include Americans the Russians believe were involved in human rights violations and others who have violated the “human rights and freedoms of Russian citizens abroad” by prosecuting those citizens.  The Russians are supported in their belief that the United States was involved in human rights violations by the Constitution Project Study that was released on April 16, 2013.

In the Study’s opening statement it says “[T]he most important or notable finding of this panel is that it is indisputable that the United States engaged in the practice of torture. . . . [T]his conclusion is grounded in a thorough and detailed examination of what constitutes torture in many contexts, notable, historical and legal.”

Two people included in the Russian ban are John Yoo who was a deputy assistant attorney general in the Office of Legal Counsel of the U.S.  Department of Justice who drafted memoranda justifying torture. Another is David Addington, legal counsel and chief of staff to then vice-president, Dick Cheney.  He, too, supported  enhanced interrogation techniques that the Study concluded were torture. The Russians may have thought those people were as bad as Mr. Magnitsky’s handlers.  They may also have thought that keeping Mr. Magnitsky in jail for less than a year was much less worse than what the U.S. has done to prisoners at Guantanamo.  If they thought that, they were right.

On April 15, 2013 an op-ed piece written by Samir Naji al Hasan Moqbel, a Guantanamo detainee, was published in the New York Times describing his treatment.  Like Mr. Magnitsky, Samir  has been neither charged with a crime nor tried. Unlike Mr. Magnitsky, he was not entitled to be released after being imprisoned for one year.  He has been at Guantanamo  for 11 years and 3 months and there is no end in sight.

Unlike Mr. Magnitsky he has not been refused appropriate medical care.  Indeed, on March 15, 2013 he was in the prison hospital because he was ill.  Prior to being admitted to the hospital and up to the present, he was on a hunger strike. The hospital personnel did not think that a hunger strike was good for him.  In response to his refusal to eat while in the hospital “eight military police officers in riot gear, burst in. They tied my hands and feet to the bed.  They forcibly inserted an IV into my hand.  I spent 26 hours in this state, tied to the bed.  During this time I was not permitted to go to the toilet.  They inserted a catheter, which was painful, degrading and unnecessary.  I was not even permitted to pray.  . . . I am still being force-fed.  Two times a day they tie me to a chair in my cell.  My arms, legs and head are strapped down.  I never know when they will come. . . . ”

The Russians do not understand that by torturing people and detaining people indefinitely our government believes it is doing good things because it is protecting the world from bad things except, of course, the bad things it is doing.

If the Russians find that hard to understand, they are not alone.

Christopher Brauchli is a lawyer in Boulder, Colorado. He can be emailed at brauchli.56@post.harvard.edu