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22 senators released a letter Wednesday requiring an investigation into the circumstances surrounding Khashoggi’s detention and/or killing.
In a significant show of bipartisan outrage at the alleged murder of Saudi journalist and Virginia resident Jamal Khashoggi, a group of 22 senators released a letter Wednesday requiring an investigation into the circumstances surrounding his detention and/or killing, and directing President Donald Trump to report on whether his administration will impose targeted sanctions against those found responsible.
Because the letter was co-signed by the leaders of the Senate Foreign Relations Committee (SFRC), Sen. Bob Corker (R-Tenn.) and Sen. Robert Menendez (D-N.J.), among others, it triggered a provision, which until now had never been used, contained in the Global Magnitsky Human Rights Accountability Act of 2016. That provision, which can be found at Section 1263(d) of the Fiscal Year 2017 National Defense Authorization Act (NDAA), requires that when requested by the chairman and ranking member of an “appropriate congressional committee” (in this case, the SFRC), the president must respond to those two senators within 120 days with a classified or unclassified report that: (a) determines whether one or more foreign persons has engaged in or is responsible for “extrajudicial killings, torture, or other gross violations of internationally recognized human rights;” and (b) includes “a statement of whether or not the President imposed or intends to impose sanctions with respect to the person.”
To be clear, the senators’ letter invoking this requirement does not force the Trump administration to impose Global Magnitsky sanctions on anyone. Moreover, as Georgetown Law professor Marty Lederman recently noted, according to the Obama administration, the provision itself is unconstitutional. As part of his signing statement on the 2017 NDAA, President Barack Obama asserted that he would reserve the right to adhere to or decline to act on Section 1263(d) “when appropriate” and “Consistent with the constitutional separation of powers, which limit the Congress’s ability to dictate how the executive branch executes the law.”
Still, the Corker-Menendez letter rocketed around the policymaking world this week. That’s because, with the signature of every SFRC member save Sen. Rand Paul (R-Ken.), as well as the inclusion of powerful Senate appropriators Sen. Lindsey Graham (R-SC) and Sen. Patrick Leahy (D-Vt.), the letter served as an unmistakable signal of growing indignation on Capitol Hill concerning Saudi actions with respect to the Khashoggi case, the conflict in Yemen, and a host of human rights issues.
Below are answers to a few common questions concerning the Global Magnitsky Act as it related this week to the Khashoggi case.
What happens now? Does the administration have to act? What other options are on the table?
Before taking action of any kind, were it inclined to do so (an open and fundamental question), the Trump administration would need to feel confident that it clearly understood what took place in the hours after Khashoggi entered the Saudi consulate in Istanbul. While the administration may ultimately determine that it can base its response (or lack thereof) on intelligence sources alone, the public should still demand a transparent, independent investigation.
What form such an investigation would ultimately take remains another open question. Unlike with the recent attempted killing of Sergei Skripal in Britain, the United States lacks an objective partner to sort truth from fiction, given the track records of both the Saudi and Turkish governments. Given Khashoggi’s nexus to the United States, it therefore seems entirely appropriate that the administration should offer, if not insist upon, FBI involvement in any credible investigation.
Additionally, although targeted financial and travel-related sanctions under the Global Magnitsky Act may ultimately prove to be the most appropriate response to the Khashoggi affair, they are far from the only option available to law- and policy-makers. The Trump administration would do well to also consider other options, ranging from the expulsion of Saudi diplomats in the U.S. (perhaps coordinated with NATO allies, in solidarity with our ally Turkey) to a unilateral discontinuation of arms sales and other military support to Saudi Arabia.
For their part, members of Congress are already signaling that demanding Global Magnitsky sanctions may be the start, rather than the end, of the actions they are willing to take.
Congressional disgust with the air war in Yemen, which is being led by Saudi Arabia and the United Arab Emirates with support from the U.S., appears to be growing and becoming more bipartisan. The United Nations estimates that between March 2015 and August 2018 the conflict has resulted in just over 17,000 civilian casualties, including at least 6,500 dead. According to the U.N, the majority of these casualties were caused by airstrikes carried out by the Saudi-led Coalition. Menendez has, for months, withheld approval of a planned sale of precision-guided munition kits for Saudi and Emirati use in Yemen. Were that issue to come to a vote, Corker has stated that the Senate would likely not approve of more arms being sent to Riyadh. Separately, bills related to U.S. support for the conflict in Yemen under the War Powers Act may soon be headed to floor votes in both the House and Senate. And Paul announced Wednesday that he’s redoubling efforts to eliminate not only arms sales, but “all funding, training, advising, and any other coordination to and with the military of Saudi Arabia until the journalist Jamal Khashoggi is returned alive.”
Regarding Global Magnitsky sanctions, as previously noted, ultimately the administration may elect to ignore the requirement triggered by the letter, citing constitutional separation of powers. Assuming that it conducts an investigation that supports initial reports of Saudi culpability, it could also deliver to the Senate within the 120-day timeframe a report indicating that while Saudi persons are known to have detained, rendered, and/or killed Khashoggi, it is electing not to implement targeted sanctions.
What recourse does the Senate have if the administration doesn’t act on the Section 1263(d) letter, or declines to impose sanctions?
In the narrowest sense, if the Trump administration decides to ignore the requirement or concedes that Saudi officials were involved but declines to impose sanctions on them, Congress can do little directly in response. Under law, after all, Global Magnitsky sanctions are an executive authority, and are purely elective. Broadening our aperture, however, each of these outcomes would carry significant risk of considerable congressional blowback. Congress could elect to respond to the administration’s inaction by advancing any of the legislative measures noted above. It could also, conceivably, legislate sanctions against Riyadh, taking the tack adopted in the context of Russia.
Who could the Trump Administration target with Global Magnitsky sanctions?
Careful observers of the senators’ letter honed in on the statement that, “Our expectation is that in making your determination you will consider any relevant information, including with respect to the highest ranking officials in the Government of Saudi Arabia.” This pointed language has many asking whether the administration could, if it so chooses, apply Global Magnitsky sanctions to Saudi Arabia’s Crown Prince, Mohammed bin Salman, or other senior government officials, or whether sanctions are limited to those directly involved in the alleged detaining/killing of Khashoggi. The answer, simply put, is that the administration can likely elect to sanction nearly anyone in the Saudi governmental hierarchy.
That’s because, as I have written previously, the Trump administration has already interpreted its authority under the Global Magnitsky Act in a remarkably expansive way. In December 2017, when it issued Executive Order 13818, the administration loosened the criteria under which it could designate a foreign person in four key ways. The last of these, changing designations from being “activity based” to “status based,” was the most important. In my previous analysis, I explained the significance of this change:
Finally, a fourth change in EO 13818 from the Global Magnitsky Act appears to dramatically lower the standard under which an official can be held responsible for human rights abuses or acts of corruption that take place under his or her watch, but not necessarily with his or her direct participation.
Under the Global Magnitsky Act, if the U.S. government wanted to designate, say, a senior foreign security service official for acts of torture that occurred in a jail he controlled under a theory of “command responsibility,” it generally needed to satisfy three criteria. These include that the designee maintained effective control over the subordinate individual(s) who directly committed the alleged acts of torture; that the designee had actual or constructive knowledge that his subordinates were about to commit, were committing, or had committed torture; and that the designee failed to take necessary and reasonable measures to prevent or halt the torture, or to investigate it in a meaningful effort to punish the perpetrators under his command.
Executive Order 13818 sidesteps many of these requirements by establishing a status-based relationship between officials and designated entities. Its section 1(ii)(C) notes that the U.S. government can sanction any foreign person determined “to be or have been a leader or official of an entity that has engaged in, or whose members have engaged in” serious human rights abuse or corruption. It also allows for the designation of a leader or official of “an entity whose property and interests in property are blocked pursuant to this order as a result of activities related to the leader’s or official’s tenure.”
The practical effect of the Trump administration’s interpretation, as laid out in last year’s executive order, is considerable. It means, for example, that, legally speaking, the U.S. government doesn’t need to prove that a particular foreign person was involved directly or indirectly in the Khashoggi affair in order to designate him, even if the government’s public messaging around the designation refers only to what happened to Khashoggi. The U.S. government need only prove that (a) the designated foreign person is an official within an entity, like a security service; and (b) the entity or its members have engaged in any serious human rights abuse or act of corruption. In the context of Saudi Arabia, this is likely a very low bar. The result is that many of Saudi’s leaders may currently be under threat of sanctions risk. That is, if the Trump administration is willing to act.
Originally published by the Just Security, New York University School of Law, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.