The Global Magnitsky Act, Saudi Arabia, and the case of Jamal Khashoggi.
Note: the following blog post is adapted from a series of Tweets issued by Rob Berschinski, Senior Vice President at Human Rights First. The tweets can be accessed HERE.
What should we expect on Saudi Arabia and the case of Jamal Khashoggi, now that Secretary Pompeo says that the U.S. government is reviewing the application of Global Magnitsky sanctions against individuals responsible for Khashoggi's murder?
For a primer on how members of the Senate Foreign Relations Committee forced the issue, I'd recommend reading this detailed article I wrote ten days ago, "An Explainer: the Senate’s Letter on Khashoggi and the Global Magnitsky Act.” Beyond that, here are a few answers to questions I’ve fielded in recent days:
First question: The secretary said that the State Department is “review[ing] applicability” of Global Magnitsky sanctions to individuals responsible. Can these sanctions apply to Saudi Arabia's most senior leaders?
The short answer: absolutely. The U.S. government has interpreted its Global Magnitsky sanctions authority incredibly broadly. This means that sanctions aren’t limited to those that directly carried out the killing. The government doesn't even need to prove that a senior official—say Mohammed bin Salman—ordered the murder in order to sanction him. The reason for why the U.S. government can do this relates to the wonky world of “status-based” sanctioning. Those interested can read more about “status-based” Global Magnitsky sanctions in this article.
And remember, the Trump Administration has already shown that it will use Global Magnitsky to sanction very high-ranking officials. In August, for example, it sanctioned Turkey’s ministers of justice and interior over the detention of Pastor Andrew Brunson.
Next question: If the United States can use Global Magnitsky to sanction the senior-most Saudi authorities, should it?
Short answer: It's complicated, and probably not. Global Magnitsky sanctions are incredibly powerful in part because they prohibit U.S. financial institutions from doing business with the sanctioned person/entity. This is very bad news for the person sanctioned. It means their assets are frozen and they become a pariah, financially speaking.
But when you're talking about someone with the net worth of Mohammed bin Salman, the risks of unforeseen economic impacts can be massive. Saudi Arabia invests in Uber, Tesla, and WeWork, to name a few U.S.-based corporations. There's a real case that these companies should divest, but hasty sanctions could result in chaos—particularly in an environment in which the Saudi royal family’s personal wealth is so intertwined with state resources, and so opaque.
Last question: So where should the U.S. government aim its Global Magnitsky laser beam?
Short answer: It needs to calibrate, which is complicated. If the United States only sanctions the relatively junior members of the Saudi team sent to Istanbul, and also doesn't take other actions like curtailing U.S. support to the war in Yemen, it should rightfully be seen as whitewashing the sins of its ally and covering for the Crown Prince.
Such an approach would likely—and rightly—invite Congress to act, using tools ranging from legislating sanctions, to barring arms sales, to voting on a War Powers Resolution to stop U.S. support for the Saudi-led air war in Yemen.
The right Global Magnitsky calibration is something akin to the sanctions placed on Putin's oligarchs. They need to be close enough to the boss, and holders of enough wealth, that sanctions send the clear message that Saudi policy needs to change. Simply put, they need to bite.
Getting this calibration right—both diplomatically and in terms of the impact on international financial systems—takes hard work from staff at State and Treasury, as well as consultation with allies. The administration should move quickly, but doing this right takes time. With key offices vacant and staff at both departments depleted—thank you, Rex Tillerson!—the task of smart calibration is even harder than it would be normally.
That's why Congress needs not only to push the Trump Administration on Saudi policy—including and not limited to Global Magnitsky—in the near-term, but also to ramp up its longer-term investment in diplomatic and economic statecraft, which the Administration has torn down.