Banned by Moscow, and proud of it


A woman holds a placard with a portrait of Sergei Magnitsky during an unauthorized rally in central Moscow December 15, 2012.

Article Highlights

  • There is no moral equivalence between the US and Russia in treatment of prisoners and detainees.

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  • There is a vast difference between the treatment of Sergei Magnitsky and Khalid Sheikh Mohammed.

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  • The US should maintain its resolve in the war on terror and remain confident in the justness of its cause.

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Some kids dream of winning the World Series, others of going to outer space. I dreamed of being declared persona non grata by Moscow.

Stalin once bestowed that honor on George Kennan, architect of the Cold War doctrine of containment. Last week, Russian President Vladimir Putin made this conservative's dream come true.

On April 13, Russia banned 18 Americans from entering the country. The lucky few include a federal judge, prosecutors and law-enforcement agents, former Vice President Dick Cheney's chief of staff, commanders of the U.S. Navy base at Guantanamo Bay, Cuba. And me—apparently for my Justice Department work in approving interrogation and detention policies after the 9/11 attacks.

According to Russian Deputy Foreign Minister Sergei Ryabkov, the blacklist punishes "people actually responsible for the legalization of torture and indefinite detention of prisoners in Guantanamo, for arrests and unjust sentences for our countrymen." Happily, I learned the news while at Camp Pendleton for a federal judicial conference. Sitting among thousands of U.S. Marines seemed a good place to contemplate Putin justice.

Russia does not typically scour the world to protest the latest human-rights violations. Moscow announced its travel ban in response to American sanctions on 18 Russian officials involved in the 2009 death of Sergei Magnitsky, a lawyer in Moscow.

Magnitsky had discovered that Interior Ministry officials had used his client, Hermitage Capital, as a front to procure a fraudulent $230 million tax refund. Instead of prosecuting the corrupt officers, Russian police arrested the whistleblower. According to an investigation by the Public Moscow Oversight Commission, jailers tortured and beat Magnitsky and withheld critical medical treatment until he died.

In December, a bipartisan bill called the Magnitsky Act was passed by Congress and signed into law by President Obama. The act is intended to punish those involved in the lawyer's mistreatment. The list included investigators from the Internal Affairs ministry and a judge. They are now subject to American visa and banking restrictions.

There is no moral equivalence between the United States and Russia in their treatment of prisoners and detainees. The most obvious difference is in what constitutes "torture" in the Magnitsky case and the American war on terrorism. In the former, even according to Russian officials, Magnitsky was kept in squalid prison conditions, physically beaten by guards and denied medical treatment for serious gall bladder and pancreatic problems. All contributed, it appears, to his death. There is also speculation that he might have been murdered. Yet his treatment should not be considered anomalous. Conditions in Russian prisons are notoriously abominable and the treatment of prisoners routinely brutal.

Antiwar critics likewise claim that the U.S. has similarly mistreated and tortured al Qaeda leaders. This is a willful misreading of the record.

In the months after Sept. 11, 2001, the U.S. captured several of al Qaeda's top leaders, including Khalid Sheikh Mohammed, the mastermind behind the attacks on New York and Washington. These leaders had information about pending attacks on the nation but refused to answer questions. As is now known, the Central Intelligence Agency responded with a series of tough interrogation measures that culminated in waterboarding, applied to only three al Qaeda leaders.

There is a vast difference between the treatment of Sergei Magnitsky and Khalid Sheikh Mohammed. In line with America's anti-torture statute, which forbids the specific intent to inflict severe physical or mental pain or suffering, the Bush administration prohibited physical abuse of the detainees. Waterboarding inflicts no physical harm, but its potential use raised the greatest concern because it may cause "prolonged mental harm," as prohibited by law. What decided the question, in part, was that the U.S. had used the procedure on thousands of American servicemen as part of survival, evasion, resistance, and escape training.

The Russian government tolerated the beating of Magnitsky by prison guards, but in the rare instances when American guards have abused detainees, the U.S. has investigated, disciplined and prosecuted the offenders. Magnitsky died a horrible death. KSM and his fellows are alive and have been given such free run of the Gitmo facilities that last weekend guards had to mount a vigorous intervention to impose order.

Consider the difference between Magnitsky and terrorists at Guantanamo Bay when it comes to medical care. According to the official Russian investigation, doctors diagnosed Magnitsky with severe gall bladder and pancreas diseases that required surgery. Prison officials never provided that care. When Guantanamo began receiving detainees, medical staff provided medical care of the same quality afforded America's fighting men and women. The chief doctor said he believed that many of the detainees were receiving modern medical and dental treatment for the first time in their lives.

An even more important difference between the Magnitsky case and the war on terror is the justification. Russian officials had Magnitsky arrested to suppress internal dissent and hide official corruption and theft. Agree or disagree with the legality or effectiveness of the interrogation of KSM and other al Qaeda leaders, American leaders authorized tough measures to prevent what they believed were imminent attacks on the U.S. by a foreign enemy.

In the Magnitsky case Russia has taken another step toward restoring authoritarian government. The U.S. sought to protect the world's leading force for freedom and democracy from the attacks of Islamic fanatics.

By placing American officials and others on a sanctions list, Vladimir Putin is replaying the old Soviet game of claiming a moral equivalence with the West. Soviets complained about racial segregation in the U.S. when Americans criticized Soviet oppression of Eastern Europe. Just as the U.S. defended its Korean and Vietnamese allies, the Soviets came to the "aid" of Hungary in 1956 and Czechoslovakia in 1968. Russia claimed self-defense in its 2008 invasion of Georgia, echoing the U.S. rationale for invading Afghanistan in 2001.

These arguments succeed only with those idealists who oppose all use of force in the world, and thus see no difference between the West and its enemies. It is favored by those who equate Islamic terrorism with Israel's self-defense, or NATO's 1999 Kosovo war and the 2003 invasion of Iraq with the 1980 Soviet invasion of Afghanistan.

But just as during the Cold War, the U.S. should maintain its resolve in the war on terror and remain confident in the justness of its cause. Otherwise the Putins of the world will have won a victory against the U.S.—and against democratic liberty. For now, Mr. Putin is hoping for a victory in the Moscow courts, where Sergei Magnitsky has been put on trial posthumously, tortured even in the grave.

— Mr. Yoo is a law professor at the University of California at Berkeley and a scholar at the American Enterprise Institute.

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