115th CONGRESS Printed for the use of the 

2nd Session Commission on Security and Cooperation in Europe

How to Get Human Rights Abusers

and Kleptocrats Sanctioned Under

the Global Magnitsky Act

MARCH 13, 2018

Briefing of the 

Commission on Security and Cooperation in Europe

Washington: 2018


CSCESeal.EPS
(2)

Commission on Security and Cooperation in Europe 

234 Ford House Office Building 

Washington, DC 20515

202–225–1901

csce@mail.house.gov 

http://www.csce.gov 

@HelsinkiComm

Legislative Branch Commissioners

HOUSE 

CHRISTOPHER H. SMITH, NEW JERSEY

Co-Chairman 

ALCEE L. HASTINGS, FLORIDA

ROBERT B. ADERHOLT, ALABAMA

MICHAEL C. BURGESS, TEXAS

STEVE COHEN, TENNESSEE

RICHARD HUDSON, NORTH CAROLINA

RANDY HULTGREN, ILLINOIS

SHEILA JACKSON LEE, TEXAS

GWEN MOORE, WISCONSIN

SENATE 

ROGER WICKER, MISSISSIPPI, 

Chairman 

BENJAMIN L. CARDIN. MARYLAND

JOHN BOOZMAN, ARKANSAS

CORY GARDNER, COLORADO

MARCO RUBIO, FLORIDA

JEANNE SHAHEEN, NEW HAMPSHIRE

THOM TILLIS, NORTH CAROLINA

TOM UDALL, NEW MEXICO

SHELDON WHITEHOUSE, RHODE ISLAND

Executive Branch Commissioners

DEPARTMENT OF STATE

DEPARTMENT OF DEFENSE

DEPARTMENT OF COMMERCE

[II]

(3)

ABOUT THE ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE 

The Helsinki process, formally titled the Conference on Security and Cooperation in 

Europe, traces its origin to the signing of the Helsinki Final Act in Finland on August 

1, 1975, by the leaders of 33 European countries, the United States and Canada. As of 

January 1, 1995, the Helsinki process was renamed the Organization for Security and 

Cooperation in Europe [OSCE]. The membership of the OSCE has expanded to 56 participating States, reflecting the breakup of the Soviet Union, Czechoslovakia, and Yugoslavia. 

The OSCE Secretariat is in Vienna, Austria, where weekly meetings of the participating States’ permanent representatives are held. In addition, specialized seminars and 

meetings are convened in various locations. Periodic consultations are held among Senior 

Officials, Ministers and Heads of State or Government. 

Although the OSCE continues to engage in standard setting in the fields of military 

security, economic and environmental cooperation, and human rights and humanitarian 

concerns, the Organization is primarily focused on initiatives designed to prevent, manage 

and resolve conflict within and among the participating States. The Organization deploys 

numerous missions and field activities located in Southeastern and Eastern Europe, the 

Caucasus, and Central Asia. The website of the OSCE is: <www.osce.org>. 

ABOUT THE COMMISSION ON SECURITY AND COOPERATION IN EUROPE 

The Commission on Security and Cooperation in Europe, also known as the Helsinki 

Commission, is a U.S. Government agency created in 1976 to monitor and encourage 

compliance by the participating States with their OSCE commitments, with a particular 

emphasis on human rights. 

The Commission consists of nine members from the United States Senate, nine members from the House of Representatives, and one member each from the Departments of 

State, Defense and Commerce. The positions of Chair and Co-Chair rotate between the 

Senate and House every two years, when a new Congress convenes. A professional staff 

assists the Commissioners in their work. 

In fulfilling its mandate, the Commission gathers and disseminates relevant information to the U.S. Congress and the public by convening hearings, issuing reports that 

reflect the views of Members of the Commission and/or its staff, and providing details 

about the activities of the Helsinki process and developments in OSCE participating 

States. 

The Commission also contributes to the formulation and execution of U.S. policy 

regarding the OSCE, including through Member and staff participation on U.S. Delegations to OSCE meetings. Members of the Commission have regular contact with 

parliamentarians, government officials, representatives of non-governmental organizations, and private individuals from participating States. The website of the Commission 

is: <www.csce.gov>. 

[III]

(4)

How to Get Human Rights Abusers and Kleptocrats

Sanctioned Under the Global Magnitsky Act

MARCH 13, 2018

Page 

PARTICIPANTS 

Kyle Parker, Chief of Staff, Commission on Security and Cooperation in Europe ................... 1

Paul Massaro, Policy Advisor, Commission on Security and Cooperation in Europe ............... 2

Bill Browder, Founder and Director, Global Magnitsky Justice Campaign .............................. 3

Rob Berschinski, Senior Vice President, Human Rights First, and former Deputy Assistant 

Secretary of State ........................................................................................................................ 6

Mark Dubowitz, CEO, Foundation for Defense of Democracies ................................................. 12

Josh White, Director of Policy and Analysis, The Sentry, formerly with the Department of 

Treasury ....................................................................................................................................... 12

Adam Smith, Partner, Gibson, Dunn & Crutcher, formerly with the National Security 

Council and Department of Treasury ........................................................................................ 13

Brad Brooks-Rubin, Managing Director, The Sentry, formerly with the Departments of 

State and Treasury ..................................................................................................................... 23

APPENDIX

Op-ed piece by Rob Berschinski ..................................................................................................... 39

Op-ed piece by Mark Dubowitz and Saeed Ghasseminejad ........................................................ 47

Slides presented by Bill Browder .................................................................................................. 49

[IV]

(1)

How to Get Human Rights Abusers and Kleptocrats

Sanctioned Under the Global Magnitsky Act 

March 13, 2018

Commission on Security and Cooperation in Europe

Washington, DC

The briefing was held at 3:05 p.m. in Room SVC 212-10, Capitol Visitor Center, 

Washington, DC, Kyle Parker, Chief of Staff, Commission on Security and Cooperation in 

Europe, presiding. 

Panelists present: Kyle Parker, Chief of Staff, Commission on Security and Cooperation in Europe; Paul Massaro, Policy Advisor, Commission on Security and Cooperation 

in Europe; Bill Browder, Founder and Director, Global Magnitsky Justice Campaign; Rob 

Berschinski, Senior Vice President, Human Rights First, and former Deputy Assistant 

Secretary of State; Mark Dubowitz, CEO, Foundation for Defense of Democracies; Josh 

White, Director of Policy and Analysis, The Sentry, formerly with the Department of 

Treasury; Adam Smith, Partner, Gibson, Dunn & Crutcher, formerly with the National 

Security Council and Department of Treasury; and Brad Brooks-Rubin, Managing 

Director, The Sentry, formerly with the Departments of State and Treasury.

Mr. PARKER. We have an ambitious agenda, so we’ll go ahead and begin. Good afternoon. My name is Kyle Parker, and on behalf of the Helsinki Commission’s bipartisan, 

bicameral leadership, I welcome you all to today’s public briefing. 

Our proceeds are being livestreamed, and we’ll produce a formal U.S. Government 

transcript that will be published in hardcopy and posted on our website. We also intend 

to produce a condensed version of these proceedings highlighting specific points made by 

our panel in hopes that congressional staff and civil society will act on their expert advice, 

and thereby assist the U.S. Government in rigorously implementing the new sanctions 

authorities provided under the Global Magnitsky Act. 

The panel we have assembled here includes the leading intellectual architects of the 

Magnitsky sanctions, as well as many of our Iran sanctions programs. These people succeeded in creating unlikely and durable coalitions in and out of government, and accomplished what many had previously thought impossible. We’re also honored to have a slate 

of former senior officials who recently served in the National Security Council, Department of State, and Department of Treasury, all of which are key to coordinating and 

implementing U.S. sanctions. These panelists all have direct experience implementing 

2

Magnitsky sanctions, and I’m sure will help all of us to have a more realistic understanding of what Global Magnitsky can and can’t be used for, and most importantly how 

to use it effectively. 

In December 2017, the Trump administration imposed the first sanctions under the 

Global Magnitsky Act. As some of you may know, Global Magnitsky, unlike Russia 

Magnitsky, is a permissive authority, meaning that the administration could easily have 

chosen to ignore it. That it did not—that it came out with what was widely regarded as 

a robust first list, and that we continue to hear from executive branch colleagues that the 

administration intends to impose Global Magnitsky sanctions on a regular basis, even 

quarterly—is a strong signal of what many of us hope will be regular and rigorous 

implementation of this new law, and powerful confirmation of what can be accomplished 

when public interest and pressure influences government to use its significant powers. 

Finally, before turning the microphone over to my colleague Paul Massaro, who will 

moderate our discussion, let me say a few words about the Helsinki Commission’s specific 

interest in this topic. 

First, the Magnitsky sanctions began at the Helsinki Commission in a room like this 

just around the corner in the Capitol Visitors Center in 2009, when we first heard the 

story of Sergei Magnitsky, who at the time was being held under increasingly torturous 

conditions in one of Russia’s infamous pretrial detention centers. 

Second, the commission has a mandate to monitor the compliance of the OSCE’s rich 

body of human rights commitments across the expanse of the OSCE’s 57 participating 

States. And the participating States all agree to the abstract notion that they should keep 

their word, but it’s only when we raise specific cases that consensus starts to break down 

and things begin to get interesting. Compliance with human commitments always and 

only happens in the individual case. And the Global Magnitsky Act places the United 

States on the side of the individual victim whose rights have been curtailed or even 

denied, just as it acts to protect our country from becoming a haven for murderers, torturers, and corrupt officials. 

Thank you. And with that, I turn it over to Paul. 

Mr. MASSARO. Thank you very much, Kyle, for those powerful opening remarks. 

My name is Paul Massaro. I advise on international economic policy and anti-corruption at the commission, which means I have the privilege of working on the Global 

Magnitsky Act implementation here. 

Today’s event will proceed a little bit differently than our normal briefings. We have 

these wonderful panelists, and after everyone’s presentation we will immediately open up 

with a Q&A segment. That means we’re going to have a lot more Q&A today than we 

generally do so as to fulfill what we envision more of as a workshop or a roundtable than 

our standard briefing format. 

So when you ask a question, the first presenter or the presenter that did the presentation you’re asking on will provide an answer, after which I encourage any panelist to 

drop in with thoughts on that topic. But let’s make a concerted effort sort of not to jump 

to the next presentation and stay on topic. 

And also in your folders you’ll find a variety of materials and op-eds from today’s 

panelists, and also a few items that we’ve put together to help you navigate both the 

Global Magnitsky Act and the executive order from the administration that sort of loosVerDate 0ct 09 2002 11:57 Jun 22, 2018 Jkt 000000 PO 00000 Frm 00006 Fmt 3194 Sfmt 3194 X:\_HS\WORK\MAGNIT~4.TXT NINA
3

1 Slides are pictured in the Appendix portion of this briefing. 

ened the standard under which sanctions can be applied. But we’ll get into that more with 

our great panelists today. 

So, with that, I’ll hand it over to Bill Browder. You’ll start us off. 

Thank you. 

Mr. BROWDER. Well, welcome, everybody. Kyle, thank you for organizing this, and I’m 

looking forward to hearing all my colleagues speaking about this. 

Kyle mentioned that the whole process started in a room like this. It actually started 

with me in a room like this presenting the story of Sergei Magnitsky to the Helsinki 

Commission. And we spent I guess what could be described as—or should I say the 

process moved in lightning speed by the definition of Washington, from an initial concept 

to a law named the Magnitsky Act of 2012. But it went from basically a piece of legislation introduced in October 2010 to a piece of legislation passed in December 2012. 

The moment that it was passed, we realized that we had only gotten part of the way 

there, because having a law in place doesn’t mean anything unless you can actually implement the law. And then a struggle—or a learning curve, depending on how you want to 

describe it—then began about how to get the U.S. Government to enforce the Magnitsky 

Act. 

And so I’m here today to share with you a little bit about how we succeeded in getting some of the people who were responsible for the false arrest, torture, and murder of 

Sergei Magnitsky onto the Magnitsky list. And hopefully, in the process of giving you a 

little bit of background on what we did and how we did it, it will give you ideas on how 

to present information about other people to get them on the list. 

And so let’s see if we could just go to the first slide. 1

Let me just briefly take you though a very abbreviated version of the story so you 

can understand what we’re trying to do. The Magnitsky story all originated with a raid 

on my office in Moscow where the police seized a bunch of documents in the office—and 

you can see a bunch of vans and boxes in this chart in back of me. 

And then, if we go to the next slide. 

The documents were then used to steal $230 million of taxes that my firm paid to 

the Russian Government. 

And if we go to the next slide. 

And so Sergei Magnitsky testified against the police officers who committed this 

crime. 

And if we go to the next slide. 

And then those same police officers arrested Sergei Magnitsky. 

And go to the next slide. 

They put him in prison. They tortured him for 358 days. 

Next slide. 

And then they killed him on November 16th, 2009. So this was the crime that we 

first reported to the Helsinki Commission—to Senator Cardin, to Kyle Parker—and this 

was the crime that eventually led to the passage of the Magnitsky Act. 

If you go to the next slide. 

4

So the Magnitsky Act—and I’m speaking now about the Russia Magnitsky Act, which 

I have more familiarity with—but in terms of the takeaways from my presentation, the 

same thing could be applied toward the Global Magnitsky Act. But the Russian Magnitsky 

Act basically defined in very clear terms who was eligible for being sanctioned. And I’ll 

just read it out to you. It said that—there’s two categories. There’s Magnitsky-related, and 

then there’s other human rights related. 

So, on the Magnitsky-related, basically, the law said anyone who’s ‘‘responsible for 

the detention, abuse, or death of Sergei Magnitsky, participated in the efforts to conceal 

the legal liability for the detention, abuse, or death, benefited financially from the detention, abuse, or death, or was involved in the criminal conspiracy.’’ So this was the 

Magnitsky-related wording in the Act. 

And then the other wording, which applies to everybody else, ‘‘is responsible for 

extrajudicial killings, torture, or other gross violations of internationally recognized 

human rights committed against individuals,’’ which is the relevant paragraph for everybody other than the people in my situation. 

So we then looked—we had a mountain of documentary evidence, and we looked at 

the documentary evidence. We said, how does our documentary evidence fall into A, B, 

C, or D? And we ended up coming up with a list of 282 people that fall into one of those 

categories. 

And then the information we provided—and this is probably the most important 

slide, make sure we have it there—is the name of the human rights abuser—you have 

to know who actually did it. Interestingly, the second thing, the date of birth—this may 

look sort of strange and simplistic and obvious to you, but in places where we didn’t have 

dates of birth people didn’t get sanctioned. And so this is a real how-to: If you want to 

get someone sanctioned, make sure you know their date of birth. In the case of our situation, almost everybody was in government, and so what their position was in government. 

And then the category of the violation under the law—was it A, B, C, or D? What role 

they played. The specific details of the human rights abuse. And then, most importantly, 

what was the documentary evidence that we could show that they did what they did? 

And so, if you go to the next slide. 

This is—there’s no way I can explain this to you looking at it because the print is 

too small, but this is what we actually submitted to the State Department and Treasury 

Department. And I believe that this presentation should be in your package, and if it’s 

not then certainly the Helsinki Commission will put it in their briefing afterwards. But 

this is a pretty good template of what you can use to submit—to make submissions to 

the U.S. Government on this—on your cases. 

And I will just share with you, just to give you an example of one person that we 

did this to, just to give you an idea of what was included, if you go to the next slide. 

So one of the people who was a real bad guy in our story was a guy named Artem 

Kuznetsov. He was a police officer, and he was the guy who fabricated a criminal case 

against Sergei and arrested him. And so what do we have here? We actually submitted 

a document here showing his involvement in the crime by showing the seals of Hermitage 

companies that were seized and his signature on it. 

Next page. 

We have, on the next page, a document which shows that he was appointed to investigate Sergei Magnitsky after Sergei testified against him. 

5

On the next page, we have a document—and it’s the one that’s circled—where he was 

ordered to arrest Sergei Magnitsky. 

And as a result of these documents—if we go to the next page, on page 14—you’ll 

see that his name is now the one that’s circled in red. 

I should point out that a lot of people mistakenly think that if you have friends in 

Washington you can just come and denounce people you don’t like in whatever countries 

and they’ll be sanctioned, and I can tell you that there’s nothing further from the truth. 

In my case, after having a law named after Sergei Magnitsky, after producing this type 

of evidence, the U.S. Government then had to go out and try to find an independent 

source to verify whether this information was correct. And so every single thing that we 

provided to the U.S. Government had to be independently checked. And that’s why, at the 

moment, there’s only about 39 people on the Russian Magnitsky list out of 282 people, 

because there’s still a very long and arduous verification exercise that people have to go 

through in the government before they put people on the Magnitsky list. 

So I would say that it’s an extremely powerful tool, and it’s a tool that’s hard to 

implement. It’s taken us a number of years to get those 39 people on the list. It requires 

absolute clarity of what the role and crime that the person did, and evidence that the person did it. And it’s sparingly used, so if you want to get somebody sanctioned, you should 

expect to spend a lot of time trying to get them sanctioned. It’s not going to happen easily. 

I’m hoping that as time goes on it becomes a more pedestrian exercise and there’s more 

resources allocated to doing it, but it’s still early days and hard to do. And so one’s 

expectations shouldn’t be high entering into this process. 

I would also say—and this is important—that just the public discussion about the 

intention to sanction somebody is also a valuable tool in a human rights fight. You don’t 

necessarily have to expect on day one for them to be sanctioned, but if one can publicize 

the roles that these people that have committed human rights abuses have done, if you 

then can get people interested in Washington—Members of Congress—in repeating and 

ventilating those stories and calling on the State Department and the Treasury Department to do something, just the uncertainty of the target person sometimes has the same 

effect of actually sanctioning them. 

So that’s my prepared remarks. I’m happy to give anyone any advice, questions, anything. 

Mr. MASSARO. Thanks so much, Bill, for that detailed presentation. Could I just ask 

the first question here, and then we’ll open it up to the floor? We have about 10 minutes 

for questions with Bill here. 

I couldn’t agree with you more that the public discussion is a very, very powerful tool 

in and of itself. But is that not also dangerous? Does that also open you up to lawfarestyle attacks? And, if so, you know, what can one to do protect themselves from something 

like that? I understand you’ve faced stuff like this before yourself. 

Mr. BROWDER. Indeed. And, in fact, other people on the panel have faced attacks by 

well-funded Russians or Ukrainian Russians who are doing this kind of stuff. 

We have been sued. I was sued by Pavel Karpov, who was an officer in the Interior 

Ministry who was earning a few hundred dollars a month, who hired Andrew Caldecott 

QC, the top lawyer in libel in London, for a thousand pounds an hour to sue me, and they 

spent millions of pounds suing me. We won, but it wasn’t pleasant and it cost a lot of 

money. 

6

I would argue that it is a difficult issue. When people are well funded, they can try 

to shut you up. I would say in the United States it’s harder to sue for libel and there’s 

more of a freedom of speech than there is in the U.K., where I live. 

I would also tell you that there is one place where you’re protected absolutely, which 

is in congressional hearings. If you ventilate these issues in congressional hearings, there 

is an exemption from libel. It’s called legal privilege, where you can’t be sued for what 

you say in a congressional hearing. So that is one way to get around that particular issue. 

But there’s no doubt that when you’re fighting evil, evil fights back, and particularly 

well-funded evil. And I’ve always told people that it’s much easier to go through life trying 

to do good than it is to try to fight evil because of evil fighting back, but actually fighting 

evil probably generates a hundred times the amount of better outcome than just trying 

to do good. 

Mr. MASSARO. Thank you so much, Bill. 

Do we have any questions from the audience? Okay, well—oh, right there. Please. 

QUESTIONER. My name is Rosie Berman. I’m with the Tom Lantos Human Rights 

Commission. 

My question is about compiling this evidence. I know sometimes when you’re looking 

for documentation in another country, particularly a country like Russia, have you ever 

had trouble acquiring the documents you need? 

Thank you. 

Mr. BROWDER. Well, I think every case is different. Certain countries are more 

bureaucratic than others. In Russia, there is an incredible, incredible bureaucracy in the 

law enforcement, and as a result of that bureaucracy one can gather lots of documents 

because there’s all these procedures you can go through. But in other sort of lesser-developed countries than Russia, sometimes there’s no documents at all. 

There’s been some terrible atrocities where nothing is documented. I don’t know how 

one would gather documents of the Rohingya situation and things like that, where people 

are just fleeing burning villages and so on; or the mass rape of Yazidi women. There’s 

a lot of terrible things that are hard to document, and the government does require documentation or credible witness testimony. And so it’s not easy. 

But it’s not easy to prosecute any crime. And it’s important, to the extent that one 

can think about it, when you’re getting upset about whatever it is that’s upsetting you, 

whatever atrocity you’re witnessing, it’s always important to think about, how am I going 

to document this, what evidence will I be able to present, because just the outrage about 

what happened is not enough to get anybody to do anything. That has to be independently 

and credibly verifiable. 

Mr. MASSARO. Rob would like to jump in on this. 

Mr. BERSCHINSKI. Yes. Just to follow Bill’s point on evidence for a second, on the 

human rights side you mentioned the case of atrocities against the Rohingya, for instance. 

There are going to be some instances in which there’s much less of a paper trail than, 

for instance, much of what Bill’s put together in the Russia context over the years. In 

cases, as with the Rohingya or violations against the Yazidis, a lot of what the government is going to be looking for relate, for instance, to personal testimonies from victims. 

So we’ve had organizations that have supplied information that have been gathered after 

numerous structured interviews with victims—sometimes medical reports for those vicVerDate 0ct 09 2002 11:57 Jun 22, 2018 Jkt 000000 PO 00000 Frm 00010 Fmt 3194 Sfmt 3194 X:\_HS\WORK\MAGNIT~4.TXT NINA
7

tims that have been able to seek medical attention, and corroborated evidence that points 

to specific abusers and people higher up in the chains of command of those abusers. 

So the job of non-governmental organizations (NGOs) who want to turn over information to the government is to combine those firsthand accounts with a solid understanding 

of essentially the chain of command, so that the government theoretically can go after not 

only the person wielding the baton or the Kalashnikov, but also the person that ordered 

the crime from above. And again, just to reiterate what Bill mentioned, the U.S. Government is always looking for multiple corroborating sources. So for those that are, again, 

using the case of the Rohingya, doing interviews and bringing forward victim testimonies, 

to the extent of what your organization is doing, can be combined with, say, the work of 

U.N. special rapporteurs or other objective, credible authorities—putting that basket of 

information is what’s going to make for the most compelling case. 

Mr. MASSARO. Thanks, Rob. And if anyone would like to jump in on anyone’s question, please just lean back and give me a little signal. Thanks. 

Do we have other questions for Bill? Oh, wow. Okay, right there, please. 

QUESTIONER. I’m Dr. Toac Mending Taout [ph], Boat People SOS. 

First, thank you, Bill, for introducing me to Marcus Kolga in Canada. We worked 

together to get a similar bill passed in Canada. The question is, how can you take advantage of similar laws in other countries, now that you already have documented cases for 

use in the U.S. Government? 

Mr. BROWDER. I’m not sure I understand. How do I take advantage of——

QUESTIONER. Of the law, similar laws, such as the Magnitsky law in Canada——

Mr. BROWDER. Right, right. 

QUESTIONER.——a similar law in U.K. and Estonia and Lithuania. 

Mr. BROWDER. Okay, good question. First of all, just to summarize for those of you 

who don’t know this, there are Magnitsky laws now that exist in seven countries. The 

United States was the first with Russian Magnitsky. It then went to Global Magnitsky 

in 2016. On the same day, the Estonian Government passed an Estonian Magnitsky Act. 

Five months later, the British Government passed a Magnitsky amendment to their 

criminal finance bill. Canada in October last year, Magnitsky. Lithuania, Latvia, and then 

most recently and totally unexpectedly Gibraltar. 

So I would argue—and we’re now, trying to roll it out in Australia, France. We have 

hearings in the Swedish Parliament next week, in the Dutch Parliament. And so my hope 

is that this becomes a global standard, and it’s done globally by all countries. Having said 

that, these are early days. It’s very much of a guerilla war exercise. There’s no consistency 

between the Magnitsky acts from country to country. 

I would say the two most similar ones are the United States and Canada. Canada 

has a very strong replica and even improvement in some areas on the U.S. Magnitsky 

Act. In both countries it applies visa sanctions and assets freezes. In Britain, they just 

do asset freezes and no visa bans at the moment. In Latvia, Lithuania, and Estonia they 

just do visa bans and no asset freezes. In Gibraltar it’s just asset freezes. We currently 

have a piece of legislation going through the British Parliament that should upgrade the 

Magnitsky law to a full U.S.-Canada version. 

There is no process in Canada, yet, as far as I’m aware. I was pleased to see that 

the Canadian budget allocated $21 million to the Canadian Office of Sanctions, which 

means they can hire people and actually do this. But as far as I’m aware, there is no 

8

process. And in fact, there’s no process here at America. I mean, this is the first attempt 

at creating some process, by creating some discussion which hopefully will lead to something more concrete. 

So the answer is, I don’t know how to get anyone sanctioned in Canada. But hopefully we’ll all figure it out together. 

Mr. MASSARO. Thank you so much. We can take maybe two more questions, but then 

we have to move on. Any remaining time will be put into a general Q&A at the end. So 

if you have a burning question and you can hold it till the end, that’s great. I know Kyle 

had a short question. 

Mr. PARKER. I had a quick question. Kyle Parker, Helsinki Commission. 

Bill, you’ve had incredible success around the world in getting other parliaments to 

adopt this. I was wondering if you could just very quickly tell us your experience in 

pressing these questions in foreign parliaments versus in foreign ministries, as well if you 

could talk a little bit about how sort of getting these things out into the open, into the 

press, and on the record has made a decisive effect on the success of this campaign you 

are now a leader on. 

Mr. BROWDER. Good question. Let me just tell everybody here who has been victimized or represents victims of human rights abuses, don’t expect any serious outcome just 

going to foreign ministries or state departments and saying: We’ve been victimized. We’re 

really unhappy. It’s not in the mandate of a foreign ministry of a government to do anything about human rights abuses. It all has to happen using pressure from the outside. 

And the pressure from the outside is what I’ve discovered is parliamentary pressure. 

So the job of a foreign minister or the secretary of state is to have diplomatic relations with all countries, whether they’re good or bad. But it’s not necessarily the job of 

an elected politician. And so it’s very easy to tell a story of an atrocity to an elected politician, and then having them put pressure on the government. And so—and this comes back 

to designations as well—if you want to get somebody on the Global Magnitsky list, it helps 

a lot not just to go to the State Department, but to go to the press and to go to whatever 

politician you think cares about your issue, and get them to bring it, them to ventilate 

it, and them to regularly call on the government to see what they’re doing about it. 

Because just by itself, going to the government I think will not have any impact, 

unless it’s the most egregious case which has already been sort of accepted by the government as being something they want to do something about. 

Mr. MASSARO. Well, that’s actually a fantastic segue into our next presentation, from 

Rob Berschinski, on looking at sanctions in the context of a bilateral relationship and 

what you should be thinking about when you look to get someone sanctioned. 

Thanks. 

Mr. BERSCHINSKI. Great, thanks. And Kyle, Paul, thank you so much. Thanks to the 

Helsinki Commission for bringing us all together today. 

I’m going to build on what Bill just spoke about, and move the conversation away 

from evidence for a moment and talk about building political will. I and some of the other 

panelists are working with what’s now roughly 70 NGOs, working globally to collaborate 

around providing evidentiary packages to the U.S. Government in the hope that it will 

make designations in countries around the world. But bringing together the sorts of evidence that Bill mentioned is only half of the equation. 

9

As he said, getting designations under Russia Magnitsky is very hard work. Well, it’s 

doubly hard under Global Magnitsky. Because, as Kyle mentioned in his opening remarks, 

not only do you have to meet that evidentiary threshold, but you also have to convince 

the U.S. Government to take the action of making the sanctions designations, because the 

global law is elective while the Russia version of the law is mandatory. So before I dive 

into that topic, I’d be remiss if I didn’t take the opportunity to say a few words about 

the alternative universe we’d be operating in if Global Magnitsky actually mirrored 

Russia Magnitsky in terms of being mandatory—given that we’re seated in the one 

building on Earth that could actually do something about that difference. To do so, I just 

want to quote the executive order (EO) that President Trump signed back in December 

on Global Magnitsky, which affirms the following. 

Quote, ‘‘Human rights abuses and corruption undermine the values that form an 

essential foundation of stable, secure, and functioning societies and have devastating 

impacts on individuals, weaken democratic institutions, degrade the rule of law, perpetuate violent conflicts, facilitate the activities of dangerous people, and undermine economic markets.’’ The EO went on to say that, ‘‘Therefore, the United States seeks to 

impose tangible and significant consequences on those who commit serious human rights 

abuses or engage in corruption, as well as to protect the financial system of the United 

States from abuse.’’ And it then goes on to say that the president makes the determination that, quote, ‘‘The serious human rights abuses and corruption around the world constitute an unusual extraordinary threat to the national security, foreign policy, and 

economy of the United States, triggering a national emergency which authorizes IEEPA 

(International Emergency Economic Powers Act)-based sanctions to deal with that threat.’’

So I just want to pause for a second and reflect on the power of those words that 

were issued by the administration a few months ago. What they say is that human rights 

violations and corruption undermine stable and secure societies, as well as economic markets, to such a degree that the appropriate response in a national emergency declaration 

that brings to bear extremely powerful and coercive economic tools. And my colleagues 

will speak about this in more depth momentarily. That’s really strong stuff. And if the 

analysis is true—and I tend to think it’s true, and an overwhelming body of evidence from 

Syria to Russia to North Korea indicates that it’s true—it should be a no-brainer that a 

tool like Global Magnitsky should be used frequently, if not actually made mandatory like 

the Russian version of the law. 

So while I’m here, I would urge those working at this end of Pennsylvania Avenue 

to think about ways in which they can strengthen the Global Magnitsky Act moving forward, in line with this logic. For today, Global Magnitsky is still elective which means, 

again, that the U.S. Government must be convinced not only that the evidentiary 

threshold has been met on a particular case, but that it’s also in the U.S. national interest 

to sanction an individual or an entity. This, in turn, means that in order to maximize the 

changes that the U.S. Government takes action on a particular recommendation, NGOs, 

like mine, working to assemble evidentiary dossiers need to spend just as much care 

thinking about how to make the U.S. interest argument to the U.S. Government as they 

do making the evidentiary case. And that means showing impact from the perspective of 

the U.S. Government. 

Impact can be measured in a number of different ways. The most straightforward 

way is simply calculated in terms of the amount of assets frozen under the asset freeze 

portion of the law. The most compelling arguments toward the U.S. Government likely 

10

to also go beyond both assets frozen and simply making the point that the U.S. Government should act, because it says it stands against human rights violations and corruption. 

More sophisticated arguments can include why sanctioning a particular individual or 

entity can send a targeted message to a government, a faction of a government, or a particular military unit or a security service under a government, or isolate an individual 

spoiler or subcomponent or a government, or improve a regional security situation, or to 

provide leverage in a diplomatic discussion or a negotiation. 

Making the case in each of these scenarios requires the submitter to be cognizant of 

both geopolitical dynamics and the internal political dynamics within the country in which 

they’re working. So if, for example, in a theoretical country, and hypothetical, it can be 

shown that anticorruption reformers, working from within and outside a given government, are genuinely working toward change, but are being stymied by an entrenched, corrupt old guard, a case can conceivably be made that by using Global Magnitsky to target 

certain individuals you can have an outsized effect beyond the immediate effect both on 

those individuals and the larger deterrent effect. Yet, even in this sort of hypothetical, 

the most sophisticated sorts of arguments are also going to need to account for the potential blowback inherent in what would inevitably be described by those targeting as 

external meddling. 

So in this hypothetical, the submitter might also want to say a few words about how 

a designation or designations could be structured to minimize the potential for such 

blowback, so as to empower reformers and civil society, and not necessarily hardliners or 

the old guard within a country. The same goes for a slightly different hypothetical, in 

which it’s well understood that, say, commanders of an internal security service of a U.S. 

ally are consistently using torture or engaging in extrajudicial killings. One could make 

a case that a handful of Magnitsky designations, perhaps made only after diplomatic—

quiet diplomatic outreach and other warnings from the U.S. Government—could sideline 

the worst offenders and open up space for a new approach. 

In this hypothetical, designations could be accompanied by a pledge from the United 

States that would accompany the designations of, for instance, additional security sector 

assistance, right? So you’re marrying up the stick and the carrot, and telling that government that the action of the designations is not necessarily an aggressive step on behalf 

of the U.S. Government, not punitive, but is an attempt to bolster the country’s security 

and stability in the long run. And, again, that’s very sophisticated, tricky diplomatic 

activity. But it’s the way this tool should be used in plenty of instances. And it’s the way 

in which we could apply this tool to allies and friends of the United States, and not just 

those that are in an adversarial relationship with the United States. 

And then last, just to mention something Bill said earlier, in addition to making 

smart arguments toward U.S. Governments, advocates working in this space need to be 

sure to, of course, employ all the other tools in their toolbox. So that’s letter writing, that’s 

bringing on champions on the Hill and/or other noteworthy voices—anything that can be 

done to grow political will because, just as Bill said, at the end of the day the job of most 

U.S. diplomats is to maintain the bilateral relationship. And it’s going to be exceedingly 

difficult to—not impossible, as we saw through the designations that were released in 

December—but difficult to make this case. So public pressure is really also the key. 

Thanks. 

Mr. MASSARO. Thank you so much, Rob. 

11

Let me ask about those designations made in December. I know that you led a coalition of NGOs and sort of offering some credible information. You guys were sort of the 

first wave of what we hope is many, many waves in this. Could you speak to your experience thinking about these sorts of issues while assembling that package and leading that 

coalition of NGOs? 

Mr. BERSCHINSKI. Yes, thanks. So in December the Trump administration, at roughly 

the 1-year point of the passage of the law, designated 52 individuals and entities. There 

were 13 primary designations on individuals, another 2 secondary individuals were designated, and then I think 37 related entities were also designated. As Kyle mentioned, 

I think most of those of us working on the outside felt like this was a successful first outcome. What we’ve seen over the course of the five or so years that the Russian version 

of the law has been in effect is that each year the U.S. Government has gotten, at least 

in my analysis, a little better at doing this, at setting up its process. And as you can 

imagine, the growth in complexity, from a law that looks at just one country to a law that 

conceivably can look at the 190-some-odd countries in the world, is exponentially more 

complicated. 

And so what we’re facing, among other things, at the State Department and the 

Treasury Department, apart from political will narrowly defined, is also a bandwidth 

issue. There should be no doubt about it. This is very hard work. It’s very labor intensive. 

I think what’s in today’s headlines should only underscore the fact that our friends at 

State, and to a lesser extent Treasury, are laboring under really difficult conditions right 

now. And there just aren’t enough people to do a lot of this work, irrespective of some 

of the great information that’s coming in from the outside. So if I could just make a plug 

on that point too. To those that are thinking about how to strengthen the law moving 

forward and what the Congress can be doing, language that earmarks, for instance, certain funds to make sure that this tool is used in the future would probably be money wellspent. 

In terms of what the groups that several of us coordinated over the course of the last 

year did, is we feel like it’s better for human rights and anti-corruption NGOs to be 

working together to provide recommendations to the U.S. Government, than kind of inundating it with submissions from all over that are uncoordinated. So we’re running a voluntary process in which groups agree to come together, bring these evidentiary packages, 

brainstorm how to make the most compelling case along the lines of what I just described, 

and hand over to the U.S. Government what we have. The government is under absolutely 

no obligation to take what we’re giving them, but we’re hopeful that what we can do is 

help them along the way in terms of doing some of the report that, as Bill mentioned, 

the U.S. Government then needs to corroborate. 

What we saw out of, say, those 13-odd individuals sanctioned in the last round is 

that, depending on how you count, roughly half of them were, I think it’s safe to say, 

impacted by either Members of Congress or members of civil society, either directly or 

indirectly. So that’s not to say that what NGOs did resulted in six or seven designations, 

but between what this group and others did, I think we can notch up a few wins. 

Mr. MASSARO. Okay. Thanks so much, Rob. Could we open it to questions once again, 

for Rob? Please, right there. If you could please state your name and affiliation. Thank 

you. 

QUESTIONER. Yes. Woody Barnett from [CCP?] in Pittsburgh. 

12

I was just wondering, what does the Helsinki Commission do to hold its member 

states accountable for the human rights abuses? The first speaker talked about some of 

the smaller states don’t have the bureaucratic paper trails and all that. But what is the 

commission doing to address that? 

Mr. PARKER. Holding events like this. 

Mr. MASSARO. Yes. [Laughter.] Well, the Helsinki Commission, first of all, does not 

have member states. The Helsinki Commission is a U.S. agency mandated to monitor 

compliance with commitments that were made under the Organization for Security and 

Cooperation in Europe framework. And in order to do that, we hold all sorts of things. 

We hold events. We write letters. We interface with members. We bring in meetings. All 

sort of things like that. So, you know, that’s what we’re doing. We have both regional and 

thematic advisors. I’m a thematic advisor. I work on international economic policy. I think 

we have a lot of our regional advisors here today, actually, work on a number of regions. 

And all the countries of the OSCE region are covered. Does that answer your question? 

Mr. PARKER. Paul, I think Mark has——

Mr. MASSARO. Oh, yes. Mark, please. 

Mr. DUBOWITZ. Paul, can I? Just something Rob said—I mean, I think we all share 

this, having either worked inside the U.S. Government, trying to convince Treasury and 

State to do these kinds of designations. I’m wondering—is the Helsinki Commission positioned, for example, to host on its website a Global Magnitsky human rights and corruption watch list? And so the idea would be both your commission and outside groups could 

feed into you open source evidence of individuals and entities who otherwise could be 

sanctionable under Global Magnitsky, have not yet been sanctioned for whatever reason—

mostly a resource issue inside USG. But you actually could have a watch list. And we’re 

actually watching these individuals and entities. 

That would be very useful from a naming and shaming perspective, which is often 

why these designations are important—I mean, the visa bans and the asset freezes are 

useful to the extent that there are assets within the U.S. jurisdiction and travel bans that 

we can enforce. But what’s most useful is a naming and shaming component, sending a 

message out to the international financial community that these are people that you 

should stay away from, because we have deep concerns over their human rights abuses 

and corruption. And by merely having that watch list, you’re not subject to the same designation thresholds that U.S. Treasury Department or State Department would be. 

Is that within your mandate? Is there any reason why—I mean, I’d ask any of the 

panelists here—maybe Adam, others—why you couldn’t do that or shouldn’t do that? But 

it certainly seems like we could get a lot more of these sort of notional designations out 

there if we could do it through a watch list, as opposed to strict designations. 

Mr. WHITE. Well——

Mr. DUBOWITZ. Tell me, Josh, why we can’t do it. 

Mr. WHITE. Sure. Can everyone hear me? So I think the argument against that is 

also the same argument against why we wouldn’t want to share the names of possible 

targets with the media, and publicize it broadly, which is that it undermines the efficacy 

of the sanctions, right? If people know that they are on the radar for sanctions, they are 

going to prepare. They’re going to start squirreling away their assets, setting up front 

companies. They are going to know that they’re being scrutinized and they’re going to get 

nervous. 

13

And so when we look for impact as the Treasury office responsible for kind of determining which targets move forward and building those packages, what we look for are 

the people who are kind of the best-kept secrets, right? And so the people who perhaps 

are on the front page or people are associating with sanctions, but those who would have 

just as much impact may not be on everyone’s radar. No one—you know, not everyone 

has heard of, but are just as vitally important to those who are committing human rights 

abuses and engaging in corruption. 

I think that if you give people a heads up, not only does it give them time to prepare, 

but also for those of you who are overseas gathering information, collecting documents, 

doing source interviews—if your organization is associated with kind of doing the U.S. 

Government’s bidding, you know, serving as sort of de-facto investigators for my former 

team at the Office of Foreign Assets Control (OFAC) or my colleagues elsewhere in 

government, there are serious kind of implications for safety and security. And so I think, 

one, there’s an impact concern. 

You—I know for a fact—and in the last round, we shied away from doing targets that 

were highly publicized because, you know, in terms of financial impact, we thought the 

jig was up and the cat was out of the bag. Now, with visa bans, that’s a little bit different 

because there’s very little someone can do to prepare for having their visa revoked. But 

in terms of hiding their assets, you know, once people are under suspicion, they take precautions to protect themselves. 

Mr. DUBOWITZ. Can I just quickly respond to that? Because I actually think it’s 

tremendously useful. 

So, I agree—the best-kept secrets deserve to kept secret. And that seems to me a role 

for the U.S. Government to go after the best-kept secrets and to keep those people off any 

kind of watch lists. Then there are the worst-kept secrets, right? Those are the people 

that are so obvious in the public domain, are committing gross human rights violations 

and corruption. And there is, it seems to me, an opportunity to put those people on a 

quasi-governmental watch list, protected to libel suits, that has the name and shame 

impact I think we would all be looking before. And somewhere between the best-kept 

secrets and the worst-kept secrets is going to be a judgment call, right, about whether 

this particular entity or this particular individual should be publicized. 

But it would seem to me that there is at least—would you agree that there are a 

certain number of entities and individuals who are the worst-kept secrets who already are 

out there. They’ve probably already structured their finances because they know they’re 

on some kind of hit list at some point. Let’s get that on a Helsinki Commission human 

rights and corruption watch list, a formal list that then I would guess—Adam, you would 

know this better than I do. Would that list be picked up by financial institutions, for 

example, when they are investigating whether to green light a financial transaction? I 

mean, it’s a formal or quasi-formal government list. And those——

Mr. SMITH. It would be fed into the analysis. 

Mr. DUBOWITZ. Right. So it would be fed into the analysis. You would actually get—

to a certain degree, you would start to isolate these people from the financial system, even 

without doing a specific specially designated national (SDN) designation. And then we’d 

leave the best—or would leave the best-kept secrets to your former colleagues on OFAC. 

Mr. MASSARO. So Bill would like to jump in on this real quick. Thanks, Bill. 

14

Mr. BROWDER. I just wanted to point out that this has been a big learning process 

for me and for my team, seeing how the whole rollout of sanctions works, and who it 

affects, and what the implications are. And we started out—and I should say that it was 

effectively our idea, this—when Magnitsky was killed to do visa bans and asset freezes. 

But we discovered that actually there was a far better consequence to this than those two 

consequences that come from this. Which is that whether or not people know they’re going 

to be on the sanctions list—and pretty much everybody who’s, like, really a bad guy knows 

that that is coming down their way, and so they’re probably already prepared even if 

they’re best- or worst-kept secrets. 

But the real value of putting somebody on the Magnitsky list is that they go on to 

something called the OFAC sanctions list. And when you’re on the OFAC sanctions list, 

you’re on the same list as ISIS and al-Qaeda terrorists and Mexican and Colombian drug 

barons. And every bank in the world subscribes to one of several data bases—one of them 

is called World-Check. There’s other ones. And those data bases cross reference your 

accounts, who you hold accounts for, with people who are on the OFAC sanctions list. And 

if anyone is on that OFAC sanctions list, that bank will close your account the next day. 

And I’m not just talking about U.S. banks. It can be a Venezuelan bank, or even a 

Dubai bank, or a Hong Kong bank. And the reason is because no bank wants to be in 

violation of U.S. Treasury sanctions. And the reason why they don’t want to be in violation of U.S. Treasury sanctions is a very simple risk-reward. And that is that if a person 

who’s on the sanctions list is transferring $1 million, the bank gets paid $125 to do that 

wire transfer. And if they get caught transferring money for that person who’s on the 

OFAC sanctions list, they have to pay three times the amount of money that was transferred, or $3 million. So the risk is $3 million downside for $125 upside. And so every 

bank in the world will close your account. 

And so actually the real value—and I’m not saying it’s not valuable to ban visas and 

it’s not valuable to freeze assets—of course, that’s valuable. But the real value, the devastating value, the thing that absolutely impacts these people and makes them crazy, is 

the fact that they become financial pariahs once they get put on that list. And so I would 

argue against any secrecy about all this thing. Just get on with it, put those names out 

there, and make these people think that either they’re on the list, or think there’s a good 

chance they’re going to get on that list. And then they become financial pariahs. 

Mr. DUBOWITZ. Well, actually, Bill, that’s exactly the reason—I think we’re in agreement here—that’s exactly the reason. The World-Check system is not going to only pull 

in—I think, and Adam will correct me on this—is not going to only pull in the SDN List. 

It’s going to pull in lots of different information, including credible news reports from credible news sources. And here is the opportunity. If the Helsinki Commission had a list, 

right? A quasi-governmental list—well-vetted, open-source information, credible—that 

would be pulled in by World-Check. 

Now, if you’re a financial institution and a compliance officer making a decision about 

whether to greenlight a transaction, you check the SDN List, the individual’s not on it. 

But the individual is on the Helsinki list. And you say to yourself, hmm, I bet you that 

anybody on the Helsinki list may one day appear on the OFAC list. I’m not going to 

greenlight this transaction for $125 wire transfer fee and find my bank in trouble today 

or in the future. And it seems to me, this is a way to significantly expedite the number 

of individuals and entities that we can actually get into a World-Check system, without 

waiting for OFAC which by its very constraints and resources is just not going to be able 

15

to do, at the pace that we want, the number of designations that I think probably everybody in this room would desire. 

Mr. MASSARO. Kyle, do you have something to say to this? 

Mr. PARKER. Yes, Kyle Parker, Helsinki Commission. 

Sorry to have a comment and not a question. But, one, just to confirm your point, 

Mark, in—I think it was April 26, 2010, Senator Cardin, then chair of the Helsinki 

Commission, released his own list of 60 high-level Russian officials that he believed warranted a second look by the executive branch, particularly citing, I think it was, Proclamation 7750, which was an executive order authority that could have been used to ban their 

visas and block their travel. I can’t remember exactly how many months went by, but long 

before the law picked up steam and was headed for passage, they were already in WorldCheck. I think World-Check picked them up in a matter of months, as soon as the thing 

really got heated in the press. So there’s that. 

You know, I also think one of the problems, as someone who was involved in writing 

this original authority, one of the things we were very concerned about is how do we force 

the Department of State to ban a visa and say they’ve banned a visa for this individual? 

Because, of course, the Department of State claims to us that their hands are tied by the 

Immigration and Nationality Act (INA) prohibition on the confidentiality of State Department records. I think that’s arguable whether what we were asking would have fallen 

under that. But the way we get the publicity is the SDN List, which has to be public by 

the nature of how it works. 

And so, you know, I’ve often wondered, had we had it to do over again and we were 

living in a vacuum in an ideal world, we might have gone back to the Immigration and 

Nationality Act and waived the confidentiality requirements or made it permissible or 

whatever, for a specific category of undesirables, which are already mentioned in the INA, 

certain human rights abuses and corruption and things. If you said that in those cases—

and I still—I think that’s a legislative avenue that might be worth pursuing just because 

it leads the government in this direction of saying: If you were to go into the INA and 

make that section permissive, and not tell the State Department it has to, but say you 

are no longer able to essentially say INA 222(f)17—I think that’s the section—precludes 

us from naming these individuals. 

Because I used to read Iran sanctions lists, and it would say, okay, today secretary 

designated 50 individuals—scientists, government officials, blah, blah, blah, of Iran. But 

pursuant to the Immigration and Nationality Act, can’t say who it is. And one of the 

things we found in the Magnitsky case, that it was the impact of knowing the name was 

just so much more powerful. If you didn’t know the name, and, oh, maybe there were a 

million people on a classified list, who really cared? It was like a tree falling in the woods 

that no one heard. 

And again, looking at I think some of Congress’s intent here is not always to even 

freeze any money. Sometimes—you know, it’s to block. It’s also to say: You’re not going 

to have any money in this system, even if you had any. And it’s also that cost effective 

way to afford moral solidarity with those who suffer the abuse in the foreign country and 

say, look, the U.S. Government will not be an unwitting—you know, witting or unwilling 

legitimator of your tormentors. They are blocked from our system. Anyway, I know we 

need to move on, but——

Mr. MASSARO. Yes. Thanks so much, Kyle. And thanks for that idea. 

16

I know there are more questions out there, especially on this idea, but we are going 

to move on. Try to keep it focused on implementation of the Global Magnitsky Act. And 

we’re going to move to Adam Smith now, who’s going to talk about the Treasury Department perspective, tell us, I guess, why the SDN List is important. 

Mr. SMITH. Thanks so much, it’s great to be here. 

I was formerly senior advisor to the director of OFAC and sat on the National Security Council staff under President Obama. So I had an interesting view of both a front 

row seat in the implementation agency, as well as the interagency, which tried to, of 

course, leverage sanctions. As Rob and I were colleagues at the NSC and he knows full 

well that this was a matter very near and dear to my heart, as I know it was Rob’s as 

well. And I’m very heartened to see that it’s in real life and we’re now talking about 

implementation, which is very exciting. 

And when Treasury receives sort of an executive order like this—they don’t really 

receive it, I mean, as much as they were a part of the process. But let’s just sort of assume 

that they receive it in a mailbox and they need to implement. What do they do? Well, 

there are two issues that we need to focus on. One, I think, my colleague Josh is actually 

going to speak more about, that’s the actual process. When you look at an executive order, 

how do you move the words into action, into SDNs, into sort of sanctions? The other is 

the strategic question of how Treasury is actually going to use this tool in a way that 

actually meets our foreign policy interests. And that’s a much more nuanced question, and 

I’m going to focus most of my time there. 

But first, I am going to talk a little bit about the process. And I’m going to let Josh 

fill in some of the holes after I sort of get through this. But generally, when—the beauty 

of an executive order that is under the IEEPA authority is that Treasury’s done this 

before, right? These are professionals. And OFAC is a 100 percent professionalized agency. 

There are no political appointees there. So my former colleagues, Josh’s former colleagues, 

most of them are still there. I left a few years ago, Josh much more recently. And so 

they’ve done this before. You see an executive order. You start with the prongs, which 

are the bases for the sanctions. Of course, here you’ve got incredibly broad prongs. In 

other words, human rights abuses and corruption can be almost anything you want them 

to be, because they’re not defined. 

And of course, even though OFAC as a rule has not favored designations on these 

bases—and we can talk about that; I think that’s probably a fair statement—human 

rights and corruption have appeared in some other executive orders. You know, human 

rights have appeared in a Venezuela piece fairly recently and corruption in Zimbabwe and 

a few others. But it is still sort of a fairly new concept, in a way. OFAC as a rule would 

much prefer sort of strict behavior based, much more discrete actions to sanction folks. 

So there’s been a bit of a challenge there in getting an internal definition worked up that’s 

comfortable. 

Then, of course, they’ll think about numerous targets, think about foreign policy 

priorities, sort of what Josh was saying, who are the best sort of folks that we should 

be thinking about. 

And then, of course, information collection. And we’ve talked about this a little bit, 

but I think it’s important to stop here and really emphasize that OFAC is incredibly 

flexible with respect to the information it can get. It can use—unlike many other sanctions authorities globally, it can use intel, open source, NGOs, press reports—anything. 

17

And especially for things like human rights and corruption, the role of open source and 

NGOs is absolutely critical, primarily because government-derived information from the 

intel side is often a lot more difficult, due to prioritization of collection assets, which are 

often not in places where some of these horrific things happen. 

Again, OFAC does require collaboration. I mean, that’s the key thing to remember 

here: A single source activity, a single source claim is not going to get you where you need 

to go. And then, of course, once you are on the SDN List—just to emphasize this, this 

is a death sentence in the financial world. I mean, to give you a sense of this, in Colombia 

they call being on the sanctions list, which they call Lista Clinton, which I think is interesting historically, they call it muerte civil. They call it civil death, being on the sanctions 

list. And it really is, because banks all over the world, even those entirely outside the U.S. 

jurisdiction, look at someone on the list and they just don’t want anything to do with that 

person, that thing, that entity, that corporation. And they move far, far away. 

And of course, the nice part of this evidence issue, just real quick, is that the evidence 

requirements are actually fairly modest, because this is not a judicial action. So whereas 

in a court of law you’d be beyond a reasonable doubt or a preponderance of the evidence, 

here, because it’s an administrative action, you actually need a fairly modest level of 

reasonable basis to believe, which sounds like it’s a pretty minimal standard. And it is, 

right? It’s not anywhere near a judicial standard. That being said, and Josh can speak 

to this more than I can, OFAC is very, very serious about what it means to be an SDN. 

They take that very seriously. 

They very often more than meet that standard. But as a general rule, you can actually get it at a fairly modest level. 

So the process issue, which I think is fairly standard, of how they would work this—

the questions then really become strategy. And when you think about the strategy of 

implementing a sanctions tool like this, there are a couple of questions that I’m going to 

pose as binary, but they’re not really binary. But there are these choices as to how think 

about these sanctions tools that, frankly, are pretty hard to both do at the same time. 

And you’ll see what I mean. 

For instance, the first question I had when I was looking at this tool was, are we 

aiming for messaging or for impact, right? So the quintessential example for this is Joseph 

Kony. Joseph Kony, awful, awful warlord in Central African Republic, Uganda. He has 

been on the SDN List for a decade. Does he deserve to be on the SDN List? Of course, 

he deserves it. If anybody does, he does. He deserves more than that, but he’s on the SDN 

List. However, there is a question about whether or not his ability to commit atrocities 

over the past decade has actually been implicated by the fact that he’s on the SDN List. 

He doesn’t have a bank account, as far as we know, doesn’t go to the ATM machine. 

And so the question is, is that messaging tool important enough, or do you need to have—

you need to only have sanctions on people who actually need the international financial 

system, which of course is the modus operandi for how these sanctions actually work. So 

messaging versus impact. 

One-off or network, is the next one. Will the tool be used for one-off sort of hit jobs, 

essentially, finding individual bad actors? Or are we going to look at the way we approach 

counter-terrorism and maybe counter-narcotics sanctions and look at the network where 

you sort of have a serial sanctioning of a network with the goal of disrupting and even 

dismantling entire groups of bad actors. So you’ve seen this in the terrorism context, very 

18

effective in the narcotics context where you’re looking at a cartel and trying to figure out 

which nodes are most important, and you go after not just one person or even two people, 

but whole groups of people at the same time, or over a period of time. 

Third, and perhaps most importantly there, is unilateral or multilateral. So is the 

goal here going to be imposing just from the United States or are we going to use it—

like the Global Magnitsky, these seven or eight countries that have Magnitsky—are we 

going to look at the U.K. or EU to hopefully follow us? Because the reality is that even 

though it’s certainly true that the U.S. sanctions are uniquely powerful, the reality is—

and we’ve seen this very clearly in the context of Russia sanctions especially—is that for 

some targets having parallel measures enacted by authorities other than the U.S. can be 

the difference between an annoyance as being on the sanctions list, and one that’s really 

material. And that’s an important distinction. 

Now, if multilateralization is the goal, the strategic issue becomes even more complicated, because then Treasury needs to be very concerned about the kinds of intelligence 

it can share with its foreign counterparts, and what sort of evidence can be declassified. 

Now, we know this in the European context, and we’ve learned the hard lesson, because 

European courts have often delisted people—that is, removed them from sanctions lists, 

who have been sanctioned by the EU because the European courts have found a lack of 

due process resulting from a lack, in part, of an inability to share with European courts 

or those who are sanctioned U.S.-derived intelligence, right? 

So much of the information that we gave to the Europeans—please sanction this alQa’ida person, this Taliban person—these people ended up being sanctioned. They then 

challenged those in European courts, and European courts let them out because we could 

not share that information with them, couldn’t share the information with the courts. So 

we’re very careful about that. In that context, I really think we can learn a lot from the 

counter-narcotics program, which I think is one of OFAC’s jewels that is really sort of 

underappreciated. 

Now, there are several reasons for its success, but one of them is its ability to 

multilateralize sanctions. And it does it in really interesting ways. They can share intelligence very quickly with foreign counterparties. And one of the reasons they can do it 

in ways that, frankly, the terrorism folks cannot, is that much of the information in those 

programs rely upon information that is, quote, ‘‘law enforcement sensitive.’’ That’s the 

level of classification, and not higher than that. So it’s much easier to share that. 

They’re also very good at targeting individuals without targeting the countries in 

which they reside, which means that many of the people who have been sanctioned on 

the narco programs are actually close allies of the United States. So the two countries 

who have the most number of sanctioned parties in the whole U.S. Government are 

Colombia and Mexico, two very close allies of the United States. Yet, we’ve managed to 

do that without impugning the entire jurisdiction in which they’re from. And of course, 

that really makes it a real important model, I think, for sort of this executive order going 

forward. 

Two more sort of strategic choices. Again, I set them as binary, but they don’t have 

to be binary. One here that’s very important to remember is, is there an interagency 

approach we need to be concerned about? Another way to think about it, is this a pileon exercise or is this a new-target exercise? So uniquely for this executive order, because 

of what it focuses on, the question is what is the strategy going to be with respect to other 

agencies in the U.S. Government? 

19

So it’s a strategy to pile onto other agency’s efforts, like the Department of Justice’s 

(DOJ’s) Foreign Corrupt Practices Act prosecutions? Or are we going to target individuals 

or entities that other agencies can’t pursue because of their particular operational or legal 

requirements of their authorities, right? 

It’s usually far easier to place someone on the SDN List than it is to build an FCPA 

case. That’s not to say it’s easy. It’s not easy. But if you think about the level of proof 

you need, right, at the very least because the proof is so much more modest for an SDN 

listing, you need to ask yourself: Are you actually just building on a case that’s already 

been made? And I say that what’s interesting is that some of the cases, the initial Global 

Magnitsky designations, actually had FCPA or anti-money laundering case connections 

already. So the question is, was that a useful use of these very limited resources that 

OFAC has? Or should we be looking at cases that, frankly, cannot be made by other agencies because the evidence, frankly, is not strong enough? We can take advantage of the 

fact that evidence doesn’t need to be as strong as a legal matter when we’re working on 

the executive order IEEPA sort of front, as opposed to the legal front of DOJ. 

Last—and I think it’s related a little bit to the discussion that Mark and others have 

been having up here—is the goal, I call it, outreach or shock and awe? What I mean by 

that, is the goal here to actually impose sanctions, or to deter and change behavior? 

Because if the latter is the goal—in other words, if we’re really trying to deter human 

rights violations, deter corruption, we need to structure an outreach strategy, right, to 

governments and private sector actors to warn them about the risks and, if relevant, to 

inform them what they need to do to avoid falling afoul of the EO or, in some contexts, 

getting off the EO list as well, right, sort of as an off ramp. 

Now, this strategy, as Mark I know knows perhaps better than anybody, certainly 

outside of government, was incredibly effective in many contexts in the Iran context, 

right? When I was in government, one of my first jobs was to help implement secondary 

sanctions on Iran, focusing on countries that were still trading with Iran after we, frankly, 

asked them very politely not to. And they didn’t listen, so we ended up having these secondary sanctions authorities. 

But the reality is that very few entities ended up actually being listed. It wasn’t 

because very few entities didn’t need to be listed or couldn’t be listed. But, rather, after 

people like me, with smiling faces, sort of sat down with them in terrible countries around 

the world—very sort of far, far, far flung—they decided it was not worth their while to 

continue engaging with Iran. It was much more reasonable for them to basically come in 

from out of the cold and not engage. And so the result of these sanctions, and I think 

the success of these sanctions, was that they no longer decided to engage with Iran. So 

I would argue the sanctions were incredibly successful, even though the secondary sanctions list was very, very small. 

And so the question is, is that the model here? Or is the measure of success going 

to be the size of the list or is it going to be the change in behavior? And I recognize fully, 

especially from the NGO sort of community, it’s very hard to sort of get a good bang for 

the buck for something that doesn’t happen, right? If a human rights violation does not 

occur, it’s hard to sort of demonstrate what the cause is, the effectiveness, and frankly 

the benefit of our advocacy that led to that outcome, because obviously it’s going to be 

multivariant. 

But the reality is, I think we can all agree, we’d much rather that be the outcome, 

right? We’d much rather have a tool like this prevent bad activities, rather than coming 

20

on the back end of some horrific action and just sort of mop up in, frankly, a way that 

will never be sufficient, right? Because it’s all fine and good to put people on the 

Magnitsky list, but I’d much rather people are not slaughtering the Rohingya. I’d much 

rather people are not sort of engaging in activities that cause them to be on this list. 

With that, I think I will stop. And I’m happy to take questions now or in the broader 

question period. 

Mr. MASSARO. Thank you very much, Adam. Very, very fascinating presentation. 

Just a really quick sort of factual question, and that on is on the authority underpinning the narco. That’s sort of the example that you talked about. What was the goal of 

that? Was that to, like, just knock these organizations out rather than deter organizations? Because, you know, with the Global Magnitsky authorities, they’re so new we really 

are thinking about it. And I think deterrence is usually the capacity we see it in. And 

then, also, was there an avenue for NGO participation in the anti-narco wave? 

Mr. SMITH. So to answer the second question, yes. I mean, absolutely. We often 

received inputs in much the same way from the narcotics side. The reality is that ownership structures are very opaque everywhere—[laughs]—even in the United States. But in 

the narcotics context, perhaps especially. And so we often did get a lot of inputs from outside the government in that regard that I’m aware of. 

The authorities are slightly different. The legal authority is a different law. It’s not 

IEEPA. It’s the Kingpin Act, as a general rule. But I think we’re losing the forest for the 

trees if we focus on that issue. The reality is that it’s the same basic idea, right? You 

put someone on the sanctions list, and you are outside of sort of polite financial society, 

is sort of what the outcome is. It’s muerte civil. To avoid that, he will do whatever he 

needs to do in order to avoid that. 

Now, I’m not also—and the other thing which is fascinating here, and why I think 

it’s very relevant to talk about narco, is that one of the reasons it’s also successful is the 

type of person who is a narcotics trafficker. A narcotics trafficker is uniquely situated in 

a world in which they usually want to be in one part of the world—they want to be in 

the illegal world, namely make a lot of money from the cartels. And in the other part of 

the world, they want to be in the legal world. They want be an accountant, have a house 

in the United States, send their kids to college in the U.S., et cetera. There is this need. 

And so they are uniquely vulnerable, right? If you say that you are on the SDN List, you 

can no longer have your house in the United States or send your kid to college here, they 

will almost immediately sort of move off. And so the success here is based on that sort 

of vulnerability. 

People who commit corruption in many contexts, especially global corruption, are in 

exactly the same circumstance, right? Because they need to have access to London, to New 

York, to Tokyo, to Hong Kong in order to, frankly, make their world. And so if you deny 

them that ability, much like the narcotics context, I think you can really sort of—not just 

hit them off, right, sort of make sure they can’t do it. You can actually stop their behavior. 

And the most success in my mind, for the narcotics sanctions programming, is not just 

sort of the destination of the cartels, which I think many of them have been in part 

because of the sanctions, but frankly the delistings. People who get delisted—the most 

active sanctions program in the U.S., with respect to both putting people on the list and 

taking them off the list is narcotics, right? It’s because they’ve stopped that behavior 

which, again, is what we’re after. 

21

Mr. MASSARO. Very, very interesting. Thank you. We have time for one or two questions. Ilya, please. Could we get Ilya a microphone, please? 

QUESTIONER. Ilya Zaslavskiy, Free Russia Foundation. 

I have a question about—you mentioned these people need access to capital. I have 

Rotenberg brothers in mind. So they’re already on Ukrainian sanctions. But experts who 

follow them say that they very successfully avoid or circumvent sanctions, at least in 

Europe, at least in terms of their assets. And now their relatives and their associates are 

getting some of that. So my question, do you think it’s valuable and necessary for NGOs 

to try to add them to, say, Global Magnitsky Act? Is it wise to put the same people on 

different sanctions? 

A second question, pretty much related to this—do you have any moves about Countering America’s Adversaries Through Sanctions Act (CAATSA) and more sanctions 

related to that? Because there has been some news about it. But so far only Kremlin 

report has come out, which is just a name list without any visible consequences for these 

people. 

Thank you. 

Mr. SMITH. Right. So, it’s an interesting question. Because if you do look at the SDN 

List, what you see for many entities is that they’re sanctioned under more than one 

authority. But I think that that is—if I was an NGO on the outside looking in, I would 

not focus on that. I mean, the Rotenbergs are already SDNs. Many of them are, right, 

father and the two sons, if I’m not mistaken. They’re also on the EU list. I mean, but 

there’s another part of this, of course, which is the enforcement component, right? And 

that’s, I think, another effective sort of way to sort of shine the light. 

If there is a situation in which you’re seeing that the Rotenbergs or whoever are still 

profiting in a way that suggests that they’re not actually being sanctioned because they’re 

still living the life that they used to live—in the U.S., in Europe, or what have you—I 

think that’s another useful tool with respect to sort of what an NGO can do. Not just putting people on the list, but saying, wait a second, these people are on the list, however, 

they’re still sort of engaging. Because the other component of sanctions, at least from a 

U.S. perspective, is that what you could then be focusing on is something called material 

support, right? 

So if someone is on the sanctions list, and then they are being provided support to 

by someone else, that someone else could theoretically get in trouble as well for providing 

material support to that person. That could either be an enforcement action, if they’re a 

U.S. person or an EU person, or they could become SDNs themselves depending on the 

circumstance. 

On CAATSA, I’m no longer in the government, so I have—your guess is frankly as 

good as—better than mine, to be perfectly honest. I think we were all very intrigued by 

the combination of the Forbes list and the Kremlin phonebook that came out at the end 

of January, and we’ll see what happens. I’ve heard the same rumors. It’s not clear to me 

whether or not the new sanctions are in line with the 241 list, which is what those lists 

are, or whether it’s some other components of CAATSA, but we’ll see. 

Mr. MASSARO. Thanks very much, Adam. And material support and facilitation is in 

the Global Magnitsky Act as well. 

Mr. SMITH. Exactly, because those are IEEPA concepts. 

22

QUESTIONER. Thank you. My name is Ulrich Mans. I work for the European Union 

here as a political advisor on human rights. 

Question for Adam and also to Rob. Earlier on, Adam, you mentioned that it can be 

very difficult to get the information that you have here in the U.S. to actually get, for 

example, across the Atlantic. Does it also work the other way around? For example, when 

submissions are being made here in the U.S. by entities that are from outside the U.S. 

are there particular barriers, particular restrictions, particular corroboration methodologies that apply that are different from, let’s say, the average U.S. NGO? Sort of reaching 

out to Rob’s comment about the coordinated effort, how difficult is that with NGOs that 

are based elsewhere, whether it’s Myanmar or Ukraine or elsewhere? 

Thank you. 

Mr. SMITH. The reason it’s difficult is not because the information—leaving aside sort 

of information security, personal information, whether it can be shipped out of Europe and 

all the rest. The reason it’s difficult is because of the legal deference that’s provided the 

listings. In the United States historically we provide significant deference. In other 

words—which means if OFAC puts someone on the list it is a difficult job—not an impossible job—but a difficult job to challenge that in a court of law. In the European context, 

for various reasons, it’s become a lot easier. Still not a cakewalk by any means, but there 

is now a pretty healthy body of jurisprudence and, frankly, a pretty healthy bar of lawyers—primarily in London, but elsewhere as well—who help people get off the list. 

And the way they do that—one of the primary ways they do that is by looking at 

the evidence that they have and saying this is not sufficient. The public evidence is 

insufficient as a matter of due process to keep my client on this list. And the courts in 

Europe, if they have access to no other information, which they often don’t, can’t do it. 

They agree. In other words, they say, you’re right, this is not from a due process perspective. In a court in the United States the court can review classified information, can 

reviewed unclassified—can basically have the entire body of evidence, the entire package 

that Josh and his former team put together can be reviewed by a U.S. court. The same 

cannot be reviewed by Europe. 

The structural issues here are actually interesting, to give you an example of one of 

them. So, in the United States context, very sensitive information has to be reviewed in 

what’s called an SCIF, a secure compartmentalized information facility, with only cleared 

people, right? So the judge would be cleared, the clerk would be cleared, and they would 

review this evidence. In the European court, the European Court of Justice, which is the 

highest court that deals with this in Europe, that’s in Luxembourg. And in Luxembourg 

itself, which is where the court is, there is one SCIF in the entire country. Do you have 

any guess where it is? It’s not in the court. It’s in the American embassy, right? 

And so the court itself is not even structurally set up in order to have information 

that would be shared with it by those in the United States, who are often the ones who 

derived the information, so they could look at it even if they were cleared, and even if 

some of the other sort of concerns were sort of met. So it’s a real challenge here. It’s a 

much, much easier thing to sort of bring evidence over here, and have it be used in a 

system that leads to a designation, than the other way around, especially when you’re 

dealing with government-derived information. 

Mr. MASSARO. Rob. 

23

Mr. BERSCHINSKI. The answer on my end is much simpler. We are already being 

engaged basically through word of mouth as what we’re trying to do grows through events 

like today, by organizations all over the world, who want to turn the reporting that they’re 

doing on the ground into some sort of demonstrable impact. What started out last year 

as a couple of dozen—mainly the large international human rights NGOs are growing, 

somewhat exponentially, to kind of country-level NGOs, who have a much better sense 

of what’s going on within the four corners of their borders, and often are going to have 

access to information that others don’t. And so it’s just a matter of bringing structure to 

all the information that’s out there. And that’s what we’re trying to do. 

Mr. MASSARO. Well, thank you very much. We’re now going to move on to our next 

set of speakers this time around, Brad and Josh. We’ve heard the strategic perspective 

of the Treasury Department, and now we’re going to get down a little bit more into 

process. Specifically, also looking at the construction of a corruption targeting package, 

which is a bit confusing. So please, Josh and Brad. 

Mr. BROOKS-RUBIN. Thank you. And thanks to the Helsinki Commission for having 

us. In all the sanctions strategy we’re talking about here, I guess I’m an example of panel 

speaking strategy, which is when you get invited to a panel hire somebody who is a real 

expert on the subject and bring them along. That’s what I’ve done with Josh, and so I’m 

going to really let Josh focus on this, because he was really in the weeds on this. The 

panel speaking ‘‘don’t’’ is don’t speak after a bunch of other really smart people who have 

taken all your points, so I’m going to just try to highlight a couple of very specific strategic 

issues, and then let Josh get more into the process weeds. 

Corruption is—as has been mentioned a couple of times—corruption as a prong is 

actually relatively—has not been a significant part of a lot of executive orders. Partially 

because evidence can be hard. The definition of corruption can be, you know, debatable. 

And it’s been one of these political footballs within the government when thinking about 

designations in the past. So now that we have a clear authority on it, there’s some education you need to do with the government about why corruption matters in your countries. We at the center work on just a few countries in east and central Africa. And we 

know these cases very well. But it takes a lot to get actors within the U.S. Government, 

even if they follow these issues, to see that corruption is actually the way into the objectives that they are trying to reach. 

So you know your case very well, whatever country it is that you may work on, but 

you have to put together a dossier and a set of evidence that tells a story about why that 

person and that network matters, and why corruption is the right tool to achieve the 

objectives that you’re talking about. And you can’t just tell that story once. You can’t put 

together a really good dossier, deliver it, and then sort of wait for the press release to 

come out. It takes repetition. It takes a lot of engagement, follow-up. You know, the coalition that Rob and others have led has been a very effective way to do that. But build your 

own relationships with the U.S. Government and continue to tell the story over and over 

again so that you can get the right people on the list. 

I think two other very quick points I want to make is, be strategic also in who the 

choice is. The most corrupt actor in a society may not be the right target. Rob gave a lot 

of very good examples of the strategic objectives we try to achieve with sanctions, and 

Adam mentioned a few more, especially on the network side. So for example, one of the 

South Sudanese individuals designated under Global Magnitsky, Benjamin Bol Mel, not 

a household name necessary, unless you follow South Sudan closely, but someone upon 

24

whom a series of network designations can be built, and who embodies the system of 

corruption in South Sudan. That was sort of the goal in choosing that target as opposed 

to say, maybe, the targets that have been much more in the headlines. Which then sort 

of picks up on Adam’s very important point about sort of the network and really what’s 

the impact. How are we going to be able to really ensure that this civil death is achieved 

in a really strategic way that can change the dynamics on the ground? 

The last sort of strategic point I want to make is sort of my chance to cite one of 

my favorite musicians. Chance the Rapper has a line, ‘‘Sometimes the truth don’t rhyme.’’ 

And advocates have a very hard time sometimes acknowledging nuance, or acknowledging 

gray area, or not overdoing their cases. And I think it’s very important in my—in a previous life, I was in OFAC counsel’s office, where the job is often to be difficult on these 

cases and ensure that when the government gets sued that we’ll have a case to present. 

And so there will be a lot of questions. No matter how good your evidence is, a lot 

of questions. Help the folks at Treasury and State identify, hey, this doesn’t exactly add 

up or we don’t have all the evidence here. Here’s our explanation about why. Really direct 

people through, and explain why maybe sometimes the truth don’t rhyme, but we can still 

get to a point where we can meet the standards of evidence as Adam described them. 

And then finally, I think it’s very important—where are there other tools that may 

be used? And Adam made this point, it’s great that we’re doing this. It’s great that we 

had this first round of designations. We could quickly get to Global Magnitsky fatigue 

very soon, and if it starts to be the answer for everything. And I think, again, thinking 

about strategy, thinking about what other sanctions authorities or other legal tools apply 

is very critical, because you’re going to answer the question, why this as opposed to why 

something else. 

So having given you hopefully some more thinking about where corruption fits in 

this, I’m going to turn it over to Josh, who was in really the thick of it in Treasury, putting these together. 

Mr. WHITE. Thanks, Brad. I’m going to talk a little bit about the mechanics of the 

targeting and designation process, which is kind of broadly the case for human rights and 

corruption targeting, but then talk a little bit about the nuances of targeting corruption. 

What I would say with respect to Global Magnitsky, one thing important to keep in 

mind is I think it’s reasonable to expect that the Executive Order, which is EO 13818, 

is going to be the authority that’s almost certainly going to be used moving forward. So 

while the Global Magnitsky Act kind of built the foundation and kind of set the precedent 

for the EO to be implemented, when you’re looking at the criteria that Treasury, that the 

targeters are going to use in order to build their cases which is actually going to be 

included in the administrative record, I would look to the EO because that lays out kind 

of what activity, what criteria is sanctionable. And so the same people who are looking 

at the abundance of information in order to build the packages are going to be looking 

at that same set of criteria. 

For corruption, it would be Section B. And as others have alluded to, it’s pretty broad, 

and it was intentionally written so. Corruption has been very challenging for targeters 

to build for a number of reasons: the availability of information, the recency of information—oftentimes, cases of corruption aren’t discovered until years later. And some other 

executive orders, such as Venezuela or Syria, are written in a way where you have to 

show that the activity is ongoing. 

25

So when we looked at what we would like to do with the Global Magnitsky authority, 

the new kind of implementing EO, luckily they were able to give us, the targeters, an 

opportunity to kind of pull the best language, the most solid and foundational language, 

from other executive orders. That really gave us broad flexibility in order to target really 

the most egregious targets that we thought warranted designation. 

So how do you build a case? Start with target identification, and there are lots of 

ways that Treasury and the interagency partners it works with—there are lots of ways 

that they do that. Obviously, working with NGOs such as Rob’s coalition. But I would be 

remiss if I didn’t say there’s also email addresses for tips. So, for Treasury, it’s 

glomag@treasury.gov. [Laughter.] And for State—it would have been great if we had 

synced this up—but it’s globalmagnitsky@state.gov. And that’s an opportunity for the 

public, whether you’re an NGO or just an informant, someone who knows something, to 

write in. You might get an acknowledgement. You definitely won’t hear back about 

whether your information was used. But perhaps, you know, in instances they might follow up with additional questions. So there are lots of ways to kind of put a target on the 

radar of those who are looking at the universe of what’s possible. 

I will say when it comes to targeting corruption and human rights abuses, we view 

it as a target-rich environment. There were no shortage of names when we kind of were 

assessing the first tranche of options. And so really then it comes to kind of where do 

we have the strongest information, where are we going to have the biggest impact, as well 

as considerations like how do we have a geographically diverse target set, and one that 

kind of balances both corruption and human rights. 

The team at OFAC works with their counterparts at State, elsewhere in the interagency, but also foreign governments, law enforcement, and elsewhere to kind of get leads 

and tips about kind of who might be appropriate for sanctions. And I think some folks 

have covered a little bit about that. But I think what we look for first is where there is 

the most kind of abundance of information. 

So what the targeters will do is draft a legal memorandum, which we call an evidentiary, and this evidentiary puts forward the case for why someone should be sanctioned. And the criteria that they’re using is from the relevant executive order, in this 

case EO 13818. The evidentiary puts forward a number of pieces of information, but what 

each kind of individual example must show is that the individual or entity meets the specific criteria in the prongs. 

What I would say is, when you’re thinking about what information is helpful to provide investigators, don’t self-center. Something might seem important to you or it may not 

seem important to you, but could be the last missing piece that the targeters need in order 

to corroborate something that might already be on the radar through other channels. 

Identifying information is critical, as my colleagues have said, but think creatively. 

So not just full name, date of birth, place of birth. Passport numbers are gold. We love 

having ID numbers, passport numbers. But also things like nationality, which sometimes 

surprisingly can be difficult to demonstrate. I think a lot of people assume or assess that 

someone happens to be a citizen or a national of one country, but we actually have to 

show a piece of evidence. We have to cite to an exhibit that demonstrates that. Even 

things like gender are helpful to provide. And then, of course, for entities, you know, not 

just the address, but registration license numbers, things that show up on documents that 

are sector-specific for ID codes. 

26

If you don’t have identifiers, you’re not going to get your targets put on the SDN List. 

It’s absolutely critical, the more the better, because the OFAC Compliance and OFAC 

Licensing Divisions have to screen every time that there is a possible hit. Every time 

there’s a false hit you’ll have licensing requests. You’ll have inquiries to the compliance 

hotline. So we want to make sure that banks are actually blocking the funds for the 

people who we’re intending to go after. 

The next kind of body of information we need, which is really the core of these evidentiary memorandums, is the basis for determination. And this is really the guts of the 

evidentiary, the derogatory information that shows specific examples of acts that have 

been taken that meet the criteria of the executive order. We need to be able to use multiple sources to corroborate each example, and ideally those corroborating sources all know 

about the same kind of activity but gain the information in different ways. 

Recent information: GLOMAG is interesting in that the language in the criteria is 

written in such a way that the activity could have taken place in the past, and we don’t 

need to demonstrate that it’s ongoing, although that’s ideal. Sanctions are meant to elicit 

a change of behavior, is kind of the policy consideration behind it. And so what we want 

to do is show that there’s recent information, ideally within the past 5 years—in an ideal 

world that would be within the past year—to show that this person or this entity is 

engaged in the activity of concern, that they are kind of still up to malign activities or 

illicit activities. More historical information is still useful to demonstrate a pattern of 

behavior, but certainly the more recent the better. 

What I would say is often a challenge for NGOs is not narrating or providing your 

own assessment. The further away that the investigators get from the primary source of 

the information, the harder it is for us to use or for them to use the information. 

So, for example, if you can share—names of the sources are not necessary, so if it’s 

from a person, or if it’s from a contact, probably not necessary. But how that person would 

have known the information, how the person got the information, and why the person 

would be credible, or why the documents would be credible. Oftentimes, you know, attorneys will ask how do we know this is a genuine, legitimate document, and we have to 

be able to have a good answer for that in order to actually use that information. 

OFAC has ways of protecting that information. There’s protections for sources and 

methods, and so there are ways to keep that information protected from release. But if 

they can’t understand where the information came from, the targeters are not going to 

use it. Understanding kind of how the source knew. 

And then, finally, exculpatory information. If there’s information that you know to 

be exculpatory, it’s better for you to flag it for the NGO that you’re going through or for 

the tip line or for the person you’re interacting with in the U.S. Government ahead of 

time because, really, if it comes about later in the process, I think it stands to undermine 

the credibility of the source. So being kind of transparent about what might negate the 

story that you’re trying to tell, or might kind of contradict the facts. It doesn’t mean your 

information won’t get used, it just means that we’re seeing the full picture. 

And finally, just specific to building corruption cases, what I would say is that using 

the flexibility in the EO, I think oftentimes it’s difficult to have kind of those solid primary sources because, by nature of corruption and money laundering, those kinds of 

activities are in the shadows and are hidden from all but a few trusted sources. And so 

what it’s become is important to go out to the field. Having the targeters or people 

27

throughout the U.S. Government and in the private sector meeting with those who might 

be aware of something; or, you know, obtaining documents from a whistleblower so that 

they can provide that information that might not otherwise be available to the U.S. 

Government. 

I think that was pretty well done in our first major tranche. And I think what you’ll 

see now is a standardization of the process, where obviously this evidentiary memorandum, after it’s kind of constructed and it goes to review, it’s signed by the director of 

OFAC, that’s how someone gets on the sanctions list. But really, the bulk of the work, 

the biggest challenge, is getting to sufficiency so that the targeter can have sign-off from 

the lawyers, and that they can ultimately put it up for the director of OFAC’s consideration. 

Mr. MASSARO. Thank you very much, Brad and Josh. 

A really quick follow-up question from me. And that is, the Global Magnitsky Act has 

a provision that specific Members of Congress can write letters requesting that particular 

information or particular individuals be reviewed to be put on the sanctions list. At what 

point in the process are you guys looking at this sort of a thing? And how does that impact 

your decision? 

Mr. WHITE. I think it’s an ongoing conversation between the NGO community, quite 

frankly, the Hill, and the folks at State and at OFAC who are considering the different 

targets. I would say that there are oftentimes a large amount of overlap between the targets that are considered or put forward by the Hill and that are ultimately considered 

by OFAC. 

One point that I do want to stress, which I think has often been a misperception, 

is just because a target hasn’t gone out kind of in the first tranche, or it’s the next 

tranche, doesn’t mean that ultimately that person or that entity won’t be sanctioned. And 

I think that’s something that we’ve tried to underscore, is that sometimes there’s legal 

sufficiency reasons for why we don’t move out with the target. We simply don’t have 

enough information at the time. Other times, there might be engagement or other considerations. Or we kind of look to the kinds of strategies that Adam was articulating earlier 

in kind of trying to decide what the right fit is. 

So it’s an ongoing conversation. The challenge for the targeters, and I think the 

frustration of those outside of kind of the group of those within the U.S. Government that 

works on these issues, is that we can’t tell people—even our legislative branch—we can’t 

tell people who we’re considering for sanctions. We can’t reveal who we’re working on 

because of a number of reasons, but largely due to impact, largely due to considerations 

for what we’re hoping to accomplish by putting them on the list of specially designated 

nationals. So it’s a one-way street in terms of the information. Congress provides us with 

the targets. They certainly ask about them when we brief them later on. But it’s an 

ongoing kind of conversation that we’re always happy to take targets from or OFAC is 

always happy to take targets from whomever might have someone to suggest. 

Mr. MASSARO. Thank you. 

We’re running dangerously low on time here. We’re going to move on to Mark, after 

which we will have time for additional questions. And I hope we’re able to get a few more 

in, but I do want to be cognizant of our panelists’ time. 

So, Mark, if you’d like to—we’re looking at potential targets now under the Global 

Magnitsky Act, and in specific, Iran. 

28

Mr. DUBOWITZ. Okay, great. Well, first of all, thank you very much for having me. 

And certainly as Brad brought Josh, I brought my colleague Saeed Ghasseminejad. 

Saeed, if you could just stand up, raise your hand. He does phenomenal work investigating corruption in Iran, the Islamic Revolutionary Guard Corps (IRGC) control of the 

Iranian economy, and human rights, and has done really terrific work. 

So I’ve just a few minutes, and I think Rob was smart to save me for last, hoping 

that many of you would have left by then. Since you’re still here: Saeed and I have been 

doing a lot of work on Iran, on the corruption prong, and we’ve been looking in particular 

at the supreme leader’s $200 billion corporate conglomerates. I want to say just a few 

words about that, and then we can jump to Q&A very quickly. 

Many of you know December/January there were protests in Iran. There were hundreds of thousands of Iranians on the streets. Most of them were what I would call sort 

of middle-class poor. These are people who by education, by ambition, by sort of social 

media activity, who should be considered middle class, but they’re poor. They’re living in 

shanty towns as a result of the lack of opportunity in Iran. And unlike the 2009 revolution 

where millions of sort of middle class north Tehranis were in the street yelling ‘‘where’s 

my vote,’’ in the wake of a fraudulent election in Iran, these were Iranians who were 

saying effectively ‘‘where is my paycheck.’’ Their complaints were certainly about political 

oppression, certainly about overseas adventurism, but more so about why is the regime 

stealing our money and spending it on its own patronage networks, on its own corruption, 

and also to fund its own malign activities. 

So what we started to do is take a much deeper look at something that the U.S. 

Treasury Department in 2013 had designated, which was the supreme leader’s corporate 

holding company, which is called the Execution of Imam Khomeini’s Order—it’s a great 

name, I love that name—or IKO, or Setade, in Farsi. We looked at Setade, which Reuters 

had actually appraised as being worth at the time, a few years ago, about $95 billion. We 

looked at the Mostazafan Foundation and we looked at the Astan Quds Razavi, and these 

two foundations and this corporate conglomerate are worth, according to our assessment, 

conservatively, very conservatively, about $200 billion. 

Now the key about this is that the supreme leader’s supporters like to brag about 

his modest lifestyle. He’s a very modest cleric, but, clearly, he’s a very wealthy one as 

well. And the key thing to note about how he’s accumulated this money is that much of 

the money has been accumulated as a result of the illegal expropriation of Iranian private 

property, which is one of the reasons why Iranians who are on the street are very 

unhappy, because the regime has effectively stolen their property, post-facto kind of 

legally authorized that, and then taken this money and built up this incredible wealth 

to fund their patronage networks and their malign activity. 

Now, obviously they don’t pay taxes. Only the supreme leader’s office can audit these 

companies. And many of them are in control of sort of key sectors of Iran’s economy. So 

to give you one example, the Astan Quds Razavi Foundation owns very tight control of 

about three southern provinces of Iran, with a real estate portfolio of about $20 billion, 

including in Mashhad, where many of these protests actually first began. The U.S. 

Treasury Department I said in 2013 had designated IKO and 37 of its subsidiaries for 

sanctions-busting and for generating and controlling massive offshore or off-the-books 

investments, quote/unquote, ‘‘shielded from the view of the Iranian people and international regulators.’’ Now, unfortunately—and my bias will show here—but as part of the 

nuclear deal, for some reason the Obama Administration decided to de-designate IKO and 

29

these subsidiaries, even though it had nothing to do with nuclear sanctions or anything 

to do with the nuclear deal. I’ll say a few more words about that in a second. 

Since the deal was signed itself, there have been about 110 business and investment 

deals signed with Iranian companies. I think that number greatly understates that, but 

that’s according to Reuters. And 90 percent of those are entities that are owned or controlled by the state, including IKO and Mostazafan Foundation and Reza Foundation. 

So these entities are certainly far from transparent. Saeed and his team have identified 146 Khomeini-owned companies and 144 executives and board members associated 

with these companies. And clearly, as an NGO, we’ve been in touch with the administration and Congress advocating for the redesignation of IKO, these foundations and the 

hundreds of subsidiaries and executives that control it. 

I’ll say just one last thing, which is not only the supreme leader and his $200 billion 

conglomerate, but many of you know the Revolutionary Guards in Iran, the IRGC, maintain significant control over the strategic sectors of Iran’s economy, and this is energy and 

auto and construction and mining and engineering and telecommunications and shipbuilding. They operate through three major entities—the Khatam al-Anbya Construction 

Headquarters, the IRGC Cooperative Foundation, and the Basij Cooperative Foundation. 

And they own directly, or in combination with military entities, about 20 percent of the 

Tehran stock exchange, and they’re generating billions of dollars again in illicit funds that 

are funding these corruption networks and they’re also being used to fund their other 

malign activities. So it’s sort of just a brief glimpse. It’s a case study. We’re obviously 

highly focused on this. But Iran and the supreme leader’s entire conglomerate provides 

a very interesting insight into opportunities for Global Magnitsky. 

For those of you who are asking how can we go re-designate it once it has already 

been de-designated under the Joint Comprehensive Plan of Action (JCPOA), the answer, 

from my perspective, is, the JCPOA was never meant to grant blanket immunity to any 

entity to continue malign activities in the future, right? 

That was never the intention. If there was an Iranian bank that we find tomorrow 

funding the Quds Force or funding a missile program, even if that had been de-designated 

as part of the JCPOA—I don’t think the Obama Administration ever intended and explicitly actually said this—we’re not going to grant blanket immunity to these entities to continue their nefarious activities in the future. So if evidence can substantiate that IKO and 

Mostazafan Foundation and some of these other foundations continue after 2015 and more 

recently in the past year continue to meet the prongs in this executive order, then our 

view is that the JCPOA should not grant blanket immunity to the individuals and entities 

involved in those malign activities. 

I’ll stop there. 

Mr. MASSARO. Thank you very much, Mark. 

And I want to make a note for everyone that in your packets that were handed out 

at the beginning, you’ll find Mark’s op-ed in The Wall Street Journal on this very subject. 

In addition to Rob’s op-ed on the rollout of the Global Magnitsky Act’s designation last 

December. 

So with that, let’s take some more questions. Please, Obie [ph]. 

QUESTIONER. Thank you, Paul, very much. 

Mr. MASSARO. You’ve got a mic there. Yes, thanks. 

30

QUESTIONER. [Comes on mic.] Thank you for the panelists for this very timely discussion about an increasingly foreign policy issue that I’m very enthusiastic about, and to 

talk about implementation was I think the right thing to do. My question——

Mr. MASSARO. Obie [ph], real quick, could you just say your name and affiliation? 

QUESTIONER. Yes, sorry. Obie Moore. I’m in private law practice, focusing on criminal 

defense matters in Central and Eastern Europe, particularly Romania, Serbia, Hungary, 

these days. 

Rob made mention about when dealing with allies and friends that perhaps it doesn’t 

have to be such an onerous result. You want to bring the attention of the problem when 

you’re putting together an evidentiary case. My question is about when it is institutional 

corruption, that that still exists, particularly after 28 years of this transition from communism in Central and Eastern Europe, how you can best go about that. 

I mean, I’m interested in getting the results. The things that I see are that, for 

example, in the anticorruption fight, yes, there are backlashes to that, and as Bill said, 

that there are costs. People retaliate when you go after them and do things. How do you 

go about that, particularly given the standard of the Magnitsky Act? I suppose that 

applies to institutional matters as well, gross violations of internationally recognized 

human rights. 

If that’s the standard that you have to pose when you’re engaging in an 

anticorruption fight and the political forces that be then start to countermand that institutionally because you’re going after some of their politicians—or the other side of that is 

that the anticorruption fight in these countries are still strongly aligned with the security 

services, who then start to antagonize the independence of the judiciary and influence 

judges to not act independently and not respect separation of powers but do what the 

security services tell them to do. Are any of those types of institutional matters with—

under the, you know, remit of the Global Magnitsky Act? 

Mr. BERSCHINSKI. So the Global Magnitsky Act is, at the end of the day, a tool for 

use to advance U.S. national interests, right? So if you—in the context of Central and 

Eastern Europe, I think there are examples of countries, some of which you mentioned, 

where there is pretty entrenched structural corruption. I could foresee a way in which the 

U.S. Government would want to express its displeasure with some of those activities, and 

Global Magnitsky would be one tool among many that it could use. It wouldn’t necessarily 

be the first tool. It would be a very powerful tool. And in my former hat as a State Department official, I would probably be advocating for discussions with close allies first before 

using this tool. 

But I think to a point that was made—a very salient point that Adam made earlier—

ultimately, at the end of the day, we’re interested in the impact, right? And so to those 

of us on the outside, we may see a certain circumstance as the dog that doesn’t bark. We 

may not know, in the absence of a sanction designation, that some positive change was 

made, but our diplomats will know. 

There is one future in which our diplomats have a very nuanced and tough conversation, say, with governments that are engaged in corrupt practices in the region you’re 

talking about and certain behaviors change and Global Magnitsky is never used, and 

that’s a great outcome as far as I’m concerned. There’s a different scenario in which that 

conversation is had, behaviors don’t change, and then I, for one, am a proponent of using 

31

a tool like this. And I think you have to be tactically smart about where to apply it and 

what diplomatic message you send in where to apply it. 

So you mentioned that in some countries, in many countries these issues are systemic. Well, you could designate one or two people and the diplomatic message that 

accompanies those designations is, we recognize that the behavior goes well beyond these 

two people. We hold the potential to designate more moving forward. So if you would like 

for that not to happen in the future—we don’t want that to happen—here are ways in 

which we can work together to strengthen your law enforcement and judicial systems, and 

so on and so forth. 

Mr. MASSARO. Thank you, Rob. 

In the back here. 

QUESTIONER. My name’s Alex. I cover Azerbaijan. 

Just to follow up Obie’s previous question and Rob’s answer, this is the best way to 

address these human rights violations. But imagine a country like Azerbaijan, where 

human rights violators actually are getting promoted. So what if we come up with the 

list of those names and then we don’t name the main troublemaker, you know, who’s the 

president—like in Russia, Putin—so they actually greenlight—you know, they promote 

those violators? It will become a disappointment that they can’t live with. So this is one 

question. 

The second, can the panelists give us an idea, a timeframe? From day one we hear 

about very compelling, very—these undeniable human rights violations, and they say torture in Azerbaijani prison, and that their names pop up in that list. So just to address 

this—[inaudible]. 

Thank you very much. 

Mr. WHITE. Sure. So in terms of the timeline for designation, the answer is not a 

great one, and that answer is that it depends. It depends on a number of factors. It 

depends on the sufficiency of the information, the abundance of the information that’s 

available. Do the targeters have to work to get corroboration, is the information readily 

available? Further to Adam’s earlier point, is there going to be engagement? Are there 

going to be efforts to try to incentivize a change in behavior before sanctions ultimately 

come about? But it’s kind of a continuous process where, you know, we say the designation timeframe can—if it’s straightforward and if it’s a priority can be a matter of weeks 

or it can be a matter of months. 

That being said, every case is different. So, unfortunately, it’s hard to give a standard 

timeframe. But what I would say is that, to my earlier point, if you don’t see an individual 

sanctioned that you had really hoped for in the months following your proposal, it doesn’t 

mean that it’s not going to happen. I think there’s targets that folks have had on their 

minds for years that—you know, well before there was a Global Magnitsky Act, they now 

see a tool available to them. And so, yes, I think patience is critical, but also providing 

as much information as possible will help speed up the process. 

Mr. DUBOWITZ. If I could just add to that, I didn’t work at OFAC even though I’m 

a total OFAC groupie and have huge admiration for OFAC and Terrorism and Financial 

Intelligence (TFI). I’m an impatient sort of think tank NGO-er. And 15 years kind of 

working these issues, just a couple of strategies if you’re impatient like me. The first is, 

obviously Congress has a very important role not only in passing Global Magnitsky—and 

thanks to the great work of some of the folks up here—but actually putting in legislation 

32

required determinations—and we’ve seen this in the past—where you effectively give 

OFAC 90 days to make determinations on a list of targets. 

Now, obviously, if you like OFAC and you’re friends with OFAC and you want to be 

helpful to OFAC, it’s really useful if, before Congress passes that legislation giving these 

guys 90 days to make those determinations, you’ve been working with them behind the 

scenes for months and months, providing them with a lot of open source information to 

give them a head start. Otherwise, they may not return your calls anymore. But that’s 

one useful strategy if you’re impatient, right? Work with Congress to try and get these 

determinations. 

Now, of course, if you’re impatient, working with Congress is also a contradiction in 

terms. So there have got to be other strategies about how you can actually publicize the 

names of these individuals, and we had that sort of conversation about, can you create 

a Helsinki watch list, right? So that would be perhaps one way to do it. 

Look at other organizations, governmental, quasi-governmental NGOs, and get that 

information out in the public. Speak to reporters, right? Again, a credible story from The 

New York Times, Washington Post, some Wall Street Journal, credible publications—that 

information is again going to feed into the Wolchecks of the world. Those people, those 

entities are going to find a way into systems that are going to really complicate the lives 

of kleptocrats and human rights abusers. So never underestimate the extent to which a 

public name and shame campaign can be highly effective—maybe not as effective as an 

SDN designation or a legislative determination, but sure as hell faster. 

Mr. MASSARO. Thank you so much. 

So we’re going to take two final questions. We started at 3:05, we’ll end at 5:05. 

QUESTIONER. Thank you. I’ll be really quick. Layof Begovic [ph]. I am a former 

Bosnian minister of energy. 

I actually have a comment, quick comment. I think that the impact actually of what 

you guys are talking about is, in my view, most important from the perspective of the 

victims, because the victims’ families will feel extremely, extremely happy, even if the person who is a perpetrator or is somehow related to a perpetrator is put under sanctions. 

I don’t know if you know about the Lautenberg sanction. I’m sure some people here know 

that those were the sanctions that U.S. used to get the Bosnian Serbs to cooperate with 

the International Criminal Tribunal for the Former Yugoslavia. So, I mean, I think it’s 

much broader than just changing future behaviors. 

Otherwise, thank you very much. Excellent panel. 

Mr. MASSARO. Thank you. 

Right here. 

Sorry, Ilya. [Laughs.] 

QUESTIONER. Thank you. I’m Geeta [sp] with Voice of America Persian Service. 

I don’t know—maybe Mark is the person to answer this question. Are you suggesting 

that your new list of entities and people that you are considering for corruption cases in 

Iran be based on the Global Magnitsky Act because—is it better? Or what’s the difference? 

Does this act facilitate designations any better than other executive orders, would you 

say? 

Mr. DUBOWITZ. This may be for some of the folks at the table as well, particularly 

the attorneys. From an Iran context, I mean, there are other Iran executive orders that 

33

relate to human rights that have been used in the past and remain certainly on the books. 

I think when it comes to corruption specifically, I think the Global Magnitsky and the 

corresponding executive order are—if they’re not the only game in town, they’re the most 

powerful game in town for the specific corruption-related sanctions. 

There were, in legislation, corruption-related sanctions that related to the corrupt 

diversion of humanitarian goods. That was actually put in, I think, the Iran Threat 

Reduction Act, if I recall. But when it comes to broader corruption, if you’re going to go 

after the supreme leaders, corporate conglomerate, this executive order under Global 

Magnitsky seems to me the most powerful authorities that we have. 

Adam, do you——

Mr. SMITH. Well, there’s also an issue here, the benefit of Global Magnitsky that Rob 

knows, when we were still talking about this when we were still in government. The benefit of Global Magnitsky is that it doesn’t actually implicate the country. It’s a target on 

individuals and on entities. And it’s intriguing, I think, if you look at the initial list of 

Global Magnitsky targets, it included, frankly, people in jurisdictions that we probably 

couldn’t have a targeted sanctions program on that jurisdiction because of other equities. 

So we’ve got people who are from Israel, people who are from China, people from the 

Dominican Republic, right; so close allies or important economies that we couldn’t have 

an executive order and declare emergency with respect to those countries. 

But rather what this tool lets you do, kind of like the narcotics context or the 

counterterrorism context, is focus like a laser on the behavior of the people and leave out 

the jurisdiction in which they’re in. And that’s a real benefit here, to make it clear that 

it’s the behavior we’re after. It’s not the jurisdiction, not the innocent people in the jurisdiction who could otherwise be sort of caught up in a broader national emergency declared 

with respect to a jurisdiction or a sort of larger sort of geographic entity. 

QUESTIONER. Actually, I had a question for you as well. You spoke about the goal 

being deterrence or changing behavior. You mentioned the narco trade, you’ve seen success. What about in human rights issues? Iran has a huge issue with human rights. It’s 

a human rights violator. And the present administration wants to target Iranians in that 

specific area. Is there any rate, any chance of success, sanctioning people for human 

rights? 

Mr. SMITH. I mean, in my mind—and this is very personal, based on work I’ve done 

in places like the Balkans and other places—I think human rights are a really hard thing 

to sanction people for, not just from an evidentiary perspective but from a behaviorchange perspective, because very often people who are committing human rights violations 

are doing it in the name of what they think of as a broader ideal. You have—you know, 

that their people have been somehow aggrieved, and therefore they’re acting in a way to 

remove other people, forcible repatriation of people; the Rohingya issue, what happened 

during the Yugoslav wars in the 1990s. That’s a much harder thing, I think, to move 

people on. 

Corruption is so much more venal. It’s so much more sort of obvious, in a way, that 

I think in some respects it’s the Kony question. Does Joseph Kony deserve to be sanctioned? Absolutely. Do we think that will actually change his behavior? I think we need 

to be honest about that. The beauty of corruption is that it actually is—it links with the 

nature of the tool, right? The nature of a sanctions tool is, it limits people’s ability to move 

money. And what is corruption but money, right? It’s the ability to get assets. And so it 

34

really links, whereas human rights is often a lot more involved to it. So it’s a lot more 

challenging. That doesn’t mean you shouldn’t do it. I just think that we can—I think that 

the impact might be less in one versus the other. 

Mr. DUBOWITZ. Can I say something really quickly about that? I think one of the mistakes that certainly we made over the past 15 years in focusing on Iran and focusing on 

the human rights issues was not doing enough to persuade the U.S. Government to link 

the human rights abuse, the malign conduct, to an economic penalty, because I think 

Adam’s exactly right. I mean, when you name and shame Sadeq Larijani, which I thought 

was a very important political sanction that the U.S. Government just did recently, something that previous administrations had also considered, I think there’s political potency 

and there’s symbolic potency. 

But, boy, wouldn’t it be useful if we could attach that designation to an economic 

impact that would really actually inflict economic harm on the regime that he is part of? 

And we can talk about how to design the appropriate economic penalties. But it’s not 

enough just to name and shame. It’s got to have economic pain attached to it. And I don’t 

believe our human rights sanctions—and I may be wrong—and other sanctions programs, 

but I don’t believe they actually have that nexus, an economic nexus. I personally think 

they should. 

Mr. MASSARO. Ilya, please. 

QUESTIONER. Very quickly. Ilya Zaslavskiy, Free Russia Foundation. 

Does the panel have any suggestions why so far any sanctions list or any public 

shaming of propaganda journalists who cover specifically corruption and do disinformation 

on corruption and Global Magnitsky Act, like Nemtsov list, like other lists. Just some of 

these cases are egregious. Vladimir Solovyov, one of the main propaganda people, apparently has a green card. Recently, a troll-farm family apparently got hired by Facebook and 

got visa. So should we have a shaming list for them? Should we put them under sanctions? And how can we do that? 

Mr. WHITE. From a targeted-financial-sanctions viewpoint, I think there is a hesitancy to sanction an individual for behavior or activity that would be constitutionally protected in the United States; so freedom of speech, just like it’s problematic when people 

send in information about someone being associated with someone that is quote/unquote, 

‘‘bad.’’ I think it’s difficult from kind of a sanctions perspective, purely based on speech. 

Now, if there is accompanying activity—for example, if it’s a communications or 

information minister of a country, in addition to saying heinous, inciteful things, he or 

she is also saying, by the way, here’s where you go to pick up the gasoline to light these 

houses on fire, or in some way kind of demonstrating a proactive, you know, actually 

actively working to take action, that’s a different story. But just based on kind of speech 

that is offensive to kind of the average person, it’s quite difficult. 

Mr. MASSARO. Brad, you wanted to say something? 

Mr. BROOKS-RUBIN. Yes. I mean, just two quick words maybe on that. I think the 

OFAC counsel has done a good job with Josh on advising on that. I think it’s hard. But 

there are examples. In the Cote d’Ivoire sanctions, for example, there were people who 

were designated. And among their act were these kinds of issues. But there is always the 

struggle with the First Amendment analysis and how we need to implement that here. 

I wanted to come back a little bit on the last point, which is certainly on the countries 

we work on—South Sudan, Congo, Central African Republic, which are traditionally 

35

looked at as human rights issues or through the human rights lens—I think what we’ve 

seen in our analysis over the years and why this became such an important tool for us 

is that the thought of them as human rights sanctions was simply because people weren’t 

looking at the financial aspect of these. And when we’re naming targets who don’t have 

assets, I think it’s fair to say those may not be the right targets. 

But I think what we see and with the Global Magnitsky target list is there is an 

increasing intersection of those worlds. And in some ways the distinction between a 

human rights target and a corruption target may, in some ways, almost become a false 

distinction over time, that those are usually linked. And if they are not, then maybe this 

isn’t the right tool. 

And, you know, last, on the Azerbaijan question at some level—I mean, we work on 

countries all the time where the question is, do sanctions work, right? There are designations and, you know, the crisis continues. And I think it’s a danger here and it’s a danger 

in any sanctions program to say that sanctions change behavior. 

My own personal view is sanctions don’t change behavior. Sanctions can be leverage 

to processes that can change behavior. And I think the Iran example is—and the persistence and the need that there is for there to be continued effort year after year, no matter 

how impatient you are, to find new ways to engage is because sanctions themselves 

almost won’t—it’s hard to say it can never be a black-and-white straight line to a changed 

behavior, but they can create the leverage that allows processes to change behavior. 

And where those processes don’t exist, then that’s—it’s going to take a lot to get 

there. And I think it’s—it can be trouble to say, well, because we haven’t named the president or we haven’t named this person at the top of the system, nothing will ever change. 

This is all part of a very long process and we’ll need to be here in 5 and 10 years to really 

assess whether or not this is an effective tool. 

Mr. MASSARO. Okay, thank you so much. 

Kyle. 

Mr. PARKER. Two final questions for Josh and Adam. 

For Josh, I know that a visa ban doesn’t equal an SDN designation. Does an SDN 

designation effectively equal a visa ban? And the other question is, can you give us any 

ballpark figures on the size of such an evidentiary memo? Is it five pages? Is it 100 pages, 

25 pages? And some rough guidelines. Is most of it classified? Is it law enforcement sensitive? Is it—I’m sure highly—the answer is it depends on a lot. But any sort of ballpark 

figures would be interesting. 

And for Adam—a little bit sort of off topic, but very much close to the heart of the 

Helsinki Commission’s work. First of all, thank you and Ambassador Fried for keeping 

the ban together on Russia sanctions. I’d be very interested in your take on what the disappearance of that particular office at the Department of State means. It looks to me like 

it strengthens OFAC’s hand in the process. I’m wondering your view. 

And also, on Brexit and London, we’ve heard a lot that with Brexit that London has 

effectively been the EU’s OFAC, if you will. What is—and we look at how there’s only 

one skiff in Luxembourg. What does this mean for our broader programs? 

Thank you very much. 

Mr. WHITE. So on the visa-ban question, I think I can say generally yes. The State 

Department looks to OFAC sanctions to consider the merits of whether or not someone 

36

should have their visa revoked. But it’s a completely separate process. And, sorry, I don’t 

think I can comment further on that process of theirs. 

In terms of the length of an evidentiary, we want to build a robust case. So the 

standard is an administrative one. But we also want to have a very strong case where, 

if we were to be litigated, we would win without any problem. And so, while we try to 

typically have at least our attorneys for kind of ease of review often encourage the OFAC 

or my OFAC colleagues to keep it kind of as concise as possible, usually there’s a multitude of sources. So, depending on how complex the case is, how complex the activity is, 

I think some of them are fairly sizable. And then, again, it depends on the target as to 

whether it’s primarily classified information or open source. 

I think what my experience has been with Global Magnitsky, it’s just because of the 

nature of the information, a lot of what we’ve seen is actually unclassified, open-source 

information from a U.N. panel of experts, from NGOs, from news reporting. And that’s 

why the work of NGOs is so critical to this effort, because, as Adam referred to earlier, 

there are not a tremendous amount of resources devoted to the issues of corruption and 

human rights when you think of kind of other national-security priorities. 

Mr. PARKER. But it’s not law enforcement sensitive. 

Mr. WHITE. They can be. 

Mr. PARKER. Oh, they can be. Okay. 

Mr. WHITE. Yes. So, working with law enforcement, both foreign and domestic as 

well. 

Mr. SMITH. To answer very quickly, so on the SDN versus visa ban, I think it actually 

works the opposite, because if you’re an SDN and you don’t have a visa ban, you can actually come to the United States because of something called the Berman Amendment, 

which is an exemption to IEEPA. Under IEEPA, which is the law that gives you the 

power to do SDN——

Mr. PARKER. [Inaudible]—academics? 

Mr. SMITH. Well, no. It basically says that any travel-related transactions are 

exempted from sanctions. 

Mr. PARKER. Okay. Okay. 

Mr. SMITH. So an SDN can actually come to the United States, enjoy his or her life 

here, and then go about his or her merry way. There are some exceptions to that, but 

as a general rule, the Berman Amendment is very, very broad. So it actually—if you don’t 

have a visa ban, there’s a bit of an issue, I would argue. 

Fried’s office and the disappearance thereof is an interesting—I mean, it’s hard to 

read much into it, to be perfectly honest, because what happened is there is a sanctions 

office that still exists. It hasn’t moved. It’s in the Bureau of Economic and Business 

Affairs, State Department. There’s a deputy assistant secretary there that used to basically do that role, which—then Fried sort of took parts of it, essentially. 

The idea behind Fried’s office, as I read it, was a bureaucratic one, because what happened—what used to happen is that, at the deputies’ committee meetings at the White 

House, you’d have a deputy from Treasury, someone like the undersecretary, usually the 

undersecretary for TFI, who basically spends his or her entire day thinking about sanctions. And in a bureaucratic sort of way, they would then be competing or arguing with 

his or her counterpart at the State Department, who was P, the political affairs director, 

who thought about everything other than sanctions. And so there was a bureaucratic sort 

37

of—Treasury would always win those debates, because there just wasn’t a senior-enough 

person on the State Department side who could sort of compete. 

And so the idea—at least partly the idea—is to put someone like Dan Fried, who’s 

a career ambassador, a very senior person, as sort of a counterpoint to someone who’s also 

very, very senior in the Treasury Department. That was the idea behind it, at least one 

of the ideas. And so the removal of Fried’s office—I think you’re right—it does sort of 

embolden Treasury to the role it had prior to the eventuality of Fried’s office. But I’m not 

sure it really changes anything. I mean, I have understood that Treasury—and you would 

know better than I, Josh—has sort of taken the mantle up, and because there’s a bit of 

a—a lacuna, shall we say, has moved in in ways that perhaps they wouldn’t have otherwise taken advantage of that. 

Mr. WHITE. No comment. 

Mr. SMITH. And I don’t blame them at all. [Laughs.] 

On the Brexit issue, very, very fascinating issue, because you’re 100 percent right; 

not just that London was OFAC. And they have their own OFAC now, called the Office 

of Financial Sanctions Implementation (OFSI). London was our OFAC, right. So what we 

used to do, especially in developing multilateral measures, is we would talk to the Brits 

very, very honestly. They would often see our way. They would then carry our water, 

effectively, into discussions with the rest of the 27. 

And so there’s a real question that, even before March of next year, when the rest 

of the 27 are just angry at London, shall we say, the ability for the Brits to sort of carry 

our water, especially on sensitive issues—be it sort of the continuation of Russian sanctions, where there’s a lot of, at least on the eastern flank of the EU, some questions, or 

other things; perhaps if the Iran deal sort of unravels, getting everyone on board in that 

regard—it’s going to be very challenging. 

And I think that with Brexit we will have a partner in London, there’s no question. 

And if London remains sort of the financial center that it is, that’s great, because having 

London and New York sort of offline for those who we sanction, that’s great. But if London 

gives way and it becomes a Frankfurt situation or Tokyo or—[inaudible]—or Hong Kong 

or Beijing, and it sort of gives rise to multipolarity with respect to the way financial flows 

go, that’s a bit of a disaster for our sanctions and then for the multilaterization effort as 

well. 

Mr. MASSARO. Well, thank you all so very much. We’re a little over 15 minutes over 

time here. Thank you all for sticking around for the event. Thank you so much to our 

great panel. And we’ll see you all next time. [Applause.] 

[Whereupon, at 5:17 p.m., the briefing ended.] 

(39)

1 This article first appeared on Just Security.

APPENDIX

TRUMP’S SURREPTITIOUS MOVE AGAINST FOREIGN HUMAN RIGHTS ABUSERS 1

BY ROB BERSCHINSKI ON 1/10/18 AT 1:16 PM

In meetings I’ve had over the past year with the well meaning and generally beleaguered Trump administration officials responsible for aspects of the government’s human 

rights policy, a frequent refrain is that this administration isn’t receiving enough credit 

for the positive steps it has taken with respect to promoting human rights and the rule 

of law (and, to be fair, it has taken a few). 

At a certain level—and I say this with no lack of empathy, given the situation in 

which these officials find themselves—their lament is difficult to countenance given the 

many ways in which their boss’s manifest authoritarian tendencies, disdain for judicial 

independence and a free press, and attacks on women and religious and ethnic minorities 

are alienating allies and emboldening human rights abusers and kleptocrats around the 

world. 

It therefore came as a surprise on multiple levels, when, in the week just before 

Christmas—a time generally reserved for burying news, not making it—an administration 

starved of positive stories to trumpet when it comes to America’s reputation abroad 

inexplicably decided to roll out what is, safe to say, the most positive, broad-based human 

rights-related measure of its tenure. 

That’s a shame, because what the Trump administration did is a big deal. In a good 

way. 

To briefly recap: with much of official Washington already checked out for the holidays, on Dec. 21, the Trump administration released its initial tranche of sanctions designations under a new executive order tied to the Global Magnitsky Human Rights 

Accountability Act. 

The law, which Congress passed in 2016, provides the executive branch with 

authority to administer targeted financial and visa-related sanctions against foreign 

individuals and entities if they are found to have committed human rights violations or 

engaged in corrupt practices. 

While news outlets, human rights organizations (including my own), and key congressional champions of the Global Magnitsky Act, and its Russia-specific predecessor, put out 

articles and Statements focused on the 15 individuals and 37 entities sanctioned by the 

U.S. Government, we all likely missed the real story, which centers not on the designations, but on the executive order that accompanied them. 

40

That order (number 13818, for those keeping track at home), entitled ‘‘Blocking the 

Property of Persons Involved in Serious Human Rights Abuse or Corruption,’’ holds great 

potential as a tool to advance human rights policy. 

But before delving into why it could prove to be quite powerful, it’s worth spending 

some time on a few of the specific 52 sanctions designations, which provide insight into 

the Trump administration’s policies and the inevitable bureaucratic battles that go on 

behind the scenes. 

So, Who Was Sanctioned? 

First, the fact that the Trump administration designated any human rights abusers 

and corrupt actors under an executive order tied to the Global Magnitsky Act—which, we 

should remember, is an elective authority—is a significant achievement. 

I say this not because of President Donald Trump’s clear disdain for nearly all of the 

precepts underpinning human rights as a concept, or because of the original Magnitsky 

Act’s cameo role in events currently under investigation by Special Counsel Robert 

Mueller. 

Instead, more prosaically, it’s significant because it’s likely that many of the sanctions designations unveiled in December were opposed by several of the State Department’s regional bureaus, which tend to be skeptical of any actions that involve increasing 

friction in a bilateral diplomatic relationship, even when dealing with foreign governments 

with truly odious records. 

In light of this perennial bureaucratic dynamic, it’s worth highlighting that introducing 13 primary sanctions designations on individuals, and an additional 39 secondary 

designations (on two individuals and 37 entities), in the annex to the new executive order 

is a pretty big deal. 

Officials within the State Department’s bureaus of Economic and Business Affairs, 

Democracy, Human Rights and Labor, and International Narcotics and Law Enforcement 

each deserve credit for the action, as does the peculiarly named directorate for International Organizations and Alliances at the National Security Council, which coordinates 

multilateral and human rights policy. 

The same goes for officials within the Treasury Department’s Office of Foreign Assets 

Control (OFAC), and particularly for Treasury Under Secretary for Terrorism and Financial Intelligence (and acting Deputy Secretary) Sigal Mandelker, who appears to have led 

the charge on Global Magnitsky within the administration. 

Raw numbers of individuals and entities designated, of course, are a poor metric for 

impact. That said, those that feel that the United States can—and should—walk and chew 

gum at the same time concerning our relations with repressive and/or corrupt foreign 

governments notched a few meaningful victories. 

The administration’s decision to sanction Russian Prosecutor General Yuri Chaika’s 

son Artem, particularly when coupled with the announcement of sanctions levied against 

Chechen warlord Ramzan Kadyrov and a key lieutenant on Dec. 20 under the Russia-specific version of the Magnitsky law, sent a strong signal to the Kremlin that President 

Vladimir Putin’s cronies no longer enjoy limitless impunity. 

Other noteworthy designations under Global Magnitsky included Dan Gertler, an 

Israeli billionaire alleged to have used his relationship with Congolese president Joseph 

Kabila to net billions of dollars in extractives-related gains; Benjamin Bol Mel, a business 

magnate alleged to have profited from his ties to South Sudanese President Salva Kiir; 

41

and Gao Yan, a Chinese security official allegedly linked to the death in custody of human 

rights activist Cao Shunli. 

In terms of political and financial impact, each of these designations is likely to hit 

home with its intended target. 

Perhaps most importantly, particularly when viewed from the perspective of the U.S. 

government’s ability to employ the Global Magnitsky Act to counter human rights abuses 

in near-real time, was the government’s decision to sanction Burmese military official 

Maung Maung Soe. 

As the former chief of the Burmese Army’s Western command, Soe is alleged to have 

served as a key overseer of the atrocities recently committed against Rakhine State’s 

Rohingya population. 

His designation reflects the use of Magnitsky sanctions at their most sophisticated, 

both in terms of responsiveness to real world events and in using the authority’s scalpellike precision to isolate individuals or factions within a larger governmental structure. 

Last on the positive side of the ledger, the government’s initial designations demonstrated an apparent, if also circumscribed, responsiveness to recommendations from 

NGO’s and Members of Congress. 

In a clear signal that they wanted to involve actors beyond the executive branch in 

the process of researching would-be sanctions designations, Global Magnitsky’s authors 

wrote into the law that ‘‘the President shall consider information provided jointly by the 

chairperson and ranking member of each of the appropriate congressional committees; and 

credible information obtained by other countries and nongovernmental organizations that 

monitor violations of human rights.’’

To its credit, the Trump administration seems to have taken this instruction to heart. 

The sanctions applied against Soe, Chaika, Gertler, Gao, and Bol Mel, as well as Nicaraguan Supreme Electoral Council President Roberto Jose Rivas Reyes, each reflect either 

explicit recommendations or more general concerns raised by watchdog groups and/or 

Members of Congress. 

This development is likely to strike an appropriate amount of fear into human rights 

violators and corrupt actors around the world, just as the Act’s authors intended.

Glaring Omissions

To be sure, in many additional cases, the administration clearly chose not to act on 

information provided by outside groups and elected officials. Yet in so doing, it nevertheless seems to have left the door open to future action, as government officials have 

indicated that they continue to investigate information provided by external sources, and 

intend to use Global Magnitsky on a continuing basis. 

To the degree that these goals are operationalized, they are likely to be applauded 

by the Act’s champions, and leave criminals and human rights abusers on edge. 

Notwithstanding these plaudits, the administration’s initial list of sanctions designees still left much to be desired. While the number of designations mentioned earlier 

is sizable when compared to most initial EO annexes that derive their authority from the 

International Emergency Economic Powers Act (50 U.S.C 1701), they are clearly miniscule 

when viewed from the perspective of worldwide human rights violations and grand corruption. 

42

In particular, the blanket non-inclusion of individuals and entities from the Middle 

East (Gertler aside) in the EO annex is glaring, given the massive scope of human rights 

violations and corruption endemic in the region. The Trump administration appears to 

have declined to act on credible information provided by outside groups concerning abuses 

in Saudi Arabia, Bahrain, and Egypt, among other countries. 

This decision constituted a particularly significant letdown for human rights activists 

in Egypt. Notwithstanding Trump’s belief that Egyptian President Abdel Fattah el-Sisi 

has ‘‘done a tremendous job under trying circumstance (sic),’’ Sisi’s repressive 

counterterrorism tactics and attacks on civil society are leading to a well-documented 

cycle of radicalization and violence that implicate American security interests. 

In an environment in which political imprisonment and torture are rife, and terror 

attacks are increasing, the fact that the U.S. Government elected to ignore credible 

information submitted by human rights NGO’s—including first-hand testimony from torture survivors—can’t help but be seen as a major missed opportunity. 

That such a decision occurred shortly after the administration elected to withhold a 

significant portion of military aid earmarked for Egypt on human rights grounds makes 

the decision even more of a head-scratcher. 

A similar critique can be levied against the government for its decision not to impose 

a single human rights-related designation in Central Asia, home to several of the most 

repressive governments on earth, and any number of U.S. security partners whose governments are engaged in large-scale human rights violations, from the Philippines to Turkey 

to Ethiopia. 

While perhaps not entirely surprising, the decision not to impose sanctions against 

individuals from these countries leaves the U.S. Government open to credible charges that 

it is engaging in selective application of human rights standards. 

This dynamic, if not arrested, is ultimately a grave threat to American legitimacy 

when speaking about human rights, and our (damaged, but still intact) reputation as a 

credible proponent of the notion that all States should adhere to the commitments we’ve 

made to protect fundamental freedoms. 

One need only reopen one’s dusty copy of Jeane Kirkpatrick’s ‘‘Dictatorships and 

Double Standards’’ to recognize that the idea that the United States should view human 

rights policy as a cudgel with which to beat our enemies is nothing particularly new. 

Nevertheless, the concept seems to be experiencing something of an intellectual renaissance at present. 

For all of its potential as a groundbreaking means to protect victims of horrific 

violence and administer some form of accountability for corruption, the Global Magnitsky 

Act contains the seeds of its own destruction if it is wielded in a manner that erodes its 

own credibility. On this front, it remains to be seen whether the tool evolves into what 

was envisioned by its proponents, or into something more cynical. 

Which brings me to Executive Order 13818.

Loosening the Language—a Potential Game Changer?

Under the International Emergency Economic Powers Act (IEEPA), Congress authorized the president to exercise certain emergency powers if s/he declares a particular situation a national emergency due to an ‘‘unusual and extraordinary threat . . . to the national 

security, foreign policy, or economy of the United States.’’

43

Making a national emergency declaration is thus a statutory requirement for the 

executive branch to announce most sanctions programs implemented by Treasury’s OFAC. 

At times, the legal requirement to declare a situation an ‘‘unusual and extraordinary 

threat to the national security of the United States’’ in order to levy sanctions on human 

rights grounds has provided human rights violators with ample opportunity to turn the 

United States’ words against it. 

The most striking example of this dynamic occurred in early 2015, when, in order 

to sanction seven Venezuelan government officials for human rights violations, the Obama 

Administration declared the country an ‘‘extraordinary threat to U.S. national security.’’

While any sanctions announcements were sure to elicit a furious response from the 

government of President Nicola ́s Maduro, Venezuela’s leaders announced that the U.S. 

declaration signaled an intention to attack their country, and used it to further undercut 

Venezuela’s political opposition and human rights community. 

The hard-won lesson of this episode in part motivated Congress to grant new authorities under the Global Magnitsky Act. By granting global sanctions authority independent 

from IEEPA, the Global Magnitsky Act provides the executive branch with the ability to 

levy sanctions against certain individuals in any country for human rights violations or 

corruption without having to resort to establishing a country-wide national emergency 

declaration. 

Executive Order 13818 takes this approach one step further, and draws upon the 

authority of both the Global Magnitsky Act and IEEPA, as well as the Immigration and 

Nationality Act of 1952, to establish an extremely flexible human rights and anti-corruption accountability tool with global reach. 

The executive order’s ambition is articulated in its preamble, in which the president 

finds that ‘‘the prevalence and severity of human rights abuse and corruption.have 

reached such scope and gravity that they threaten the stability of international political 

and economic systems.’’

The president goes on to say that he has therefore determined that ‘‘serious human 

rights abuse and corruption around the world constitute an unusual and extraordinary 

threat to the national security, foreign policy, and economy of the United States,’’ and 

thereby constitute a national emergency. 

Putting aside the absurdity that these Wilsonian-like words are supposed to reflect 

Trump’s actual views, they’re something to behold. They also seem clearly at odds with 

the administration’s ‘‘America First’’ foreign policy, as recently articulated in its National 

Security Strategy (NSS), which the White House released 3 days prior to the EO. 

Instead of reflecting his NSS, Trump’s preamble seems to most closely resemble the 

text of President Barack Obama’s August 4, 2011 directive on mass atrocities, which both 

mandated the creation of an interagency Atrocities Prevention Board and declared that 

‘‘Preventing mass atrocities and genocide is a core national security interest and a core 

moral responsibility of the United States.’’

Obama-era proponents of a globe-spanning anti-atrocities sanctions regime labored 

unsuccessfully for several years to craft a universal sanctions authority similar to, and 

possibly less expansive than, this new Trump executive order. 

In internal policy discussions, arguments made against such an executive order 

included that the tool would be used too frequently, thereby taxing internal resources, 

44

and, somewhat contradictorily, that it might never be used at all, thereby disappointing 

the human rights community. 

Whatever the concerns of decisionmakers within the last administration, they have 

clearly been laid aside by Treasury Secretary Steven Mnuchin and other senior Trump 

administration officials. These policymakers appear to have crafted EO 13818 in a manner 

that provides significant flexibility, which is lacking under the Global Magnitsky Act. 

For example, the Global Magnitsky Act requires that the crime in question constitute 

a ‘‘gross violation of internationally recognized human rights,’’ or a ‘‘GVHR.’’ That term 

is codified at 22 USC § 2304(d)(1) as including:

Torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention 

without charges and trial, causing the disappearance of persons by the abduction and clandestine detention of those persons, and other flagrant denial of the right to life, liberty, or 

the security of person.

Given the exacting evidentiary requirements involved in meeting this standard, 

government lawyers have consistently appeared more inclined to approve sanctions cases 

dealing with instances of extra-judicial killing, torture, and rape than they have been 

when cases involve the denial of liberty inherent in a politically motivated prosecution 

and prison sentence. 

When I’m approached by activists from a country whose government routinely 

imprisons journalists, members of the political opposition, or human rights defenders, 

they’re frequently surprised to hear that the Global Magnitsky Act likely offers them no 

remedy. 

Similarly, serious crimes otherwise deserving of U.S. scrutiny are frequently precluded for consideration by the Act’s requirement that a victim be either a) someone 

working ‘‘to expose illegal activity carried out by government officials,’’ or b) someone who 

seeks to ‘‘obtain, exercise, defend, or promote internationally recognized human rights and 

freedoms.’’

These ‘‘whistleblower’’ and ‘‘human rights activist’’ provisions have generally excluded 

cases that a casual observer might feel were otherwise ripe for sanctions. 

Consider, for instance, the widespread extra-judicial killing of drug users by government security forces in the Philippines, or the grievous crimes perpetrated against 

Burma’s Rohingya population. In the latter case, while one could argue that the Rohingya 

are targeted by Burmese security forces expressly because of their status as a religious 

and ethnic minority group, it would not strike me as far-fetched to hear a U.S. Government lawyer argue that the law lacked applicability, given that few, if any, of the individuals targeted were actively working to obtain or exercise their rights. 

Executive Order 13818 addresses both of these limitations, among others. As stated 

in both its preamble and in section 1(ii)(A), the GVHR language of the Magnitsky Act has 

been replaced with a standard defined as ‘‘serious human rights abuse.’’

While it remains to be seen how the government’s lawyers have or will interpret this 

standard, the language of the EO is clearly more permissive. Additionally, the change 

from ‘‘violation’’ to ‘‘abuse’’ appears to broaden the scope of permissible sanctions designations beyond state actors to conceivably anyone found to have committed a covered action. 

The EO simply omits the Magnitsky Acts’ human rights activist provision. Rather 

than needing to show that a covered crime was perpetrated against someone working to 

‘‘obtain, exercise, defend, or promote’’ human rights, the order merely states that the U.S. 

45

Government can sanction any foreign person found ‘‘to be responsible for or complicit in, 

or to have directly or indirectly engaged in, serious human rights abuse.’’ This omission 

decidedly widens the regime’s potential applicability. Rodrigo Duterte, you’ve been 

warned. 

And that’s not all. Similar to its loosening of language with respect to human rights 

abuses, EO 13818 substitutes ‘‘corruption’’ for the Global Magnitsky Act’s ‘‘acts of significant corruption’’ when describing the second major category of offenses covered under its 

sanctions authority. 

Here, too, one can reasonably expect that the change in language was intended to 

allow the government more room for maneuver in terms of its future designations. 

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 this change could be quite significant. The example of Beijing 

Public Security Bureau official Gao Yan is illustrative. Under section 1(ii)(C), Gao’s designation effectively opens all officials of the Beijing Public Security Bureau, or at least 

the Chaoyan Branch subcomponent in which he worked, to the potential of sanction, given 

that the U.S. Government has established a relationship between the bureau and the 

death in custody of Cao Shunli. The potential for secondary sanctions based on such 

status is seemingly vast. 

To be sure, none of the provisions written into EO 13818 will automatically result 

in additional, sanctions on human rights abusers and corrupt actors in the future. 

At the end of the day, as with the Global Magnitsky Act, the Trump administration’s 

executive order provides the U.S. Government with a tool it can elect to use, or not, as 

it sees fit. How it does so is an important question moving forward. 

46

A sanctions regime as broadly applicable as EO 13818 should be managed both effectively and appropriately, and used neither capriciously nor arbitrarily. On this point, time 

will tell. 

In the meantime, what we can say with certainty is that an administration unlikely 

to be remembered for its positive impact on human rights promotion or the global fight 

against corruption—to say the least—just formalized a policy tool that supersedes and 

improves upon existing law dealing with these issues. 

That it did so in a manner that resulted in minimal attention is puzzling. But we 

should take what we can get, and offer credit where it is due.

Rob Berschinski is Senior Vice President for Policy and Human Rights First and Former 

Deputy Assistant Secretary of State for Democracy, Human Rights, and Labor under the 

Obama Administration.

47

HIT AYATOLLAH KHAMENEI IN HIS POCKETBOOK

Supporters brag about his modest lifestyle, but Iran’s ruler runs a billion-dollar corporate 

conglomerate.

BY MARK DUBOWITZ AND SAEED GHASSEMINEJAD

The Trump administration already has offered rhetorical support to Iran’s 

antigovernment protesters. Now, nearly a month after the demonstrations began, how can 

the U.S. provide material help? Follow the money. 

Supreme Leader Ayatollah Ali Khamenei’s supporters brag about his modest lifestyle. 

They fail to mention that he runs a multibillion-dollar corporate conglomerate to fund his 

political patronage networks. His three most valuable possessions are the Execution of 

Imam Khomeini’s Order, or EIKO; the Mostazafan Foundation; and the Astan Quds 

Razavi. These businesses have an interest in nearly every Iranian industry and are worth 

approximately $200 billion, according to our estimates. 

The entities acquired a considerable share of their assets from the systematic confiscation of private property that followed the Islamic Revolution of 1979. They don’t pay 

taxes, and only the supreme leader’s office can audit them. They use their political connections to outmaneuver their rivals and to win lucrative government contracts. It is no 

wonder so many Iranians, deprived of basic necessities, resent their leaders. 

A 2013 investigation by Reuters estimated that EIKO was worth around $95 billion, 

with more than half of its assets in real estate. Established in the late 1980s, its three 

main holdings are the Tadbir Group, Rey Group and Barkat Foundation. Dozens of 

subsidiaries and front companies make it hard to ascertain the full extent of the network. 

Ayatollah Ruhollah Khomeini, Mr. Khamenei’s predecessor, created the Mostazafan 

Foundation after the Islamic Revolution. Designed to seize and manage assets owned by 

the deposed royal family and its associates, the foundation now controls hundreds of 

companies. A few months ago it published annual financial statements that declared its 

assets to be around $16 billion—likely a deliberate understatement. 

The third entity is Astan Quds Razavi, whose business arm is the Razavi Economic 

Organization. Astan has tight control over the economy of three southern provinces of 

Iran, where it owns companies in the lucrative energy and agriculture industries. Its realestate portfolio is valued at $20 billion, according to BBC Persian, and it owns nearly half 

of the land in Mashhad, where the recent protests began. 

The U.S. Treasury in 2013 enacted sanctions against EIKO and 37 subsidiaries. A 

Treasury press release said the entity’s goal is ‘‘to generate and control massive, off-thebooks investments, shielded from the view of the Iranian people and international regulators.’’ The Obama administration lifted the sanctions as part of the 2015 nuclear deal. 

Never mind that their original designation had nothing to do with Iran’s nuclear program. 

Companies owned or controlled by the state, including the Khamenei conglomerate 

and foundations, were the biggest beneficiaries of the nuclear accord. Since the deal was 

struck in July 2015, nearly 110 business and investment deals have been signed with Iranian companies. According to Reuters, 90 of those entities are owned or controlled by the 

state. 

48

A January 2017 investigation by Reuters found that companies controlled by EIKO 

signed at least five contracts with foreign firms. Those include a $10 billion agreement 

to build oil refineries with South Korea’s Daewoo Engineering and Construction Co. and 

Hyundai Engineering and Construction. The Spanish and Danish pharmaceutical companies Chemo Group and Novo Nordisk have also signed deals to work with EIKO. 

The Mostazafan Foundation and Astan Quds Razavi have contracts with foreign 

companies too. Bon Rail, owned by the Mostazafan Foundation, signed a memorandum of 

understanding with the German firm Deutsche Bahn, to improve its railroad services. The 

foundation is also involved in a $1.5 billion deal with Daewoo. 

While these entities are far from transparent, the U.S. knows enough to target them 

with sanctions. The Foundation for Defense of Democracies has identified 146 Khameneiowned companies and 144 executives and board members associated with these companies. The Trump administration can use the Global Magnitsky Human Rights Accountability Act of 2016 to isolate the Khamenei business empire, freeze its assets, and penalize 

international companies that enrich the Iranian regime. 

With President Trump and the Iranian protesters on the same side against the 

supreme leader and his criminal regime, now is the time to strike. 

Mr. Dubowitz is chief executive of the Foundation for Defense of Democracies, where 

Mr. Ghasseminejad is a research fellow.

This op-ed appeared in The Wall Street Journal, January 23, 2018, print edition.

49

SLIDES PRESENTED BY BILL BROWDER AT THE BRIEFING


29394.001
50


29394.002
51


29394.003
52


29394.004
53


29394.005
54


29394.006
55


29394.007
56


29394.008
57


29394.009
58


29394.010
59


29394.011
60


29394.012
61


29394.013
62

Æ


29394.014
This is an official publication of the Commission on 

Security and Cooperation in Europe.

★★★

This publication is intended to document 

developments and trends in participating 

States of the Organization for Security 

and Cooperation in Europe (OSCE).

★★★

All Commission publications may be freely reproduced, 

in any form, with appropriate credit. The Commission 

encourages the widest possible dissemination of its 

publications.

★★★

www.csce.gov @HelsinkiComm

The Commission’s Web site provides access 

to the latest press releases and reports, 

as well as hearings and briefings. Using the 

Commission’s electronic subscription service, readers are 

able to receive press releases, articles, and other 

materials by topic or countries of particular interest.

Please subscribe today.