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Congress Enacts Sanctions Legislation Targeting Russia

Published online by Cambridge University Press:  13 February 2018

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Extract

In July 2017, Congress passed the Countering America's Adversaries Through Sanctions Act. The legislation—which enjoyed nearly unanimous legislative support—contained sanctions targeting Russia, North Korea, and Iran. Title II of the Act—titled separately as the Countering Russian Influence in Europe and Eurasia Act of 2017 (Countering Russian Influence Act)—entrenched and extended U.S. sanctions against Russia for violating Ukraine's territorial sovereignty and interfering with the U.S. presidential election. Title II's key provisions codified existing sanctions against Russia; imposed new sanctions against Russia; and restricted the president's authority to modify or eliminate these sanctions without congressional approval. Despite voicing constitutional objections to the legislation, President Trump signed the bill into law.

Type
General International and U.S. Foreign Relations Law
Information
American Journal of International Law , Volume 111 , Issue 4 , October 2017 , pp. 1015 - 1023
Copyright
Copyright © 2018 by The American Society of International Law 

In July 2017, Congress passed the Countering America's Adversaries Through Sanctions Act.Footnote 1 The legislation—which enjoyed nearly unanimous legislative supportFootnote 2 —contained sanctions targeting Russia, North Korea, and Iran.Footnote 3 Title II of the Act—titled separately as the Countering Russian Influence in Europe and Eurasia Act of 2017 (Countering Russian Influence Act)—entrenched and extended U.S. sanctions against Russia for violating Ukraine's territorial sovereignty and interfering with the U.S. presidential election.Footnote 4 Title II's key provisions codified existing sanctions against Russia;Footnote 5 imposed new sanctions against Russia;Footnote 6 and restricted the president's authority to modify or eliminate these sanctions without congressional approval.Footnote 7 Despite voicing constitutional objections to the legislation, President Trump signed the bill into law.Footnote 8

In 2014, President Obama had imposed sanctions on Russia in response to its purported annexation of Ukraine's Crimean Peninsula.Footnote 9 Russia, acting in contravention of international law, used force to seize and occupy the so-called Republic of Crimea.Footnote 10 With Russia's help, Ukrainians living in the Crimean Peninsula then approved a ballot referendum—in violation of the Ukrainian Constitution—declaring the region's intent to be integrated into the Russian Federation.Footnote 11 In response to these developments, President Obama issued four executive ordersFootnote 12 designed to “send a strong message to the Russian government that there are consequences for their actions that threaten the sovereignty and territorial integrity of Ukraine.”Footnote 13 These executive orders authorized the imposition of sanctions pursuant to the International Emergency Economic Powers Act, the National Emergencies Act, and the Immigration and Nationality Act of 1952.Footnote 14 Additionally, the orders put in place travel restrictions on a number of specified individuals who either “asserted governmental authority over any part or region of Ukraine without the authorization of the Government of Ukraine”Footnote 15 or were

responsible for or complicit in [actions or policies] … that undermine democratic processes or institutions in Ukraine … threaten the peace, security, stability, sovereignty, or territorial integrity of Ukraine; or … misappropriat[e] … state assets of Ukraine or of an economically significant entity of Ukraine.Footnote 16

In December 2016, President Obama imposed additional sanctions on Russia in retaliation for its interference with the U.S. presidential election.Footnote 17 Shortly before the general election the preceding month, the Department of Homeland Security and the Office of the Director of National Intelligence published an outline of the case for their conclusion that Russia had engaged in cyberattacks with the intent to influence the presidential election.Footnote 18 These findings, along with corroborating evidence from other intelligence agencies, prompted President Obama to impose additional sanctions via executive order against five Russian entities and four Russian individuals—all of whom had, according to President Obama, engaged in, or provided material support to persons or entities engaged in, “tampering, altering, or causing a misappropriation of information with the purpose or effect of interfering with the 2016 U.S. election processes.”Footnote 19

Since President Trump took office in January, his administration's stance on Russian sanctions has seemed to evolve. White House Economic Adviser Gary Cohn remarked in late May that President Trump was “looking at” the future of the Russian sanctions, and that the administration currently “[did not] have a position” on whether they should stay.Footnote 20 But a few days later, Cohn said the administration would “not lower[] our sanctions on Russia”Footnote 21 and, “[i]f anything, we would probably look to get tougher on Russia.”Footnote 22 As Congress deliberated over legislative proposals, White House Deputy Press Secretary Sarah Huckabee Sanders affirmed that the administration “believe[s] the existing executive branch sanctions regime is the best tool for compelling Russia to fulfill its commitments.”Footnote 23

At least partly in response to concern that the Trump Administration might remove some of the Obama sanctions, Congress passed the Countering Russian Influence Act. During floor debate on the proposed legislation, Senator Cardin remarked:

The legislation we are about to vote on will give the United States the strongest possible hand to stand up against the aggression of Russia. Russia attacked us and our democratic institutions; Russia invaded the sovereignty of other countries, including Ukraine and Georgia … .

…

Mandatory sanctions are included in this legislation with regard to the energy sector, the financial sector, the intelligence and defense sectors—not only with primary sanctions but with secondary sanctions.

…

This legislation provides a review process so the President, on his own, cannot eliminate sanctions. He must come to Congress.

…

This is a tough bill to stand up to what Russia has done and requires mandatory action.Footnote 24

Other legislators likewise made clear that the legislation was meant to prevent President Trump from relaxing sanctions against Russia.Footnote 25 Despite the administration's objections that the provisions interfered with the president's foreign policy authority,Footnote 26 the final House and Senate votes were close to unanimous in approving the bill.Footnote 27

As approved by Congress, the Act enacts two sets of sanctions. First, it entrenches as legislation the six executive orders that President Obama issued in response to Russian interference in Ukraine and in the U.S. presidential election.Footnote 28 Second, it imposes a new set of “mandatory” sanctions against Russia that go beyond those imposed by the Obama administration. On the latter front, sections 224 through 234 provide that the president “shall” impose additional sanctions relating to cybersecurity, natural resource mining, financial institutions, corruption, human rights abuses, intelligence sharing, and arms sales to Syria.Footnote 29 These sanctions use a variety of methods to pressure Russia, including: blocking assets;Footnote 30 denying or revoking visas;Footnote 31 imposing import and export restrictions;Footnote 32 restricting U.S. financial institutions from opening and maintaining accounts affiliated with certain foreign nationals;Footnote 33 barring the Export-Import Bank from supporting the export of goods or services to certain persons or regions;Footnote 34 prohibiting the U.S. government from entering into contracts with sanctioned persons;Footnote 35 and forbidding financial institutions from loaning money to sanctioned individuals.Footnote 36

While the Countering Russian Influence Act describes the second group of sanctions as “mandatory,” some of them only materialize if the president determines that persons meet the statutory criteria for their imposition.Footnote 37 For example, Sections 224, 228, 231, 232, 233, and 234 all specify that the president “shall impose” sanctions but only if he first determines that persons “knowingly” engaged in conduct proscribed by those respective sections.Footnote 38 Conduct triggering the imposition of sanctions includes: engaging in malicious cyberactivity;Footnote 39 investing in Russian crude oil projects;Footnote 40 facilitating a “significant financial transaction” on behalf of sanctioned Russian persons;Footnote 41 perpetrating human rights abuses;Footnote 42 participating in corrupt practices;Footnote 43 engaging in transactions with persons involved in Russian intelligence or defense sectors;Footnote 44 investing in Russian energy development;Footnote 45 and investing in Russian state-owned assets.Footnote 46 Sections 225 and 226 require sanctions to be imposed “unless it is not in the national interest of the United States to do so.”Footnote 47

The Act establishes a new congressional review process.Footnote 48 That congressional review process applies to both the codified Obama-era sanctions as well as the new sanctions.Footnote 49 Section 216 describes that process, starting by requiring before taking any action to modify those sanctions, the president must “submit to the appropriate congressional committees and leadership a report that describes the proposed action and the reasons for that action.”Footnote 50 Section 216(a)(2) continues by listing the actions that trigger the reporting requirement and congressional review process:

(2) Actions Described.—

  1. (A) In General.—An action described in this paragraph is—

    1. (i) an action to terminate the application of any sanctions described in subparagraph (B);

    2. (ii) with respect to sanctions described in subparagraph (B) imposed by the President with respect to a person, an action to waive the application of those sanctions with respect to that person; or

    3. (iii) a licensing action that significantly alters United States’ foreign policy with regard to the Russian Federation.

  2. (B) Sanctions Described.—The sanctions described in this subparagraph are—

    1. (i) sanctions provided for under—

      1. (I) this chapter or any provision of law amended by this title, including the Executive orders codified under section 222 …;

      2. (II) the Support for the Sovereignty, Integrity, Democracy, and Economic Stability of Ukraine Act of 2014 (22 U.S.C. 8921 et seq.); or

      3. (III) the Ukraine Freedom Support Act of 2014 (22 U.S.C. 8921 et seq.); and

    2. (ii) the prohibition on access to the properties of the Government of the Russian Federation located in Maryland and New York that the President ordered vacated on December 29, 2016.Footnote 51

Once the president proposes an action triggering Section 216's reporting requirement, the Act requires the report to describe whether that action is “intended to significantly alter United States foreign policy with regard to the Russian Federation.”Footnote 52 For all proposed actions intended to “significantly alter” U.S. policy toward Russia, the president must include a description of:

  1. (i) the significant alteration to United States foreign policy with regard to the Russian Federation;

  2. (ii) the anticipated effect of the action on the national security interests of the United States; and

  3. (iii) the policy objectives for which the sanctions affected by the action were initially imposed.Footnote 53

Congress then has thirty days from the filing of the report to review the proposed action.Footnote 54 Section 216 prohibits the president from taking the proposed action during that thirty-day review period “unless a joint resolution of approval with respect to that action is enacted” pursuant to the Act.Footnote 55 Congress may authorize the president to take the proposed action by passing a resolution of approval or prohibit the president from acting by passing a resolution of disapproval.Footnote 56 The president may veto a disapproval resolution subject to congressional override.Footnote 57

President Trump signed the bill into law on August 2, 2017.Footnote 58 The president issued two statements about the legislation. In his initial statement, the president asserted that the bill inappropriately interfered with his ability to direct foreign affairs:

[T]he bill remains seriously flawed—particularly because it encroaches on the executive branch's authority to negotiate … . By limiting the Executive's flexibility, this bill makes it harder for the United States to strike good deals for the American people, and will drive China, Russia, and North Korea much closer together. The Framers of our Constitution put foreign affairs in the hands of the President. This bill will prove the wisdom of that choice.Footnote 59

Subsequently, the president noted in his formal signing statement that:

In its haste to pass this legislation, the Congress included a number of clearly unconstitutional provisions. For instance, although I share the policy views of sections 253 and 257, those provisions purport to displace the President's exclusive constitutional authority to recognize foreign governments, including their territorial bounds, in conflict with the Supreme Court's recent decision in Zivotofsky v. Kerry.

Additionally, section 216 seeks to grant the Congress the ability to change the law outside the constitutionally required process. The bill prescribes a review period that precludes the President from taking certain actions. Certain provisions in section 216, however, conflict with the Supreme Court's decision in INS v. Chadha, because they purport to allow the Congress to extend the review period through procedures that do not satisfy the requirements for changing the law under Article I, section 7 of the Constitution. I nevertheless expect to honor the bill's extended waiting periods to ensure that the Congress will have a full opportunity to avail itself of the bill's review procedures.Footnote 60

Despite his concerns, the president indicated that he signed the legislation “for the sake of national unity.”Footnote 61

Russian officials warned the United States that the Act would harm bilateral relations and prompt Russia to take retaliatory measures. In the days leading up to Congress's approval of the Act, President Putin remarked that Russia had remained “restrained and patient” with the United States.Footnote 62 “At a certain moment,” Putin continued, “we will have to respond.”Footnote 63 Russia's deputy foreign minister Sergei Ryabkov said that “[t]he authors and sponsors of this bill are making a very serious step toward destruction of prospects for normalizing relations with Russia and do not conceal that that's their target.”Footnote 64 Prime Minister Medvedev also lamented the legislation marked an end to “[t]he hope for improving our relations with the new U.S. administration.”Footnote 65

Shortly after Congress passed the law, the Russian Foreign Ministry released a statement condemning the United States and outlining its own plans for retaliation. The Foreign Ministry wrote:

On July 27, the US Congress passed a new bill on tougher anti-Russia sanctions. This measure is further proof of the Unites States' extremely hostile foreign policy. Hiding behind its sense of superiority, the United States arrogantly ignores the stances and interests of other countries.

It is common knowledge that the Russian Federation has been doing everything in its power to improve bilateral relations, to encourage ties and cooperation with the US on the most pressing issues … .

…

Meanwhile, the United States is using Russia's alleged interference in its domestic affairs as an absolutely contrived excuse for its persevering and crude campaigns against Russia. This activity contradicts the principles of international law, the UN Charter, WTO regulations and, simply, the standards of [civilized] international communication.

The United States continues to pass more unlawful sanctions against Russia, to seize Russia's diplomatic property, which is [formalized] in binding bilateral documents, and to deport Russian diplomats. This is clearly a violation of the Vienna Convention on Diplomatic Relations and generally [recognized] diplomatic practices.

The adoption of the new sanctions bill is an obvious indication that relations with Russia are being dragged down by political infighting in the United States. Moreover, the new bill uses political means to create a dishonest competitive advantage for the US in the global economy. This blackmail aimed at restricting Russia's cooperation with its foreign partners threatens many countries and international businesses.Footnote 66

The Russian Foreign Ministry then ordered the United States to reduce its “diplomatic and technical staff” then serving in Russia to 455 people, a number equal to “the number of Russian diplomats and technical staff currently working in the United States.”Footnote 67 The Foreign Ministry also announced that the United States would no longer have access to storage facilities “on Dorozhnaya Street in Moscow and [at] the country house in Serebryany Bor. …”Footnote 68 The statement ended with the Ministry's warning that “Russia reserves the right to resort to other measures affecting US' interests on a retaliatory basis.”Footnote 69

The United States condemned Russia's retaliatory measures. On July 31—several days before President Trump signed the legislation—Vice President Pence commented on Russia's embassy restrictions:

President Trump has called on Russia to cease its destabilizing activities in Ukraine and elsewhere and to cease its support for hostile regimes like North Korea and Iran.

And under President Trump, the United States will continue to hold Russia accountable for its actions—and we call on our European allies and friends to do the same.

…

The preference of the United States is a constructive relationship with Russia based on cooperation on common interests … . Regrettably, last week Russia took the drastic step of limiting the United States' diplomatic presence in their nation.

President Trump has made it clear: America is open to a better relationship with Russia. But the President and our Congress are unified in our message: A better relationship and the lifting of sanctions will require Russia to reverse the actions that caused sanctions to be imposed in the first place.

We hope for better days and better relations with Russia, but as I said earlier today, recent diplomatic actions taken by Moscow will not deter the commitment of the United States to our security, that of our allies, and to freedom-loving nations around the world.Footnote 70

The day after Russia announced its new restrictions, U.S. Secretary of State Rex Tillerson issued a press release stating that:

[t]he near unanimous votes for the sanctions legislation in Congress represent the strong will of the American people to see Russia take steps to improve relations with the United States. We hope that there will be cooperation between our two countries on major global issues and these sanctions will no longer be necessary.Footnote 71

On August 31, the State Department announced that it would require Russia “to close its Consulate General in San Francisco, [California] a chancery annex in Washington, D.C., and a consular annex in New York City.”Footnote 72 State Department officials designated the closures as formal retaliation against Russia:

With this action both countries will remain with three consulates each. While there will continue to be a disparity in the number of diplomatic and consular annexes, we have chosen to allow the Russian Government to maintain some of its annexes in an effort to arrest the downward spiral in our relationship.

The United States hopes that, having moved toward the Russian Federation's desire for parity, we can avoid further retaliatory actions by both sides and move forward to achieve the stated goal of both of our presidents: improved relations between our two countries and increased cooperation on areas of mutual concern. The United States is prepared to take further action as necessary and as warranted.Footnote 73

The State Department gave Russia until September 2 to complete the closures.Footnote 74

References

1 Actions Overview H.R. 3664 – 115th Congress (2017–2018), at https://www.congress.gov/bill/115th-congress/house-bill/3364/actions.

2 Id.

3 See generally Countering America's Adversaries Through Sanctions Act, Pub. L. 115-44 (2017). The Act imposes two categories of sanctions against North Korea: first, it includes sanctions to enforce and implement United Nations Security Council Sanctions against North Korea; second, the legislation adds sanctions against North Korea in response to its human rights abuses. §§ 311–24. Similarly, the Act imposes sanctions against Iran for human rights abuses in addition to its ballistic missile program and terrorism-related activities. §§ 104–06. Notably, the congressional review process, described below, see infra notes 48–57 and accompanying text, does not apply to the sanctions on either Iran or North Korea.

4 See id.; see also Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 111 AJIL 483 (2017) [hereinafter Russian Electoral Interference]Google Scholar.

5 Countering Russian Influence in Europe and Eurasia Act of 2017, 22 U.S.C. § 9522 (2017).

6 22 U.S.C. §§ 9524–29.

7 22 U.S.C. § 9511.

8 Infra notes 58–61.

9 Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 108 AJIL 783, 797–808 (2014)Google Scholar [hereinafter Attempted Annexation].

10 See generally Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 109 AJIL 175 (2015)Google Scholar; Daugirdas & Mortenson, Attempted Annexation, supra note 9.

11 Daugirdas & Mortenson, Attempted Annexation, supra note 9, at 798–805.

12 Exec. Order No. 13685, 79 Fed. Reg. 77357 (2014); Exec. Order No. 13662, 79 Fed. Reg. 16169 (2014); Exec. Order No. 13661, 79 Fed. Reg. 15535 (2014); Exec. Order No. 13660, 79 Fed. Reg. 13493 (2014).

13 U.S. Dep't of State, Ukraine and Russia Sanctions, at https://www.state.gov/e/eb/tfs/spi/ukrainerussia.

14 Exec. Order No. 13685, supra note 12 (blocking the property of any person dealing in Crimea and prohibiting persons in the United States from: investing in Crimea; importing Crimean goods or services; exporting goods or services to Crimea; and facilitating or supporting a transaction involving Crimean goods or services); Exec. Order No. 13662, supra note 12 (blocking the “property and interests in property that are in the United States” belonging to persons operating in the Russian economy from being “transferred, paid, exported, withdrawn, or otherwise dealt in”); Exec. Order No. 13661, supra note 12 (blocking the property of persons deemed to be a Russian government official, a Russian arms supplier, or an individual providing material assistance to a Russian government official or arms supplier); Exec. Order No. 13660, supra note 12 (blocking the property of persons “responsible for or complicit in” actions contributing to the crisis in Ukraine).

15 Exec. Order No. 13660, supra note 12.

16 Id.

17 Daugirdas & Mortenson, Russian Electoral Interference, supra note 4.

18 Id. at 483.

19 White House Press Release, Fact Sheet: Actions in Response to Russian Malicious Cyber Activity and Harassment (Dec. 29, 2016), at https://obamawhitehouse.archives.gov/the-press-office/2016/12/29/fact-sheet-actions-response-russian-malicious-cyber-activity-and.

20 Max Greenwood, Official: Trump “Looking at” Future of US Sanctions on Russia, Hill (May 25, 2017), at http://thehill.com/homenews/administration/335244-official-trump-looking-at-future-of-us-sanctions-on-russia.

21 Margaret Talev & Jennifer Jacobs, Trump to Keep Russia Sanctions, Economic Adviser Cohn Says, Bloomberg Politics (May 26, 2017), at https://www.bloomberg.com/news/articles/2017-05-26/trump-to-maintain-russia-sanctions-economic-adviser-cohn-says.

22 Id.

23 White House Press Release, Press Gaggle by Principal Deputy Press Secretary Sarah Sanders (June 15, 2017), at https://www.whitehouse.gov/the-press-office/2017/06/15/press-gaggle-principal-deputy-press-secretary-sarah-sanders-6152017.

24 163 Cong. Rec. S4,387, S4,387 (2017).

25 See id. at S4,388 (statement of Sen. Brown) (“The bill provides for a range of tough sanctions against … Russia … . This bill will prevent President Trump from relaxing sanctions on Russia without congressional review. We are all concerned about that.”); see also id. at S4,387 (statement of Sen. McCain) (arguing that the legislation would impose “mandatory sanctions” to “respond to Russia's attack on American democracy”).

26 See Richard Lardner, White House Criticizes Russia Sanctions Stalled in House, PBS (July 11, 2017), at http://www.pbs.org/newshour/rundown/white-house-criticizes-russia-sanctions-stalled-house.

27 Actions Overview H.R. 3664, supra note 1.

28 22 U.S.C. §§ 9522, 9524–29.

29 Countering America's Adversaries Through Sanctions Act, supra note 3, §§ 224–35.

30 Id., §§ 224(b)(1), 227–28.

31 Id., §§ 224(b)(2), 235(a)(11).

32 Id., §§ 225, 235(a)(1)–(2).

33 Id., § 226.

34 Id., § 235(a)(1).

35 Id., § 235(a)(6).

36 Id., § 235(a)(5).

37 E.g., id., § 224(a) (stating that the president shall impose sanctions on “any person that the President determines” meets several statutory criteria).

38 See id., §§ 224(a)(1), 228(a), 231(a), 232(a), 233(a), 234(a)(1).

39 Id., § 224(a).

40 Id., § 225.

41 Id., § 226.

42 Id., § 228.

43 Id., § 227.

44 Id., § 231.

45 Id., § 232.

46 Id., § 233.

47 Id., §§ 225–26.

48 See id., § 216.

49 Id., § 216(a)(2)(B)(i)(I).

50 22 U.S.C. § 9511(a)(1).

51 22 U.S.C. § 9511(a)(2).

52 22 U.S.C. § 9511(a)(3).

53 22 U.S.C. § 9511(a)(4)(A).

54 22 U.S.C. § 9511(b)(1).

55 22 U.S.C. § 9511(b)(3).

56 22 U.S.C. § 9511(b)(3)–(6).

57 Id.

58 Actions Overview H.R. 3664, supra note 1.

59 White House Press Release, Statement by President Donald J. Trump on Signing the “Countering America's Adversaries Through Sanctions Act” (Aug. 2, 2017), at https://www.whitehouse.gov/the-press-office/2017/08/02/statement-president-donald-j-trump-signing-countering-americas [hereinafter Aug. 2 Trump Statement].

60 White House Press Release, Statement by President Donald J. Trump on the Signing of H.R. 3364 (Aug. 2, 2017), at https://www.whitehouse.gov/the-press-office/2017/08/02/statement-president-donald-j-trump-signing-hr-3364.

61 Aug. 2 Trump Statement, supra note 59.

62 Andrew Higgins, Putin Derides Sanctions and Trump Investigations as ‘Boorishness,’ N.Y. Times (July 27, 2017), at https://www.nytimes.com/2017/07/27/world/europe/putin-sanctions-trump-investigations.html.

63 Id.

64 Neil MacFarquhar, Lawmakers in Russia Call for Retaliation Against New U.S. Sanctions, N.Y. Times (July 26, 2017), at https://www.nytimes.com/2017/07/26/world/europe/us-sanctions-russia.html.

65 Vladimir Isachenkov, Russia Accuses Donald Trump of Waging ‘Full-Scale Trade War’ After U.S. President Signs New Sanctions Bill, Independent (Aug. 3, 2017), at http://www.independent.co.uk/news/world/europe/donald-trump-sanctions-russia-signs-bill-trade-war-dmitry-medvedev-a7874201.html.

66 Embassy of the Russian Federation Press Release, Foreign Ministry's Statement (July 28, 2017), at http://www.russianembassy.org/article/foreign-ministry%E2%80%99s-statement.

67 Id.

68 Id.

69 Id.

70 Office of the Vice President Press Release, Remarks by the Vice President to Enhanced Forward Presence and Estonian Troops (July 31, 2017), at https://www.whitehouse.gov/the-press-office/2017/07/31/remarks-vice-president-enhanced-forward-presence-and-estonian-troops.

71 U.S. Dep't of State Press Release, On Sanctions Legislation (July 29, 2017), at https://www.state.gov/secretary/remarks/2017/07/272938.htm.

72 U.S. Dep't of State Press Release, Achieving Parity in Diplomatic Missions (Aug. 31, 2017), at https://www.state.gov/r/pa/prs/ps/2017/08/273738.htm.

73 Id.

74 Id.