As Vladimir Putin vows to continue his genocidal invasion of Ukraine, Treasury and Justice Department investigators scramble to seize Russian yachts, mansions and the other loot of his despotic regime. Meanwhile in Washington, Rep. Tom Malinowski of New Jersey and Joe Wilson of South Carolina have pushed a bipartisan move to clarify exactly how much power the executive branch has to liquidate those assets.
These efforts are commendable and important. But they are neither brave nor fast enough to provide what Ukraine needs.
Even if the Justice Department were able to sell every yacht and villa seized in the coming months and use the profits for military and humanitarian aid, the process would be too slow and the proceeds too insignificant to meet Ukraine’s growing and urgent needs: for tanks, Anti-aircraft missiles, food and medicine. And as the war enters its eighth week and its costs are skyrocketing, the American people may not be ready to foot the bill for much longer.
One obvious solution is staring us in the face: President Biden could liquidate the tens of billions of dollars the Russian central bank has parked in the United States as part of its foreign exchange reserves; It is estimated that these funds amount to up to 100 billion US dollars. Those assets are already frozen at the Federal Reserve and other banks, thanks to Treasury Ministry sanctions banning transactions with Russia’s central bank. As new details of Russian atrocities make the prospect of lifting these sanctions increasingly untenable, these funds have been effectively confiscated indefinitely. Liquidating them now would probably not only be the quickest way to increase American aid to Ukraine without further burdening and tiring American taxpayers. It would also send a strong signal that the United States is determined to make even the world’s most powerful countries pay for their war crimes.
The seemingly radical nature of this step explains why it has not already been taken but, contrary to recent misconceptions, would be anything but “unprecedented”. The United States has occasionally provided funds from hostile foreign governments for various humanitarian and remedial purposes.
In 2003, President George W. Bush confiscated approximately $1.7 billion in Iraqi funds sitting in American banks and provided the proceeds to help the Iraqi people and compensate victims of terrorism. In 2012, Congress made frozen assets of the Central Bank of Iran available to settle legal disputes involving the families of those who died in Iranian terrorist attacks. In 2019, the Trump administration provided exiled opposition leader Juan Guaidó with some frozen Venezuelan central bank assets.
And just this February, the Biden administration began liquidating some $7 billion in assets of the defunct Afghan central bank rather than handing them over to the Taliban, reserving half for Afghan humanitarian efforts and the other half to serve court rulings in Fulfilling complaints filed by the Afghan Central Bank Relatives of those killed or wounded in the September 11 attacks. The move was controversial, mainly due to unresolved issues about judicial attachment of assets and division of claims among dueling plaintiffs, but those issues would be removed if Russian assets were transferred directly in support of humanitarian organizations and the Ukrainian government.
While Congress should definitely consider new legislation to refine the tools it has armed the executive branch with, Mr. Biden already has broad statutory authority to liquidate Russian assets under a section of the International Emergency Economic Powers Act , enacted in 1977 to clear up the previously overbroad and muddled muddle of the president’s emergency economic powers. As confirmed by the Supreme Court in a landmark case on the Iran hostage crisis, the law gives the president “broad powers” to act in times of national emergency and the power to “nullify, annul, prevent or ban” any foreign country to forbid”. ‘ or ‘exercising any right, power or privilege’ over property in which it has ‘an interest’. It also authorizes the President to “direct and compel” the “transfer, withdrawal” or “export” of such property.
Since the reserves in question are Russian state property – unlike the assets of oligarchs – they are not protected by the usual protections that our legal system affords to private property. The Fifth Amendment guarantee against government confiscation of property “without due process of law” applies only to “persons” — not foreign governments — as the Supreme Court suggested in 1992 and several federal courts have since ruled. The protection against “appropriation” of property without “fair compensation” also only applies to “Private property,” a category that clearly excludes Russia’s state reserves, even if they’re conveniently parked in the United States and in dollars.
The Russian government would certainly complain bitterly that liquidating its foreign exchange reserves was “stealing,” just like the existing sanctions. But Russia’s continued violation of the most fundamental principles of international law and human rights – and the urgent needs of the Ukrainian people – must count for more than its self-serving rhetoric.
To challenge the seizure and liquidation of their assets, the Russian government would not have to rely on the constitution, but on a more opaque body of law that shields governments from liability in certain circumstances: “state immunity.” But this immunity only protects foreign assets from this judicial process – not before liquidation by the joint action of Congress and the Executive Branch. And as a mere creation of Congress, as the Supreme Court pointed out as recently as 2016, such immunity cannot survive a Congressional act such as the International Emergency Economic Powers Act.
Republicans in Congress could hit back, claiming that such a seizure would represent a major extension of the president’s powers at the behest of Mr. Biden. But the law’s clear empowerment should allay any serious concerns. This should also set the clear precedent of similar moves by presidents from both parties who have seized central bank assets from human rights abusers such as Venezuela, Iran and Iraq.
Mr. Putin’s genocidal regime falls into this insidious category — and by treating Russia as such, Mr. Biden can do much to smoke out the Trump wing of the Republican Party, which, like its leader, is reluctant to acknowledge the scale of Mr. Putin’s atrocities and the threat he poses to the United States.
Mr. Putin’s Russia knows no rule of law – only brute force. He views our legal protections as “old-fashioned” sources of weakness, part of his broader boast that free societies cannot stand up to him and other despots around the world. He’s wrong. As Harold Hongju Koh, a professor at Yale, has convincingly argued, our adherence to the rule of law serves not as a straitjacket but “liberates us and enables us to do things that we could never do without the legitimacy of the law”. To meet Mr. Putin’s challenge, we need not sacrifice our historical principles or affirm his nihilistic vision of governance. By using the powers of our legal system, we have the tools we need to help the brave people of Ukraine survive and defeat him. It would be poetic justice under the law if we did this by turning his own treasure against him.
Laurence H. Tribe (@tribelaw) is Harvard University Professor Emeritus. Jeremy Lewin is a third-year law student there.
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https://www.nytimes.com/2022/04/15/opinion/russia-war-currency-reserves.html opinion | 100 billion dollars. Russia’s treasure in the US should be used against Putin.