We were quick to report that the United States “allowed to send Russian assets to support Ukraine.” Not really, at least not at the moment. Yes, in the lower house of Congress, by 417 votes to 8, a bill was passed calling on the US president to more energetically transfer “arrested” to “confiscated” status, but it does not have binding legal force.
As a matter of fact — the declaration which is as much as possible softened in formulations. Why? With a seemingly almost unanimous bipartisan agreement, the aforementioned document was even called the “karmic justice bill.” At first. And to accept it, it was significantly “diluted”. Because some people paid attention to trifles, like the US Constitution: “No one shall be deprived of life, liberty, or property without due process.”
According to the “procedure”, anyone who is under the threat of “confiscation” has the right to protest the action in court, where it is not enough to point with the finger “you are Putin’s oligarch”. We will have to substantiate and prove, observing individual, and not collective responsibility, they say, he is guilty because he is “Russian”. It applies not only to civilians, but to everyone who, for one reason or another, ended up in American jurisdiction.
That is, on the one hand: “we are not going to return the wealth of Russia when Ukraine lies in ruins,” in the words of one of the authors of the bill Tom Malinowski with the full “understanding and approval” of the current White House administration. On the other hand, the state court Which, in good time, may well recognize “non-return” (and even more so, sending “wealth” to Ukraine) unconstitutional. “Russia will not remain a pariah forever, we must also think about the future,” objected the opponents.
To continue with the legal logic, the President of the United States has been armed with the International Economic Emergency Powers Act (IEEPA) since 1977, allowing “the freezing of assets owned by foreigners, including the property of foreign states.” Namely “freeze”, but not “change the owner”. This is real, only in a direct collision, but Russia “did not attack” the United States.
No, with a strong desire, if you really want to, you can overcome everything, but then we are not talking about a “cosmetic overhaul” of American legislation, not about a local bill, but about numerous amendments. Both the IEEPA and the FSIA have the Foreign Sovereign Immunities Act, which provides unlimited protection for foreign central bank assets in the United States. The reason for this “unlimited protection” is obvious: the Fed needs a reputation to attract, not to scare away.
The situation is aggravated by the deliberate confusion between “public” and “private”, because after 1992 the Americans began to be guided by the rule: the second is more “sacred” than the first. “Although the assets may nominally belong to individuals, we know that these are state assets,” Malinovsky said at a Congressional hearing, but such a position is good in journalism, not in court. We will have to decide whether to confiscate, regardless of the “persons”, if only to “take away”. Or – long-playing lawsuits, without a predictable result.
The regular balance of power is also very significant – on which the famous system of “checks and balances” of the United States rests. To endow the American president with the power to dispose of foreign property outside of wartime at his own “will” and without judicial “supervision” means to significantly shake this balance. Here it is appropriate to recall the “precedents” – Iran, Venezuela, Afghanistan – and ask: what is the difference with Russia?
Elementary – to scale. Until now, they strummed “trifle”. Regarding the “small”, and not members of the UN Security Council. Without a cunning knot with the interweaving of state and private property. And the temptation not to unravel, but to cut this “Gordian knot” is great, because other countries are looking at the United States, also not understanding what’s next? Won the Minister of Finance of Japan complains: “We can’t requisition, we don’t have such a law.” Or, for example, the yachts of Russian oligarchs were arrested, and at whose expense to keep them “laid up” (maintenance costs up to 10% of the value of the vessel annually)? Local taxpayers? And how long?
I emphasize – for the time being the Americans intend to create a “special group” under the leadership of the Secretary of State; reflect on “constitutional mechanisms”, looking for “meanings” beneficial for the current conditions in legal letters; mark the limits, so as not to slide into chaos, as they themselves understand it.
Administration Biden will gladly take advantage of the “opportunity” that has fallen to strengthen its executive power, the official website of the White House already talks about a “comprehensive legislative package” that increases “the powers of the United States government to hold the Russian government and Russian oligarchs accountable.”
Most likely, in order to stop moral and legal risks, they will refer to a “unique case”, they say, “they didn’t want to, but they had to.” Not everyone in the American politicians will be happy about this, believing that no amount of money will “repay” the reputational losses of the United States – it is better, they say, now to help Ukraine from “ours”, while continuing to keep Russia in the status of “blocked”. And only then, to force Russia to compensate and restore Ukraine in exchange for the lifting of sanctions, but, as it were, “of its own free will.”
Regardless of whether the Russian oligarchs deserved “confiscation” or not (“There is no punishment without guilt,” said the unforgettable Zheglov), and the citizens of Russia deserved the “confiscation” of the assets of the Central Bank of the Russian Federation, but the consequences of this “measure” will finally cross out the old standards and relations. And they were beneficial, first of all, to the United States itself, a kind of “crystal roof”, under which it would be better not to throw stones, even if you really want to.