As Vladimir Putin vows to continue his genocidal invasion of Ukraine, Treasury and Justice Department investigators are racing to seize Russian yachts, mansions, and other loot from his despotic regime. Meanwhile, in Washington, Representatives Tom Malinowski of New Jersey and Joe Wilson of South Carolina have advanced a bipartisan measure to clarify exactly how much power the executive branch has to liquidate those assets.
These efforts are laudable and important. But they are not bold enough or quick enough to provide what Ukraine needs.
Even if the Justice Department could sell every yacht and mansion it seizes in the coming months, earmarking the proceeds for military and humanitarian aid, the process would be too slow and the profits too insignificant to meet Ukraine’s growing and urgent needs: to tanks, anti-aircraft missiles, food and medicine. And as the war enters its eighth week and its costs soar, the American people may not be willing to foot the bill for much longer.
An obvious solution is staring us in the face: President Biden could liquidate the tens of billions of dollars that the Russian central bank has parked in the United States as part of its foreign exchange reserves; by some estimates, those funds may total as much as $100 billion. These assets are already frozen at the Federal Reserve and other banks thanks to Treasury sanctions that prohibit transactions with the Russian central bank. With new details of Russian atrocities making the prospect of lifting those sanctions increasingly untenable, those funds have, in effect, been seized indefinitely. Liquidating them now would not only be probably the fastest way to increase US aid to Ukraine without further burdening and fatiguing US taxpayers. It would also send a powerful signal that the United States is committed to making even the world’s most powerful states pay for their war crimes.
The seemingly radical character of this step explains why it has not already been taken, but contrary to recent misunderstandings, it would be anything but “unprecedented”. On occasion, the United States has made funds available from hostile foreign governments for various humanitarian and reparation purposes. In 2003, President George W. Bush seized approximately $1.7 billion in Iraqi funds held in US banks and used the proceeds to help the Iraqi people and compensate victims of terrorism. In 2012, Congress made available frozen Iranian central bank assets to settle lawsuits with the families of those killed in Iranian terror attacks. In 2019, the Trump administration made some frozen assets of the Venezuelan central bank available to exiled opposition leader Juan Guaidó. And in February alone, the Biden administration began the process of liquidating some $7 billion in assets from the defunct Afghan central bank instead of turning them over to the Taliban, reserving half for Afghan humanitarian efforts and the other half to satisfy judgments. lawsuits filed by relatives of those killed or injured on 9/11. That move has been controversial, mainly due to unresolved issues about judicial asset seizure and allocation of claims among grieving claimants, but those issues would go away if Russian assets were transferred directly to aid humanitarian organizations and the Ukrainian government. .
While Congress should certainly consider new legislation that refines the tools it has endowed the executive with, Mr. Biden already has broad legal authority to liquidate Russian assets under a section of the Emergency Economic Powers Act. International, enacted in 1977 to clear up the previously overly broad and tangled mess of presidential emergency economic powers. As the Supreme Court stated in a landmark case on the Iran hostage crisis, the law gives the president “broad authority” to act in times of national emergency and the power to “override, nullify, prevent, or prohibit” any country foreigner “has” or “exercises any right, power or privilege” over property in which he has “any interest”. It also authorizes the president to “order and compel” the “transfer, withdrawal” or “export” of such goods.
Since the reserves in question are owned by the Russian state, unlike the assets of the oligarchs, they are not protected by the usual protections that our legal system affords to private property. The Fifth Amendment’s guarantee against government seizure of property “without due process of law” applies only to “persons,” not foreign governments, as the Supreme Court suggested in 1992 and multiple federal courts have since held. . Protections against the “taking” of property without “just compensation” also apply only to “private property,” a category that clearly excludes Russia’s sovereign reserves, even if they are conveniently parked within the United States and in dollars.
No doubt the Russian government would complain bitterly that liquidating its foreign exchange reserves was “theft”, just as it did with existing sanctions. But Russia’s continued violation of the most basic principles of international law and human rights, and the dire needs of the Ukrainian people, must outweigh its self-serving rhetoric.
To challenge the seizure and liquidation of its assets, the Russian government would have to look not to the Constitution but to a more obscure body of law that protects governments from liability in certain circumstances: “sovereign immunity.” But that immunity protects foreign assets only from Judicial process — non-liquidation by the joint action of Congress and the Executive Power. And as a mere creation of Congress, as the Supreme Court emphasized in 2016, such immunity cannot survive a Congressional enactment like the International Emergency Economic Powers Act.
Congressional Republicans could back down, arguing that such a seizure would constitute a vast expansion of presidential power at the behest of Biden. But the law’s clear granting of authority should allay any genuine concerns. The same should be true of the clear precedent of similar moves by presidents of both parties who have seized central bank assets from human rights violators like Venezuela, Iran and Iraq.
Putin’s genocidal regime falls into that cowardly category, and by treating Russia as such, Biden can go a long way to oust the Trump wing of the GOP that, like its leader, has been reluctant to acknowledge the extent of the Putin’s atrocities and the threat he poses to the United States.
Putin’s Russia knows no rule of law, only brute force. He sees our legal protections as “outdated” sources of weakness, part of his broader boast that free societies cannot stand up to him and other despots around the world. He is wrong. As Yale professor Harold Hongju Koh has persuasively argued, our adherence to the rule of law, far from serving as a straitjacket, “frees us and empowers us to do things we could never do without the legitimacy of the law.” To meet Mr. Putin’s challenge, we do not need to sacrifice our historical principles or confirm his nihilistic vision of governance. By deploying the powers granted by our legal system, we have the tools we need to help the brave people of Ukraine survive and defeat them. It will be poetic justice under the law for us to do so by turning his own treasure against him.
Laurence H. Tribe (@tribelaw) is the Carl M. Loeb University Professor and Emeritus Professor of Constitutional Law at Harvard University. Jeremy Lewin is a third-year law student at Harvard.
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