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USUBC - Washington Watch & Update Report # 26
Analysis & Commentary - From Private Observers & Writers
U.S.-Ukraine Business Council (USUBC),
Wash, D.C., Thursday, August 9, 2017
Wash, D.C., Thursday, August 9, 2017
President Trump signed the Russian sanctions bill into law, and it is a law that makes it harder for him to lift sanctions on Russia. The President included a signing statement complaining that the new law includes “a number of clearly unconstitutional provisions.”
Specifically, the president complained about sections 253 and 257 of the legislation, which state that the United States “does not recognize territorial changes effected by force,” and will “never recognize the illegal annexation of Crimea by the Government of the Russian Federation or the separation of any portion of Ukrainian territory through the use of military force.” The author, Robert Mackey sees this a possible indication President Trump is or could be willing to deal with Putin on Crimea.
Commentary: Before this sort of concern develops into a full-scale alarm we should be clear on several things: (1) What is a signing statement? Such statements were once quite rare but became more common during the Reagan Administration and their use has increased since. Not all signed legislation is accompanied by a signing statement.
However, in some instances the President issues a signing statement to put on the record his views of, or interpretation of the statute. The President under Article I is a legislator in the sense that he generally must sign legislation for it to become law and thus wants his interpretation on the record. (2) As for the President’s statement (set out below) no alarms necessary.
What the statement says is the historical White House and Office of Legal Counsel (Department of Justice) position – Congress cannot tell the President to recognize government A over government B. So it is the Administration position that the President has constitutional authority to recognize Russian sovereignty over Crimea, for example, if he wanted to do so.
However, the key thing is the statement about sharing the policy goals – i.e., the President is signaling that he does not intend to do anything rash, but it is and has been the view of the Executive that the President must not remain silent when he sees a challenge to the President’s constitutional authority. The President can raise constitutional objections to a provision in a law but still act consistently with the law, though in the Administration’s view he does so voluntarily.
The purpose of the signing statement is to lay down a marker showing that the President’s signature on the legislation was not acquiescence to the idea Congress had the authority to force him to do something against his will.
The President’s formal signing statement
Today, I have signed into law H.R. 3364, the "Countering America's Adversaries Through Sanctions Act." While I favor tough measures to punish and deter aggressive and destabilizing behavior by Iran, North Korea, and Russia, this legislation is significantly flawed.
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.
Further, certain provisions, such as sections 254 and 257, purport to direct my subordinates in the executive branch to undertake certain diplomatic initiatives, in contravention of the President's exclusive constitutional authority to determine the time, scope, and objectives of international negotiations. And other provisions, such as sections 104, 107, 222, 224, 227, 228, and 234, would require me to deny certain individuals entry into the United States, without an exception for the President's responsibility to receive ambassadors under Article II, section 3 of the Constitution. My Administration will give careful and respectful consideration to the preferences expressed by the Congress in these various provisions and will implement them in a manner consistent with the President's constitutional authority to conduct foreign relations.
Finally, my Administration particularly expects the Congress to refrain from using this flawed bill to hinder our important work with European allies to resolve the conflict in Ukraine, and from using it to hinder our efforts to address any unintended consequences it may have for American businesses, our friends, or our allies.
(2) Putin Lashes Out – Atlantic Council
The Kremlin’s reaction to the new US sanctions indicates that Russian President Vladimir Putin is in a “lashing-out mood,” that, while unsettling, will be short-lived, according to Daniel Fried, a distinguished fellow at the Atlantic Council’s Future Europe Initiative. “I would not take this terribly seriously,” said Fried of the Kremlin’s mandate on July 30 that the United States must cut 755 members of its diplomatic staff in Russia.
“These kinds of diplomat wars seem important at the time,” he added, yet, when comparing the current situation to a similar diplomatic fallout between the United States and the Soviet Union in the 1980s, Fried said it is clear that Russia’s response will not have long-lasting detrimental effects. Fried described how “the Soviets tried this,” adding that “this sort of thing captures headlines.” While “it works in the short run; it doesn’t work in the long run,” he said. “For now,” however, “we’re going to be in a rough period,” said Fried, a former sanctions policy coordinator at the US Department of State.
Commentary: One must hope that upon reflection President Trump will understand this “lashing-out” by Putin is not the fault of Congress (as he has charged) but a manifestation of who Putin is and that sanctions are a response to Putin’s misdeeds – that Putin is responsible for all the trouble – he is the enemy.
(3) Will New US Sanctions Regime Finally Hit Putin and Those Closest to Him? – Window on Eurasia/Paul Goble:
Western sanctions on Russia up to now have hit the ordinary people of that country, although not as hard as the countersanctions the Kremlin itself has imposed. But the Western actions have done less to affect those closest to Vladimir Putin who, unlike the Russian people, may be in a position to demand he change course or even leave office. The Western sanctions regime in response to Putin’s aggression against Ukraine has been based on the assumption that if his people suffer, he will change his position.
But Putin cares very little about the suffering of his people – indeed, he has hurt them far more by his counter-sanctions than the original sanctions did. Moreover, as ever more polls show, Russians even though they have been impoverished at least in part by the sanctions/counter-sanctions combination are adapting to their new reduced circumstances and at least as ready as they were earlier to support Putin and his regime (znak.com/2017-08-02/eksperty_konstatiruyut_chto_rossiyane_privykli_k_krizisu_i_stali_bolee_dovolnymi).
The sanctions regime to date did not hit Putin’s core supporters: the oligarchs and the super-rich whose position his regime has made possible. Indeed, new information shows that Russia’s billionaires became significantly richer in the first half of this year (kasparov.ru/material.php?id=598172C1AD868). The new US sanctions law that President Donald Trump signed into law today promises to change that because it calls for investigations in the wealth and holdings of Russia’s wealthiest, something that would be at least a nuisance and in the view of some would strike at Putin “personally” (nv.ua/opinion/piontkovskiy/kak-sanktsii-ssha-udarjat-lichno-po-putinu-1583825.html).
That, of course, assumes that the measure will be implemented as its backers intended, but Trump has been anything but enthusiastic about a law that ties his hands and makes it far more difficult to achieve the rapprochement with Russia that he suggested during his campaign he wanted to pursue.
And thus it should surprise no one that some lawyers and businessmen are already discovering “loopholes” in the law that might be used to allow individuals or corporations to escape what the authors of the measure appear to have intended, as Russia’s RBC news agency reports today (rbc.ru/economics/02/08/2017/5980a5289a794754fb147bc2). It analysts point out that the new law has a provision that wasn’t in the original draft.
That provision provides that the government can issue “routine” licenses to companies to do business with Russia if that “does not introduce essential change in the policy” of the US toward Russia. RBC cites US lawyers as saying that this change “leaves to the president real freedom to issue license which permit actions which otherwise would be subject to punishment” and that the measure does not provide any means for those who object to any such grants to appeal them except via the federal courts.
That in turn means that the Trump Administration could issue licenses under this law which would allow certain Russian figures to fly under the provisions of the act in their dealings with the United States and thus feel less pressure from the new measure than many now are assuming.
Commentary: As Washington Watch has repeatedly noted the President is the critical key both Russian and Ukrainian policy and he has not really declared himself. One can make a case he is weak on Russia or that he is certainly stronger on Russia than anticipated. One can argue both ways about Ukraine as well.
But it is going to be his actions that count. Will he enforce the sanctions as intended? Will he allow defensive weapons for Ukraine? At the moment the comparisons to President Obama on these questions shows a pattern too similar to allow any comfort to those concerned about America’s best interests.
(4) In New Russian Sanctions Law, A U.S. Warning Of Things To Come – Radio Free Europe/Radio Liberty
One section focuses on Russian sovereign debt, which the Kremlin has used to stabilize strategically important companies since sanctions were first imposed by the United States and European Union in 2014, following Russia’s annexation of Ukraine’s Crimean Peninsula. The measure, which received overwhelming support in Congress calls on the Treasury and State Departments, along with intelligence officials, to analyze the “potential effects of expanding sanctions...to include sovereign debt and the full range of derivative products.”
Though the measure only orders a report on the issue it signals Congress at least wants information important to any possible consideration of closing off a Russian workaround to the 2014 sanctions. Those sanctions cut off from the international credit markets several major companies either controlled by, or closely linked to, the Russian government. The Kremlin was forced to bail out those companies to the tune of tens of billions of dollars since they were unable to roll over existing debt and ended up drawing down some of its rainy-day investment funds. But the U.S. and EU sanctions didn’t prevent the Russian government from raising capital on its own.
Commentary: There should be no question as to how upset Congress is about Russia’s actions. Yes, much of the comprehensive congressional animus is based upon the Russian involvement in the 2016 elections – though that anger has different roots within the two political parties – but it is real just the same. The anger regarding Putin’s war on Ukraine is there as well but in monitoring support for Ukraine, defensive weapons for Ukraine, etc. one has to keep in mind the intensity resulting from Russia’s election involvements.
(5) UN, OSCE Resolutions On Crimea Presented At Semena Trial – Radio Free Europe/Radio Liberty
Resolutions from the UN General Assembly and the Organization for Security and Cooperation in Europe (OSCE) on Russia's 2014 annexation of Ukraine's Crimea region have been presented at the trial of Mykola Semena, an RFE/RL contributor who is fighting what he says is a politically motivated separatism charge. Both international resolutions condemned the annexation of Crimea as illegal under international law.
The hearing was adjourned until August 31. The charge against the 66-year-old Semena stems from an article he wrote for RFE/RL's Krym.Realii (Crimea Realities) website in 2015. The Kremlin-installed prosecutor in Crimea charged that the article called for the violation of Russia’s territorial integrity. Semena faces up to five years in prison if convicted.
Commentary: What is it the world is supposed to believe about Russia’s commitment to territorial integrity? The hypocrisy of the Kremlin knows no bounds.
(6) The president took my passport away. But I’ll keep fighting for a modern Ukraine – The Washington Post
Mikheil Saakashvili writes: Ukraine deserves so much more. I am committed to helping defend this great nation both from Russian President Vladimir Putin, who is undermining it from the outside, and from Poroshenko and the other oligarchs, who are destroying it from the inside. Even though I am barred from reentering Ukraine, I will continue to fight for my rights as a citizen and will continue to work for the best policies for the country.
(7) Eyeing Russia, U.S. military shifts toward more global war games – Reuters
The U.S. military is moving toward more global exercises to better prepare for a more assertive Russia and other worldwide threats, a senior officer said in an interview with Reuters.
Commentary: Air Force Brigadier General John Healy, who directs exercises for U.S. forces in Europe, said officials realized they needed to better prepare for increasingly complex threats across all domains of war - land, sea, air, space and cyber. Healy said Russia was his main focus in Europe, and officials were keeping a close watch on Moscow's Zapad military exercises that begin next month and which experts say could involve about 100,000 troops.
(8) How U.S. Allies Undermine NATO: European countries divest from American defense firms that help protect them –The Wall Street Journal
Orde F. Kittrie, a law professor at Arizona State University and senior fellow at the Foundation for Defense of Democracies, writes that the U.S. spends heavily to defend Europe, yet most North Atlantic Treaty Organization members don’t spend 2% of their GDP on defense, as the alliance’s guidelines call for. Worse, many of these free riders also punish U.S. companies for manufacturing weapons used by the Pentagon to defend NATO allies and other countries.
Specifically, several NATO member governments have divested from or even criminalized the purchase of stock in U.S. defense contractors. Between 2005 and 2013 Norway’s government pension fund divested from U.S. defense contractors such as Boeing, Honeywell, Lockheed Martin and Northrop Grumman “because they are involved in production of nuclear weapons.”
The fund, controlled by Norway’s Finance Ministry, is worth some $900 billion. At the end of 2015, approximately $180 billion was invested in 2,099 American companies. Norway, a NATO member, divested even though these companies produce nuclear weapons only for the U.S. government, and NATO’s 2012 Deterrence and Defence Posture Review describes U.S. nuclear weapons as “the supreme guarantee” of members’ security.
The hypocrisy goes further: In 2016 Norway authorized its pension fund to invest in Iranian government bonds—even though Iran has sponsored terrorism for decades and is a patron of Bashar Assad’s atrocities in Syria. So far only Norway has divested from companies for producing nuclear weapons.
But the government pension funds of Denmark, France and the Netherlands have joined Norway in divesting from American companies that produce other weapons stocked by the U.S. military. These countries have targeted General Dynamics, Raytheon and Textron for manufacturing cluster munitions and land mines, in some cases after production reportedly has stopped.
Commentary: As Professor Kittrie recommends Congress and the Executive must spotlight and vigorously oppose such boycotts – there should be consequences!
(9) The Daily Vertical: Why Ukraine, Georgia, And Moldova Matter (Transcript) – Radio Free Liberty/Radio Liberty
What happens in Ukraine, what happens in Georgia, and what happens in Moldova matters -- and it matters a lot. They form the contested zone in a battle of governance, the results of which will be felt for generations. Because while what we are experiencing now is not really a Cold War in the sense that most understand that term, we nevertheless are in a battle between two normative systems on the Eurasian landmass.
The one to the West is based on values we hold near and dear: individual rights, accountable government, transparency, the rule of law, and the sanctity of contracts. And the one to the East is based on a very different set of principles: patron-client relationships, cronyism, paternalism, and the subordination of the law to power.
(10) Don’t Arm Ukraine – National Review
It’s a tempting way to stick a finger in the Kremlin’s eye, but it would be a foolish and costly mistake. When they have command of their senses, U.S. policymakers tend to think better of involving our nation deeply in Ukraine. So this week’s calls from lawmakers and policy wonks to arm Ukraine are a sign that the Trump and Russia scandals have concussed our political class. Sending weapons to Kyiv makes no more sense today than it did two years ago.
Commentary: The author of this rather pathetic piece, Michael Brendan Dougherty, is listed as “a senior writer at National Review.” Reading the article one has to wonder what qualifies some to be a “senior writer”? Clearly the title does not automatically mean someone who genuinely knows anything – or maybe even the slightest thing – about the subject about which they are writing.
Whether it is the high school-like version of Ukraine’s history, the fanciful distinction between Ukraine’s so-called Ukrainian-speaking and Russian-speaking, the baseless suggestion of weakened Russia’s invasion and annexation of Crimea as an act of desperation, or the total ignorance of the military situation, Dougherty’s embarrassing (at least for National Review) thoughts come across as nothing more than another ignorant American using Kremlin talking points to get published.
An “Editor’s Note” at the end of the article advises “The article has been corrected to reflect the year Crimea was annexed.” Too bad the editor didn’t recognize everything else that was inaccurate in the piece.
(11) The Case for Arming Ukraine – National Review
As included above National Review published the ill-informed article by Michael Brendan Dougherty. Subsequently – and wisely – National Review published this piece by the far more informed Casey Michel. Michel explains that Dougherty’s piece betrayed a lack of familiarity with the post-Soviet space and a broader ignorance of regional dynamics and came to a conclusion anathema to American interests, both current and future. Perhaps it is best to include the entire text:
Dougherty’s conclusion — that President Trump, despite support from Congress and those in the White House, should hold off on delivering anti-tank missiles to Ukraine — rests on a handful of points. First, to Dougherty, the delivery of such missile systems would “not meaningfully deter Moscow’s aggression” because the “Russian public [has] proven willing to lose troops in battle over the last two decades in vicious wars in Chechnya.”
To those unfamiliar with the subject, there’s a whiff of truth to this argument, insofar as no amount of proposed American weaponry will allow Ukraine to defeat Russia outright. But the notion that defeating Russia outright would be the goal of any effort to arm Ukraine is simply false. No serious analyst has argued that American anti-tank arms would allow Kiev (sic) to “beat” Moscow. Indeed, the Kremlin’s regional “escalation dominance” remains one of the facts on which both sides agree. Contra Dougherty, the purpose of sending weapons to Kiev (sic) would be to heighten the costs of continued conflict for the Kremlin, which is currently slogging through yet another year of negligible growth.
Because while Dougherty may view Russia, especially its government, as willing to sacrifice sufficient troops to defend the beleaguered separatists in eastern Ukraine, all available evidence suggests the opposite. There’s a reason Russian authorities have effectively shunned public acknowledgment of the Russian forces fighting in Ukraine. Authorities have already gone so far as to arrest elderly women attempting to understand Russia’s role in the region, and the country has seen lawmakers beaten simply for attempting to document Russian soldiers’ deaths.
This is because while many within Russia continue to support the Russian-backed separatists in the region, their support is purely rhetorical, and will remain so as Russians’ belts keep tightening. At last check, barely 10 percent of Russians were willing to send their children to fight on the state’s behalf in eastern Ukraine — a reality the Kremlin, recently shaken by sudden, unprecedented protest, must recognize. Dougherty, unfortunately, fails to discern between Chechnya (a constituent republic within Russia proper) and eastern Ukraine (a slice of the fanciful “Novorossiya” whose star has only waned since 2014).
He may believe that Russians stand ready to sacrifice for greater autonomy in eastern Ukraine, but such claims only highlight his thin understanding of post-Soviet dynamics. Perhaps most concerning of all, Dougherty appears to believe that backing Ukraine — a country he chauvinistically refers to as “not a particularly admirable state,” as if battling Russian-backed secessionists to a stalemate and effectively neutering Russia’s attempts at a Eurasia union weren’t admirable accomplishments — with anti-tank weaponry is simply about “get[ting] Vladimir Putin’s goat,” whatever that may mean. It’s almost as if he views the maintenance of the post-Cold War order as a secondary concern.
Just like the current sanctions regime, which signals a Western unity in the face of Russian revanchism, the delivery of anti-tank weaponry to Kiev (sic) would signal America’s commitment to the post-Cold War European order and its international norms, which Moscow continues to threaten. After all, governments in Belarus and Kazakhstan — both, like Ukraine, signees to the Budapest Memorandum, in which they agreed to sacrifice their nuclear arsenals in return for assurances of territorial integrity — continue to eye Russia warily, even as they worry about whether the U.S. will live up to commitments Moscow has chosen to abrogate. Should the U.S. falter, its standing in the post-Soviet space, and elsewhere, will be further diminished.
Thankfully, Dougherty, like Trump, appears to be in the minority. Like President Obama — who listened impassively as numerous Cabinet members, from Joe Biden to John Kerry, argued in favor of delivering arms to Ukraine — Trump appears to be the only major figure in his own White House opposed to arming Kiev. (sic)
Commentary: Ah, someone including the Budapest Memorandum in his reasoning. So many make the point that Russia ignores at will treaties and agreements signed, which is absolutely true. But, it is a disservice to any notion of making “America great again” to suggest the United States could possibly be “great” if it too ignores its commitments.
As for Casey Michel’s last sentence one must hope President Trump will not prove to be in the minority of his Administration. Multiple news reports and USUBC’s own sources suggest strongly the inter-departmental recommendation now at the White House supports providing defensive weapons to Ukraine. It is time for the President to act – accepting that recommendation and allowing the process to move forward.
(12) Why giving Ukraine lethal weapons would be a massive mistake – The Washington Post
The Trump administration is in the midst of making a decision on whether to transfer lethal weaponry to Ukraine. This potential move is intended to give Ukraine’s military the ability to impose new costs on the Russians and their proxies engaged in a separatist revolt in the country’s eastern region of Donbass, thereby persuading the Kremlin to give up the fight.
But the result would likely be the opposite — an escalation in the conflict that would lead to further losses of Ukraine’s territory and compromise its political stability. Russia enjoys insurmountable military superiority over Ukraine. The United States should not encourage Ukraine to engage in an escalatory confrontation with Russia. Washington knows full well that Ukraine cannot prevail. Yada, yada, yada….
Commentary: We must include another example of this ill-informed and ill-reasoned thinking to emphasize among other things (a) how successful the Kremlin narrative is in finding its way into our policy discussions; and (b) how delayed decision-making within the Administration allows the cancer of such propaganda to fester and influence the less informed.
Of course in selecting this example – written by Charles A. Kupchan, a professor of international affairs at Georgetown University and a senior fellow at the Council on Foreign Relations, who served on the National Security Council from 2014 to 2017 – the Obama National Security Council – we clearly identify one of the few from the last Administration who gave reasoning to President Obama’s choice not to act. Identifying such individuals is always important and they need to be remembered. Kupchan’s reasoning is, as in other instances, right off the Kremlin talking points.
(13) EU Expands Sanctions against Russia over Delivery of Siemens Turbines to Occupied Crimea – IntelligencerPost
The European Union has expanded its sanctions against Russia over its annexation of Ukraine’s Crimean Peninsula, after gas turbines of German producer Siemens were transferred by Russia to the Crimea. The fact that electricity turbines produced by Germany’s Siemens had been delivered to Crimea, Ukraine’s Black Sea Peninsula which was annexed by Russia in 2014, in spite of the bans in the European Union’s sanctions against Moscow, was first revealed by media reports in early July. Top Russian officials continue to suggest the West to “stop obsessing” over the Crimea, and keep denying Moscow’s involvement in the war in Donbass.
Commentary: One really does have to wonder about the core values of a culture where the default position of its leaders uniformly is to lie. How can you really have common interests in anything?
(14) Democracy International Applauds Confirmation of Ambassador Mark Green to Lead USAID – press release
Democracy International applauded the unanimous Senate confirmation vote for former Congressman Mark Green to be Administrator of the U.S. Agency for International Development saying Ambassador Green is qualified for the position, having served previously as U.S. Ambassador to Tanzania, as a Member of Congress representing Wisconsin's eighth congressional district, and, most recently, as the President of the International Republican Institute. IRI has, of course, been quite active in Ukraine.
(16) America's Ukraine Hypocrisy – The National Interest
There is an abundance of outrage in the United States about Russia’s alleged meddling in the 2016 presidential election. Multiple investigations are taking place, and Moscow’s conduct was a major justification for the sanctions legislation that Congress just passed.
Some furious political figures and members of the media insist that the Putin government’s interference constitutes an act of war. Such umbrage might be more credible if the United States refrained from engaging in similar conduct. But the historical record shows that Washington has meddled in the political affairs of dozens of countries—including many democracies. An egregious example occurred in Ukraine during the Euromaidan Revolution of 2014.
Commentary: CATO’s Ted Galen Carpenter presents very selective history to make what is essentially his unsupported/unsupportable view of the Euromaidan. His tripe nicely follows the Russian narrative proving how effective the Kremlin’s propaganda machine has been.
But what might be even more disturbing is that CATO, or at last Mr. Carpenter, seems to believe that the only people capable of articulating and launching revolutionary change are Americans -- how uninformed, narrow and self-indulgent is that perspective. The “evidence” provided of US manipulation in the case of Ukraine is pathetically weak and trying to argue some kind of equivalence on the basis of what is provided would be laughable but for the fact that The National Interest continues to publish this type of junk .
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