By Bret Stephens
September 19, 2023
The New York Times
Volodymyr Zelensky will visit Washington this week to give thanks to the United States for its generosity — while asking for $24 billion more, which is what the Biden administration is seeking from Congress in additional military and humanitarian aid to Ukraine. That will bring the total amount of American aid to $135 billion, which so far has been $223 million a day since the war began, according to one calculation.
Maybe it’s time to open a new funding source before American largess runs out — this time from Russia.
Since Russia’s invasion of Ukraine in February 2022, the United States and our democratic partners have frozen roughly $300 billion in Russian central bank assets, amounting to a little less than half of the Kremlin’s foreign currency and gold reserves. Some of us have been arguing ever since that the money should be transferred to Ukraine, both as a matter of justice and as a deterrent against this kind of aggression. As the former Treasury secretary Larry Summers has put it, “Bank robbers should not expect banks to honor their safe deposit boxes.”
So far, the Biden administration has disagreed. “It would not be legal now in the United States for the government to seize” Russia’s assets, Janet Yellen, the Treasury secretary, said in May 2022. The Economist magazine has argued that such measures would violate international law, and there are worries that they would also harm American economic interests as foreign countries sought to de-dollarize their economies.
But those objections are themselves flimsy. A carefully argued and exhaustively researched 184-page report circulated this week among journalists, government officials and NGO leaders by the Renew Democracy Initiative shows why.
The report’s lead author is Harvard’s Larry Tribe, the legendary liberal law professor with whom I disagree about many things — but not about this. (Full disclosure: I helped start the Renew Democracy Initiative six years ago and I sit on its advisory board, but I had no hand in the making or publication of the report.) The report’s central conclusion is that the president has ample authority, under the 1977 International Emergency Economic Powers Act, or I.E.E.P.A., to transfer Russia’s frozen assets to Ukraine. “I.E.E.P.A. plainly states that the president can ‘investigate,’ ‘block,’ ‘regulate,’ ‘direct and compel,’ ‘nullify,’ ‘void’ and ‘prevent or prohibit’” the conveyance of property from one entity to another, Tribe and his colleagues write. “Those powers address conveyances of ‘any right, power or privilege’ with respect to property that a foreign country has an interest in and that is subject to the jurisdiction of the United States.” Past presidents have used this authority before: George H.W. Bush froze Iraq’s assets in the United States after its invasion of Kuwait, and ultimately transferred them to the United Nations Compensation Commission for victims of Saddam Hussein’s aggression.
What about Russia’s “sovereign immunity,” the legal doctrine that a state is immune from the judgments or penalties of foreign courts? That’s one of the arguments sometimes trotted out against transferring Russia’s assets to Ukraine. It’s also irrelevant. “It’s a doctrine applicable only in judicial proceedings, not one designed to hamstring a country’s foreign policy as reflected in executive or legislative action,” Tribe wrote me in an email. “There is simply no basis for saying Russia can violate Ukraine’s sovereignty while invoking its own sovereignty as an inviolable shield.”
There is a well-established doctrine in international law, Tribe’s report notes, of “countermeasures,” actions that might otherwise violate international law but are lawful “because the action is taken against another state for an internationally wrongful act.” The principle is simple: Violators of international law don’t get a veto over the penalties for their violations.
Finally, there is the argument that the United States could suffer long-term economic damage if other countries avoided parking their money here for fear it could be taken from them. I put that argument to Summers, who allowed that there was a risk of the United States acting unilaterally, without the coordination of European countries where most of Russia’s funds are currently frozen. “The idea is to do this multilaterally,” he told me. If others didn’t, there might be a flight from the dollar. But if it is done by all the major currencies, where are people going to move their money?”
Summers is a powerful proponent of transferring funds to Ukraine. Not the least of his arguments is that the Rubicon has already been crossed. We’ve frozen Russia’s assets and declared Vladimir Putin a war criminal; it’s unthinkable that the money will ever be unfrozen except to fund Ukraine’s reconstruction. So why not get on with it now, when additional funding could hasten Ukraine’s victory, help its people as they are under fire, and send a potent message to the Kremlin and other would-be aggressors that the financial price of invasion is as countable as it is steep?
The Biden administration has compiled an honorable record of doing right by Ukraine — but generally comes around to it a bit late. Helping to defeat Russia with Russia’s own money is vital to that effort. The moral logic is compelling. The legal case is clear. And, as the bills add up, the political moment is now.
Bret Stephens has been an Opinion columnist with The Times since April 2017. He won a Pulitzer Prize for commentary at The Wall Street Journal in 2013 and was previously editor in chief of The Jerusalem Post. Facebook