SOMETHING WICKED COMES THIS WAY

 
Alexander N. Domrin, S.J.D. (Penn),
Senior Research Fellow, Institute of Legislation and Comparative Law (Moscow). He is author of The Constitutional Mechanism of a State of Emergency(Moscow: Public Science Foundation, 1998) and co-author of Essays in the Constitutional Law of Foreign Countries (Moscow: Spark, 1999).

Russia is slowly coming to her senses after almost a decade of Yeltsin's rule, if we start counting from the First Congress of People's Deputies (May-June 1990) which elected Yeltsin its Chairman.

Vladimir Putin inherited a crushed, looted and humiliated country, which industrial product has shrunk by 53 percent (or about 25 percent more than in 1941-45, when Nazi Germany was occupying a larger portion of the European part of the USSR and about 26,5 million Soviet citizens lost their lives), whose increase in mortality rates (60 percent between 1990 and 1996) has been "unprecedented in any country during peacetime since Middle Ages" (Murray Feshbach of Georgetown University, in Washington Post, 12.07.1995), whose men have a smaller chance to survive to age 60 than under "terrible" Russian tzars a century ago, whose population is shrinking by about 2,500 a day (or approximately 0,5 percent a year), which has more homeless children today than after the Bolshevik revolution, and whose role in the world politics has been reduced to a position of "Upper Volta with nuclear missiles".

This is simply not true when senior U.S. officials are now trying to give their post-factum (or post-mortem) assurances that the U.S. foreign policy since the Cold War have included such "overriding goals" as "to work with _Russia_ internationally" and "to support _Russia's_ effort to transform its political, economic, and social institutions at home» (Thomas R. Pickering, Address at Meridian House/Smithsonian Seminar "Russia: Sleeping Superpower?", Washington, DC, March 28, 2000;  text available at: http://www.state.gov/www/policy_remarks/2000/000328_pickering_russia.html
emphasis is added. AD).

In reality, since Margaret Thatcher's infamous endorsement of Gorbachev in December 1984 through the latest period of contemporary Russian history, the Western governments have been promoting a "strategic alliance with Russian _reform_" rather than an alliance with Russia herself. A guiding principle of the U.S. foreign policy was not to support Russia, but to support "Russian _reforms_" which "were considered to be critical to U.S. objectives"  (Foreign Assistance. Harvard Institute for International Development's Work in Russia and Ukraine (Washington, U.S. General Accounting Office: November 1996), p.2); not to help Russian people to overcome consequences of the Communist rule, but "to help Russian _reformers_" (Strobe Talbott, Stanford University, September 19, 1997; emphasis is added. AD) which is not the same.

The position of the IMF was hardly different in that respect from the position of the U.S. Agency for International Development. Even the most devoted supporters of "market fundamentalists", as George Soros names Russian "reformers" ("Who Lost Russia?" , The New York Review of Books, April 13, 2000), have to admit now that the IMF was acting "like another political arm of the U.S. government" (Testimony of Michael McFaul, "Russia's 2000 Presidential Elections: Implications for Russian Democracy and U.S.-Russian Relations", Committee on Foreign Relations, U.S. Senate, April 12, 2000; Johnson's Russia List, #4247, April 14, 2000).

Only in the earliest period of legal and political reforms in the USSR, the U.S. national interests ("objectives") coincided with the historical necessity of the Soviet transition to democracy and the rule of law. As soon as the slogan "Down with Article 6" (Communist Party hegemony clause) and (never realized) slogan "All Power to the Soviets" catapulted Yeltsin and radical "democrats" to power, the correlation between national interests of the U.S. and Russia became less evident. With disintegration of the USSR and especially after the initiation of liberal economic "reforms", turning Russian into a mineral appendix of Western corporations and throwing Russia in her social and economic development into the group of third-world countries, the values of the Russian transition to the rule of law were finally forgotten and supplanted by the interests of the ultimate economic and political subordination of Russia.

It's hard to believe that some of the most eloquent American observers, really think so, when they say that Russia's socioeconomic collapse was "largely unanticipated" or that deindustrialization of Russian economy was an "unintended consequence" of liberal "reforms" (Thomas Graham, "Putin's Russia. Why Economic Reform Requires Political Support. Reflections on U.S. Policy Toward Russia", 9 East European Constitutional Review 1-2 (Winter-Spring 2000)). Warnings about inevitability of such collapse and about suicidal character of monetarist experiments with Russian economy were repeatedly voiced by the Russian Parliament already in 1992-93 and became one of the main reasons of its violent dissolution by President Yeltsin. Dissolution which was unconditionally supported, if not encouraged, by the Western "international community" in general and by both branches of the U.S. Government in particular.

As it was later cynically explained by an American scholar, if the "international community" gives its support to a "traditionally undemocratic act", as it did in Russia in September 1993, then this act is actually "democratic", albeit "unconstitutionally democratic" (Donna R. Miller, "Unconstitutional Democracy: Ends vs. Means in Boris Yeltsin's Russia", 4 Transnational Law & Contemporary Problems 2 (Fall 1994), p.876). The conclusion itself is a complete rejection of Clinton Rossiter's classic legal formula: "Even if a government can be constitutional without being democratic, it cannot be democratic without being constitutional" (Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton University Press, 1948), p. viii)).

The day after Yeltsin's issuance of his notorious anti-constitutional Decree 1400, Rep. Steny H. Hoyer (D-MD) admitted that Yeltsin's decree was "technically speaking" "illegal" but insisted that Yeltsin "acted in the spirit of democracy by breaking the letter of the law". However, the "primary reason for continued Western backing for Yeltsin", in Hoyer's words, was not even that he "acted in the spirit of democracy", but that "Yeltsin is explicitly pro-American, pro-Western, pro-market", whereas the Parliament "has accused the West of seeking to undermine and weaken Russia" and "opposes Yeltsin's privatization program". According to the Congressman, "it is imperative" "for our own interests", that Yeltsin's government "implement necessary reforms and keep Russia on a pro-Western track" (Yeltsin Moves to End Chaos - Hon. Steny H. Hoyer (Extension of Remarks), Congressional Record, 22.09.1993. P. E2219). The question whether this was "imperative" for the interests of Russia was not asked.

The same day Senator Claiborne Pell (D-RI) welcomed "the swift, unequivocal show of support that the Clinton administration has shown for President Yeltsin's move to consolidate democratic reform in Russia" and appealed to the Senate to vote for $2.5 billion in "assistance" to Russia and other former Soviet republics in order to "to show the reformers in the NIS that we are in their corner" (Support for Democratic Reform in Russia, Congressional Record, 22.09.1993. P. S12239). Thus again, the senator unambiguously demonstrated that U.S. aid was intended not for Russia and the countries of the region, but for the "reformers".

The speeches and proposals of Rep. Hoyer and Sen. Pell were quite typical. Another prominent Congressman, Rep. Gerald B. Solomon (R-NY), for instance, expected that the new  Federal Assembly "would almost certainly be more democratic [in a letter to President Clinton of October 26, 1993, Solomon even said: "far more democratic". - AD] and friendly to the West than the previous parliament", "truly representative", and concluded that the December 1993 elections "have a direct bearing on our national security and should be treated as a top foreign policy priority by the administration". "The democrats are in desperate need of outside assistance", Solomon said, "We believe it is imperative for the West to provide as much assistance as possible to democratic candidates in Russia", and called on Congress to "divert from existing programs whatever resources necessary to achieve the objective of ensuring" victory for the reformers in Russia (Elections in Russia. - Hon. Gerald B.H. Solomon (Extension of Remarks), Congressional Record, 26.10.1993. P. E2534, E2536).

At least one expectation of Rep. Solomon came true: the new Russian Federal Assembly did in fact become a "truly representative parliament", but... without most of those "reformers".

The list of similar speeches on the Capitol Hill and in the White House in the days of Yeltsin's constitutional coup of September-October 1993 could be continued, but what is really important for us is an open recognition by the U.S. officials of not only a possibility but a desirability of use of American "aid" as an instrument of interference into Russian internal affairs.

U.S. support for such undemocratic and anti-constitutional decisions as the violent dissolution  of the Russian federal parliament, closure of regional legislatures throughout Russia, and suspension (for about 18 months) of the Constitutional Court made it clear better than ever before that despite its verbal assurances in its interest to see Russia as a prosperous, respected and democratic "partner", the U.S. government was quite satisfied with making her a client state controlled by a dependent semi-criminal authoritarian leader, "corrupt but friendly drunk", as Yeltsin was later described by The Washington Post.

It's highly indicative that it was in 2000 only when the former Secretary of State James Baker publicly appealed to the U.S. "leaders" to finally "recognize that Russia will have its own foreign policy, independent of our" (James A. Baker III, "Repairing Relations with Russia", The New York Times, February 05, 2000). Yet, Baker contradicts himself when saying that new "Russian leaders" [read: Putin. - A.D.] allegedly "reject 'partnership and friendship'" with the West. This statement, just like a similar Thomas Graham's lament that "a constructive U.S.-Russian partnership now appears a distant dream", is not convincing, because a "partnership" with Russia was never an issue. In fact, Graham recognized it himself in his testimony before the Senate Foreign Relations Committee (April 12, 2000) when saying that "the Administration's earlier talk  of 'strategic partnership' created expectations in Russia that we were never prepared to meet" (Johnson's Russia List, #4244, April 13, 2000).

The new Russian Constitution is usually more favorably viewed by Western experts than similar constitutions of some other former Soviet republics. It is claimed that "the Constitution of the Russian Federation created a true federation", that after the adoption of the constitution in December 1993 "all basic civil rights" exist in Russia "not only in theory as they did in the past, but in practice as is true in western democracies", and, finally, that "the Constitution of the Russian Federation creates a genuine western democracy" (Ronald C. Monticone, "A Brief Comparative Analysis of the Russian Constitution". In: Constitution of the Russia Federation.  With Commentaries and Interpretation by American and Russian Scholars (Lawrenceville, VA: Brunswick Publ. Corp., 1994), p. 7, 9, 14.). The 1996 Constitution of Belarus, on the other hand, is usually seen as not meeting "democratic standards of human rights", granting "sweeping powers" to President and establishing "dictatorship" and "totalitarian state".

The problem is that often correctly criticized Lukashenka's Constitution of Belarus (see, e.g., Presidential Powers and Human Rights under the Draft Constitution of Belarus (New York: Lawyers Committee for Human Rights, October 1996)) is just a stronger version of Yeltsin's Constitution. If, for instance, according to the Russian Constitution the decision on President's removal from office must be adopted by a vote of two-thirds of the total membership of each chamber of the Federal Assembly, and the whole impeachment process is to be accomplished  within three months after filing the charge against him (Art. 93), the Constitution of Belarus has the same provision regarding voting in the lower chamber (House of Representatives), but raises the threshold for the Senate to three-quarters of its total composition, and limits the time frame to one month (Art.88). Yet, the Russian Constitution provides for five stages in the impeachment process (including participation of both the Supreme and Constitutional Courts of Russia) which makes the process more time-consuming, whereas the impeachment process in Belarus is to be accomplished in four stages without involvement of the Constitutional Court. In practical terms, however, the Constitutions of both countries make their Presidents technically unimpeachable.

The real reason why Western official figures and, what is more regrettable, many foreign experts react so differently to these constitutions can be explained mainly by the fact that one of them was endorsed by an "explicitly pro-American, pro-Western, pro-market" president, whereas the other one was introduced by a more independent national leader, which is a sufficient reason for the U.S. mass media to label Alexander Lukashenka as "stupid", "paranoid", "with Neanderthal views" (Chicago Tribune, Editorial, March 29, 1997), "the Stalinist leader of Belarus", and even "an open admirer of Hitler" (The New York Times, "Russia and Its Tyrant Neighbor" (Editorial),August 25, 1997). That's about a leader of the Nation where every fourth citizen was slaughtered by Nazis...

U.S. official support to the dissolved Belorussian parliament and orchestration of anti-Lukashenka's "active measures" from overseas (see, for instance, the U.S. State Department Press  Statement "Belarus: Deputy Secretary Talbott Meets With Belarusian Opposition Leaders" of February 4, 2000; text available at:
http://secretary.state.gov/www/briefings/statements/2000/ps000204a.html), on the one hand, and, at the same time, demonization of the Russian Supreme Soviet as "nationalist-Communist bloc" ("Russia Without Rules" (Editorial), The Boston Globe, September 23, 1993), a "nationalist, crypto-Soviet opposition" (Celestine Bohlen, "An Old Georgian Story: Dancing with the Devil", The New York Times, October 24, 1993), "a band of Communist apparatchiks" (William Safire, "On Dying Hard", The New York Times, September 30, 1993), a "band of Communists and fascists"  ("Detours to Russian Democracy" (Editorial), The Boston Globe, September 30, 1993), and even "communist fascists masquerading as parliamentarians" (Thomas Oliphant, "Another Clash with the Beast", The Boston Globe, October 6, 1993) bespeaks of a policy of double standards, which is quite typical for the U.S., but hardly healthy for democratic developments in both Russia and Belarus.

The participation of American consultants in the Russian presidential election of 1996 once again illustrated that proud words of U.S. officials about the necessity of strict observance of laws in a law-governed state and about "the promotion of democracy as a key feature of American foreign policy" (Strobe Talbott, Deputy Secretary of State. Address at All Souls College, "The Crooked Timber: A Carpenter's Perspective". Oxford University, January 21, 2000; text available at:
http://www.state.gov/www/policy_remarks/2000/000121_talbott_oxford.html)
are very easily forgotten when the U.S. national interests - at that moment, preservation of "our horse", as Ambassador Strauss called Yeltsin, and "our best man in Russia", as Russian President was named by Brent Scowcroft back in 1992, in power - are at stake.

Although there is no reason to overestimate the role of Richard Dresner's group in Yeltsin's victory in 1996, what is really important, is the practical lesson given to us in Russia by the U.S. consultants, their attitude to legal norms and political "necessity". As revealed by Dresner himself, he was on  a regular basis reporting about the work of his group in Moscow directly to President Clinton's aide Dick Morris. When asked, "if he had any compunction about the extent to which the Yeltsin campaign was violating election spending laws by many orders of magnitude, Dresner's answer was 'No', because "Yeltsin was for democracy, and whatever it takes to win is OK" (see Jonathan's Weiler's report about a panel discussion at Duke University "Designing Boris Yeltsin's Victory" (March 26, 1997) featuring Richard Dresner, in Johnson's Russia List, March 29, 1997).

According to a well-informed American observer, the U.S. Embassy was expecting pro-Yeltsin falsifications in the 1996 presidential elections and "warned" the Moscow US AID Mission to keep a "distance from monitoring efforts that might actually uncover fraud" (Sarah E. Mendelson, Western Assistance and the Development of Parties and Elections in Russia (Democracy and Rule of Law Project, Carnegie Endowment for International Peace, Fall 1999;  text available at:
www.ceip.org/programs/democr/NGOs/index.html), p. 30, 31)).
Clearly, the end justifies the means.

A similar approach was used in the activities of at least two of the US AID-funded programs aimed at "developing parties and elections" in Russia: those of the National Democratic Institute (NDI) and the International Republican Institute (IRI). Overall, according to US GAO, between 1992 and 1997 those programs received $17.4 million, as a series of US AID grants, to "help reformist political parties strengthen their organizational structures and their role in elections" (US GAO report, 1996, p.37). Needless to remind of the disastrous defeats of radical "democrats", the main consumers of the US AID "assistance", in every parliamentary elections in Russia since 1993.

In the summer of 1995, the US AID Moscow Mission commissioned a report to analyze the "effectiveness of U.S. government assistance to the Russian Parliament" (on file with the author). An independent expert evaluated the three main AID-funded programs working with the Russian Federal Assembly: those of NDI, IRI, and of the U.S. Congressional Research Service (CRS). The report revealed that the activities of the NDI and IRI were based on favoritism. It found that "most efforts" by both the NDI and IRI "were channeled to the education and training of  staff workers and MPs in the Vybor Rossii" (Russia's Choice) faction" (p.12). Yabloko was not forgotten either. A former NDI program officer in Moscow has admitted lately that in the 1990s, Yegor Gaidar and Grigory Yavlinsky "appeared to favor trips to the West vastly  more than they did trips to the regions" (Mendelson, p.24).

The same report also concluded that "some of the IRI activities have been marked by unsystematic and over-demonstrating style" (p.11), and that the seminars of NDI and IRI "leave an impression of some political show rather than profound regular work" (p.21).

Ironically, the group of approximately 3,000 "reformist-minded political activists" trained by the U.S. programs in 1992-96 also included Vladimir Putin ("trained" by NDI), who is now described by Michael McFaul, since 1990 an NDI consultant in Moscow himself, as someone who "may turn out to be Russia's Milosevic", someone "willing to use the power of the state and ignore the democratic rights of society in the pursuit of his objectives", whose election as a new Russian President was not a "positive step" for the U.S. interests in Russia (Testimony before the Senate Committee on Foreign Relations, April 12, 2000; Johnson's Russia List, #4247, April 14, 2000).

Although certain aspects of the CRS program were criticized as well, overall the CRS record was recognized to be "much better because all of its activities are actually connected with the parliament as such" (p.20). As stated by Duma authorities, "within one year of cooperation with the CRS, the Duma has been equipped with modern technologies for 10-15 years ahead" (p.18). According to a Federation Council respondent, "cooperation with the CRS resulted in the unique computer network having no analogues even in the executive structure" (p.19). Equally important is the fact that when in the December 1995 parliamentary elections none of the "reformist" parties, except Yabloko, cleared the 5-percent threshold to bring its members to the Duma (by the party lists), the NDI and IRI lost about 90 percent of their contacts in the Federal Assembly, whereas CRS, whose credo was to work on an unbiased and non-partisan basis with all factions and committees in the Russian Parliament, maintained all their contacts.

Paradoxically, it was the low-budget ($2.5 million) CRS Program which was abruptly stopped by the U.S. authorities in 1996, whereas multimillion NDI, IRI and similar Western programs still promote the "reform-minded liberals" in Russia and train "pro-Western, liberal-minded political activists following strategies developed in Western capitals" (Mendelson, p.4, 5).

Interruption of the CRS-Russian Federal Assembly Parliamentary Program became a part of a more general U.S. policy aimed at circumventing Russian parliamentary processes (see, e.g., Peter Stavrakis, State Building in Post-Soviet Russia: The Chicago Boys and the Decline of Administrative Capacity (Kennan Institute for Advanced Russian Studies, Washington, 1993);  Peter Stavrakis, "Bull in a China Shop: US AID's Post-Soviet Mission", 3 Demokratizatsiya 3 (Fall 1995); Janine R. Wedel, "Clique-Run Organizations and U.S. Economic Aid: An Institutional  Analysis", 4 Demokratizatsiya 4 (Fall 1996); Janine R. Wedel, Collision and Collusion: The Strange  Case of Western Aid to Eastern Europe, 1989-1998 (New York: St. Martin's Press, 1998)).

When it became apparent that the new Russian Federal Assembly was as resistant to the experiments of "bolshevist monetarists" (Peter Stavrakis) with Russian economy as the disbanded Supreme Soviet, U.S. "assistance" to Russia gave precedence to decree-making over long-term legal institutional development in the country. Much of the work of Western consultants and USAID-funded programs has gone towards executive decrees rather than parliamentary legislation. According to the  US GAO, just one AID-funded program - the Harvard Institute for International Development (HIID) – in 1994-96 alone drafted "hundreds of decrees". As explained in the GAO report, "HIID supported the use of decrees because it believed that they advanced reforms"" (US GAO Report, 1996, p.46).

The energetic work of the program came to a sudden end in May 1997, when after a thorough investigation US AID came to the conclusion that key HIID players in Moscow (Andrei Shleifer and Jonathan Hay) having "gained influence over nascent Russian capital markets", had "abused the trust of the United States government by using personal relationships ... for private gain", and canceled the 58-million dollar Harvard project. The Wall Street Journal drew the attention of its readers to the fact that "the Harvard men had been assigned to promote, among other things, Western ideals of fair play" (Carla Anne Robbins & Steve Liesman, "Harvard Men Built Market, But Didn't Steer Clear of It", The Wall Street Journal, August 13, 1997).

Another stunning defeat of radical "reformers" in the Russian parliamentary elections in 1999, Putin's decisive victory in the presidential campaign, which is viewed by most observers as the end of "revolutionary changes" in Russia, and election of a new Republican President in the U.S. will inevitably make it necessary for the new U.S. Administration to reevaluate the results of its policy in Russia in the 1990s and outline a blueprint for the next decade. The very first statements of U.S. President-elect Bush about the necessity to reduce the role for the United States in financial aid for Russia (The New York Times, January 15, 2001), got a positive response in Moscow. In the words of the Duma Speaker Seleznev, "we are tired of corruption and of our criminal leaders, who have concluded transactions to Russia's detriment" (RFE/RL Newsline, January 15, 2001).

Whereas the programs of American assistance to dismantlement of nuclear weapons in Russia, as well as cultural, scientific and educational exchanges between our countries, should definitely be maintained and further developed, continuation of the U.S. reliance on a narrow circle of pro-Western liberal intelligentsia and "agents of democratic change" (Michael McFaul) in Russia proves to be wasteful, eventually unproductive for the U.S. interests and detrimental to the goals of long-term institutional legal and democratic development of Russia. U.S. aid to Russian "reformers" should be stopped by the U.S. Administration before it's interrupted by the Russian Government!

On the other hand, a working group of experts of the Russian Council for Foreign and Defense Policy (see its report on "Russian-American Relations at the Turn of the Century": http://www.svop.ru/doklad23_3.html) formulated its concept of "small deeds", where the "benefits are obvious for both sides while avoiding sharp issues", as the most adequate, in the present circumstances, form of mutually beneficial U.S.-Russian cooperation. The assistance aimed at strengthening the system of checks and balances in the Russian constitutional mechanism, and programs of cooperation with those branches of the Russian government, whose position was undermined under Yeltsin, may at least partly counterbalance the authoritarian character of superpresidential Constitution of Russia. A new full-scale project that would use the experience and continue the work of the CRS-Russian Federal Assembly Parliamentary Development Program (1994-1996), and extension of programs  of technical assistance to the Russian judicial reform (including the Supreme Court and Cnstitutional Court of Russia), together with a significant effort aimed at development of legal education in Russia (first of all in the regions), should be seriously considered. In the long run, impact of such programs on Russia's transition to the rule of law  will prove to be more significant than just a "small deed".

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