Experts’ views of the Russians’ horrific war against Ukraine have changed over the weeks of battle–and the once-impossible scenario depicting the Ukrainians actually stopping the Russians has gained favor.
Now, with the Russians claiming they plan to push on to overtake Moldova, the threat of a widening war that the US has tried to avoid seems more likely. The urgency of a Ukrainian win has become even more evident.
But to hold on, the Ukrainians need far more support than they’re currently receiving.
In this video interview and the co-authored essay cited above, Laurence Tribe, a prominent legal scholar and Professor Emeritus at Harvard Law School, describes a way that President Biden can lawfully release for Ukrainian use frozen Russian government assets that the US holds–assets that may amount to $100 billion.
It is a far-reaching plan worth considering–promptly. Existing efforts are “neither bold enough nor swift enough” to provide what Ukraine needs, Tribe and co-author Jeremy Lewin write.
“Even if the Justice Department were able to sell every yacht and mansion it seizes over the coming months, earmarking the profits for military and humanitarian aid, the process would be too slow, and the proceeds too insignificant, to meet Ukraine’s growing and urgent needs: for tanks, antiaircraft missiles, food and medicine. And as the war enters its eighth week and its costs balloon, the American people may not be willing to foot the bill much longer.
“An obvious solution is staring us in the face: President Biden could liquidate the tens of billions of dollars 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 banning 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 likely the fastest way to increase American aid to Ukraine without further burdening and fatiguing American taxpayers. It would also send a potent signal that the United States is committed to making even the world’s most powerful states pay for their war crimes.”
Tribe and Lewin stress that although this move may sound radical, it has been used before: government funds have been seized by President George Bush from Iraq; by Congress from Iran; by Trump from Venezuela. President Biden has actually begun the process of unfreezing former Afghan government central bank funds for humanitarian relief (instead of giving them to the Taliban).
Backing up their proposal, the authors cite a section of the 1977 International Emergency Economic Powers Act and a landmark 1981 Supreme Court case responding to the Iran hostage crisis that give the President such authority. Protections against the government taking private property do not apply because the funds belong to the Russian state, not individuals, they add.
“The Russian government would no doubt complain bitterly that liquidating its currency reserves was ‘thievery,’ just as it did with the existing sanctions. But Russia’s continued violation of the most basic principles of international law and human rights — and the Ukrainian people’s dire needs — must count for more than its self-serving rhetoric.”
They conclude:
“Mr. Putin’s Russia knows no rule of law — only brute force. He views our legal protections as ‘obsolete’ sources of weakness, part of his broader boast that free societies cannot stand up to him and other despots around the world. He’s wrong.
“As Harold Hongju Koh, a professor at Yale, 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 law’s legitimacy.’ To meet Mr. Putin’s challenge, we needn’t sacrifice our historic principles or confirm his nihilistic vision of governance. By deploying the powers our legal system affords, we have the tools we need to help the courageous people of Ukraine survive and defeat him. It will be poetic justice under law for us to do so by turning his own treasure against him.”
I have great respect for Tribe and appreciate his frequent comments on Twitter. And like the authors, I’ve been worrying about how long American taxpayers will continue to support sending hundreds of millions of dollars worth of weaponry and supplies to Ukraine as the war drags on. The same is true about our European partners. While Finland is moving closer to NATO, the imminent French election will be dangerously close. Orban in Hungary is sidling up to Putin. Etc, etc.
In his “Today’s Edition” newsletter, Robert Hubbell, whom I also respect, urges anyone who agrees with the Tribe/Lewin piece to call our Senators and Representatives, as well as the comment lines for both the DOJ (1-202-353-1555) and the White House (1-202-456-1111), urging support for this proposal.
This “Russian cash for Ukraine” idea seems to me relatively clean, logical, dripping with karma, and legal—the latter based on the precedents cited. But the authors aren’t military experts—or world finance experts—or diplomats. All those perspectives might complicate the picture. Are there some ramifications that must be considered?
When Tribe was interviewed by Lawrence O’Donnell, he said he would urge President Biden to consider this suggestion. That phraseology gave me comfort, as I’m assuming a consideration of such a major step would include gaining input from the experts who might have concerns that Tribe and Lewin (and I) may not have considered.
It’s clear we must do everything we can–soon–to help the Ukrainians defeat the Russians, thereby ending this genocide and quashing Putin’s empire-amassing plans. Could that $100 billion enable the Ukrainians to save their country, which is a fight for democracy? If so, how can we not push for using these Russian resources?
What do you think? If you concur, would you be inclined to contact your elected officials and leave a supportive comment with the DOJ and the White House?
Annie
annieasksyou... 
Really interesting, particularly the precedent for such an action already existing.
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Yes, and in the video, Tribe speaks of other American Presidents’ use of the 1977 Act, including Reagan, George HW Bush, and Obama. The Act has been amended several times since its passage, but clearly gives the President such powers during a national emergency, which this war has been designated.
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Frozen assets should be freed when the war ends as an incentive for peace. Giving Russian assets to Ukraine would be an extreme provocation, for which the US would be openly responsible. We might take a lesson from the Korean War. After the North Koreans were driven out of the South, the war might have ended. Instead McArthur, for whatever reason, pushed too far, bringing China into the war. This war must end without escalation.
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An incentive for peace? Putin should nolonger be treated as a civilized leader. I agree that the frozen assets should be used against Russia. Going forward, I see no way that we can deal with Putin. Russia’s only way forward is to remove him from power.
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I am hoping that the mothers of Russia will awaken to reality and become a strong force for new Russian leadership. I don’t see any way to deal with Putin now either. He should be an international pariah.
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An incentive for peace? Putin should no longer be treated as a civilized leader. I agree that the frozen assets should be used against Russia. Going forward, I see no way that we can deal with Putin. Russia’s only way forward is to remove him from power.
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I appreciate your perspective, whungerford, but no one seems to believe there will be a release of these funds as a carrot for peace. Putin has gone too far as a war criminal. America’s intelligence has been terrific in assessing Putin’s moves to date, and they’re always seeking to do more for Ukraine without going too far. But there’s a growing contempt for allowing his threats to diminish our policies. If there’s a consensus among the powers that be to tap these funds, I think we must do it—and soon!
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$100 billion should be considered only a first installment for the senseless death and destruction visited up Ukraine and its people.
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Better sooner than later, mm. The Ukrainians are amazingly brave and resilient, but we see the immense bombardments and horrific war crimes they’re confronting.
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War is the enemy of humanity; we ought to do what we can to avoid it, nothing to prolong it and everything we reasonably can to negotiate an end to it. A proxy war fought in Ukraine over Ukraine is a disaster for Ukrainians. Overconfidence, demonizing adversaries, and militarism are counterproductive.
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whungerford: As someone who has participated in various anti-war demonstrations, I emphatically agree with your first sentence. And I believe the Biden administration has been trying to do just that. I believe your closing sentence should be directed at Vladimir Putin—and not at the brave Ukrainians fighting to protect their democracy/right to self-determination or their Western allies who, based on Putin’s words and actions, see his designs going well beyond Ukraine.
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I’m with Professor Tribe. Let’s use the frozen assets. As for using it as a negotiation technique for peace? Putin has shown zero interest in peace and nothing he has said as to his intentions in Ukraine has been true. Let’s use the funds and see if that changes things.
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Thanks, Denise. With the benefit of hindsight, I can’t think of any instance in which Putin has signaled interest in peace.
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If peace is our goal, we should take the initiative.
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whungerford: I’d love to know how you envision that happening. Putin’s army is decimating the land, raping and murdering children, and showing no indication of wanting peace in any way. When Ukraine has sought talks, he has guaranteed safe harbor to civilians and then, once they try to reach safety, has killed them or forced them to Russia. There is broad agreement that the fact that he got away with Crimea, etc., has simply emboldened him. What kind of peace do you think is possible?
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I don’t know what is possible, but there is Eleanor Roosevelt’s dictum: “Nothing has ever been achieved by the person who says ‘It can’t be done.'” I am upset by Defense Secretary Austin statement that the goal is to diminish Russia. That’s not a proper goal.
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Austin: “We want to see Ukraine remain a…democratic country able to protect its sovereign territory…We want to see Russia weakened to the degree that it can’t do the kinds of things it has done in invading Ukraine…We want to see them not have the capability to very quickly reproduce that capability.”
whungerford: I think those are worthy goals for a civilized nation to pursue against a country that has committed horrific war crimes in a war aimed at civilians–and has threatened to go beyond Ukraine.
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I understand (and generally agree with) whungerford’s comments. My thoughts have been along the lines of what will be done once the war is ended. I am not smart enough to figure out HOW it ends, but it will end at some point. Assuming Ukraine will not be totally victorious, and Ukraine might have to rely on a negotiated settlement, once the fighting has stopped Russia or Putin will want the sanctions lifted. I say Russia or Putin because we don’t know if Putin will still be in place when the fighting stops. In any case, Russia will want the sanctions lifted as part of the concessions to end the fighting. At that point the civilized world must consider how Russia must be penalized for the utter destruction of Ukraine and the war crimes the Russian military has committed. If we (the civilized world) refuse to lift the sanctions, Russia will be encouraged to fight to the last Ukrainian. If we transfer the seized assets and/or keep the sanctions in place we will be encouraging the same outcome – the fighting continues to the last Ukrainian. Also, we must learn from what was done to the Wiemar Republic at the end of the first world war. The punishment was so severe at the end of WWI that it directly led to WWII barely 20 years later. Please don’t misunderstand me, Russia needs to be punished severely for what it has done. Russia cannot be allowed to participate in civilized world leadership for a very long time. Many Russian military members will have to be held accountable for war crimes. Unfortunately, both the seized assets and the sanctions may have to be employed to get Russia to agree to stop the incredible evil they are carrying out. If Ukraine is victorious or Russia withdraws due to untenable casualties or failing supplies, then might be the time to distribute the seized assets and prolong the sanctions. We have already declared Russia guilty of war crimes. If we also give away $100 Billion in seized Russian assets and sanction them into the dark ages, will we be backing Russia into a corner where they have few options but to strike back with every tool they have? First we must consider the fate of the remaining people of Ukraine. And so many other former Soviet satellites.
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This is a very thoughtful comment, Barnberry, and I understand your perspective. The biggest problem, I think, is that Ukraine is geographically stuck next to Russia, and its democratic path is a direct affront to Putin’s goal of reassembling the Russia that once was. So while no one knows how the war will end, it seems fairly predictable that Russia under Putin won’t change its mindset. I don’t know where negotiations can fit in there. The West can help Ukraine rebuild, and he’ll just retool his military and return in a few years.
My hope is that the Russian people will learn about Putin’s huge miscalculation and the evil he’s perpetrating in their name and will oust him. Russia needs leadership that will move away from depending on its former satellites for things it’s forgone due to corruption. Then it will become a viable economic power without feeling the need to threaten its neighbors.
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I just saw this tweet from former US Ambassador to Russia Michael McFaul. It resonates with me.
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Hello Annie. I agree that the people of Russia need to rise up themselves to change their leadership. The problem is they are in a complete vacuum of information other than what Putin wants them to know. Any disagreement is punishable by 15 years in prison. The State controls most of the media including what other nations social media can allow the people to see. They do this by threatening the workers at the places of business that the wealthy own / use in Russia. I was reading about a news company that had a choice to continue publishing information about the war that looked bad for Russia outside Russia and all its workers inside Russia would be jailed and punished. They tried to move their people and were blocked. Hard choice for many US companies to leave Russia knowing their workers at all levels will pay the price. Those are also the war crimes the Russian government must answer for.
My thought is why don’t the governments around the world set up broadcasts into Russia like the US used to with Air America. There are ways to direct information into Russia for the people to get the truth of the situation and the facts. That part of the war effort seems to be lacking. Push the information in all the cracks so the people can see and hear the reality, not the myth that Putin wants to spread. It seems a missed opportunity. We have people who can hack the Russian networks, their TV broadcasts, and replace the feeds. We have the tech to insert information they can access on their web devices. If we want the people in Russia to help the effort to stop the war, they have to have the information that would motivate them to do so. Show the mothers the deaths. That worked in the US. Best wishes.
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Scottie: I’m aware of the Russians’ tactics to prevent their people from knowing the truth. But there are plenty of hackers already engaged in getting info through. I worry though, that the mindset to believe the lies is impenetrable—sorta like what we’re experiencing with too many Americans. The Russian mothers are being told their sons were martyrs for the Cause. That’s a tough wall to penetrate, but we’ve got to keep trying. Kind regards.
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This is an interesting proposal Annie and one that I hadn’t heard about. I’m ill-equipped to judge whether such actions should be taken and agree that financial, political, and diplomatic experts should be consulted. But, yes, Biden should definitely be considering every option. I would also feel more comfortable with using Russia’s money against itself if our European allies concurred.
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Though Tribe doesn’t mention our allies, I would hope that the Biden administration would discuss such a far-reaching proposal with them first. I think they would, as they seem to be very intent on keeping the alliance intact.
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Hello Annie. I will try to stay on topic and not let my view that this is already a world war color what I want to add to the comments here already. The idea of using the frozen assets is a great idea for paying costs Ukraine is incurring for its defense and also for countries willing to stop using Russian oil / gas that will have economic turmoil and recession is viable. Take Germany, they have reduced their use of Russian oil / gas from 55% to 35% but say any attempt to lower that within a year will causes a steep recession tanking the German economy. The world needs to understand Russian bullying is helping it find ways around the sanctions designed to stop its war of aggression. Plus the assets of countries helping Russia need to be looked at for this goal. I am talking about India and China. The rest of the world needs to make supporting Russia as painful as possible to cause these countries to reconsider. From what I have read there is the fear of creating new blocks of friendly democracies vs unfriendly strongmen run authoritarian countries, but that ship has already sailed. The fractions have changed names and members of the groups are different, but the same fight has continued with the economic power behind the push to removed democracy and install authoritarianism, because the greatest profit is in places without protections for the people. The question is should these economic tactics be used against the aggressors not just limited to Russia? I agree with using the frozen assets and the illegally got gains of Russia, but what about the Arab countries decimating Yemen? Or freezing Israeli assets over illegal settlements in Palestinian territories?
I am saying the good guys must be consistent with what we do. We cannot be legitimate if we do it to just Russia but block any attempt to do it to other countries doing the same or nearly same acts of aggression to smaller less able to defend themselves neighbors. Otherwise it is not a legal move, but one of revenge. Best wishes.
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Scottie: I’m not sufficiently knowledgeable about geopolitics to venture far here, but I’m conscious that there have been lots of times when I found US foreign policy pretty reprehensible—as in two years ago. Now, I feel we’re acting with moral clarity, and the issue really does seem to be good v evil. Putin wants to wipe out Ukraine and its people and re-form the Russian empire. This should be a clarion call to the world, but the Biden administration has done an amazing job of lining up opposition even though it’s difficult for many of our allies in the West and elsewhere. And Putin’s expansionism, which included helping trump win election, is a direct threat to us, so our efforts are clearly in concert with our national security. That is, I think, the most important condition for the US to use in determining its foreign policy.
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Hello Annie. I agree the US and the nations helping Ukraine are on the moral high ground. I want more done to help the Ukrainians keep and regain control of all the parts of their country. I want the governments that helped do so much harm and destruction to have to pay for the reconstruction and to conduct war crime trials. Fighting on the side of and helping the Ukrainians is very important for them and the US. It is in our nation’s security interest, worldwide food interest, economic interest, and of course in the interest of democracy and people having rights. I did not mean to give the idea I was not fully supportive of helping the Ukrainians, my desire was to have the new frozen asset policy apply as a punishment to all nations that would invade or attack peaceful neighbors and take territory that belongs to others. And we have to have a starting date for the new policy, or we will be forever trying to right the wrongs of the past by aggressive land grabbing nations. I was thinking of the Invasion of the Kuril Islands on 18 August–2 September 1945 and China’s on going long time effort to claim the entire South (China) Sea. But to the question asked should we use frozen assets of attacking nations to help the nations attacked, yes. The policy should be if you break it, you fix it. Best wishes.
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Hi, Scottie. I understood your position with regard to Ukraine. I’m just less comfortable venturing far afield–knowing all the times our intervention, often with the stated intention to protect democracy, has made matters worse. I like the Biden administration’s determination to emphasize diplomacy as the wisest way to proceed on tricky international matters. I don’t know how often we could get away with unfreezing assets placed in our care because we’re believed to be a good economic steward before there were negative economic implications to us and others as well.
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Reblogged this on Scottie's Playtime and commented:
Annie has some really great ideas that could impact the war and Russia’s actions far more than the sanctions so far. The relief this could give Ukraine for the high debt it is incurring to save itself is something well worth looking at. I find it a very interesting idea.
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Thanks very much, Scottie. I saw you put in some meaty comments, which I’ll get to when I can give them the time and thought they deserve.
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