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A U.S. Law Required The White House To Respond To Navalny's Poisoning. Why Didn't It?

Russian opposition leader Aleksei Navalny poses with family members at Charite hospital in Berlin in September, shortly after he was brought out of an induced coma for Novichok poisoning.
Russian opposition leader Aleksei Navalny poses with family members at Charite hospital in Berlin in September, shortly after he was brought out of an induced coma for Novichok poisoning.

On September 8, six days after Germany’s chancellor publicly accused Russia of nearly killing Aleksei Navalny with a powerful Soviet-era nerve agent, two U.S. lawmakers wrote to President Donald Trump.

“This request triggers a required 60-day evaluation period,” the top Democrat and top Republican on the House Foreign Affairs Committee wrote, “and then, if a determination is made that chemical weapons were used, a sanctions process is laid out under the Act” -- a reference to a 1991 law informally known as the Chemical and Biological Weapons (CBW) Act.

“If the Russian government is once again determined to have used a chemical weapon against one of its own nationals, additional sanctions should be imposed,” they wrote.

Is Russia in violation of the Chemical Weapons Convention? Hell, yes.”
-- Former Assistant Secretary of State Christopher Ford

On November 8, the day that the 60-day window expired, there was silence from the U.S. government. A month later, a follow-up letter was sent by the same lawmakers.

As of January 20, when Trump’s presidency ended, there was still no word from the U.S. government about compliance with the law.

The question about what the Trump administration did -- or did not do -- regarding an event that many U.S. and European experts say constituted an attack with a secret chemical weapon is one of the less-examined mysteries of the administration’s waning days.

Current and former officials, arms control experts, and congressional officials point to a variety of explanations -- ranging from negligence to interagency bureaucratic wrangling to distraction due to the bitter U.S. presidential election campaign. Others offer a more troublesome theory: The Trump White House did not want to upset the Kremlin.

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Moreover, the inaction came even as the Trump administration in its final weeks levied new sanctions against China, Iran, Cuba, Venezuela, and Tanzania.

Asked if the administration’s failure to notify Congress one way or another constituted a violation of the law, one congressional aide told RFE/RL: “Basically, yes.”

On January 22, two days after President Joe Biden took office, the leaders of the House Foreign Affairs Committee invoked the CBW Act for a third time, accusing the Trump administration of violating the law.

“The United States, under the previous Administration…failed to comply with the CBW Act and ignored prior requests to report to Congress on the information the executive branch possess on the poisoning,” they wrote.

Christopher Ford, a former assistant secretary of state who ran the State Department bureau overseeing chemical weapons sanctions and similar arms control policies, said he had “no information to support the allegation that political considerations related to Russia” were the reason behind the administration’s inaction.

“The holdup was most likely one of Oval Office distraction, since at that point after the presidential election, election-related issues were sucking all the oxygen out of the room there,” said Ford, who resigned on January 8.

“It was probably just a question of bandwidth,” he told RFE/RL.

'Beyond A Doubt'

The question of the U.S. response to Navalny’s poisoning is back on the front burner, thanks in part to his arrest 10 days ago by Russian authorities and the protests that erupted a week later.

Navalny fell ill in Siberia in late August and was put in an induced coma and evacuated to Berlin. Within days, German doctors and military scientists determined he had been targeted with a substance related to Novichok, a powerful military-grade nerve agent first developed by the Soviet Union.

On September 2, German Chancellor Angela Merkel said that “the attempted murder with a nerve agent" of Navalny was “beyond a doubt.” The Organization for the Prohibition of Chemical Weapons -- the treaty agency of which Germany, the United States, and Russia are members -- confirmed the German conclusions about a month later.

In recent months, investigations by the open-source research group Bellingcat, Navalny’s own organization, and RFE/RL’s Russian Service have all unearthed evidence pointing to the possibility of a secret Russian chemical-weapons program, and an intelligence agency hit squad that specialized in targeting people with sophisticated poisons.

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The Kremlin has made multiple, strenuous denials: of having a secret chemical-weapons program; of having ordered intelligence agents to poison Navalny; and of the Novichok poisoning of former Russian military intelligence officer Sergei Skripal and his daughter in England in March 2018. A British woman who accidentally came into contact with the nerve agent died that July.

Navalny spent nearly five months in treatment and recuperation in Germany before flying back on January 17 to Moscow, where he was immediately arrested.

Before being ordered to serve 30 days in pretrial detention, he called on his supporters to take to the streets, which they did a week later, in the largest political protests that Russia has seen in years.

This wasn’t the first time that the U.S. government was faced with a major policy decision involving a chemical weapon. In March 2018, three weeks after Skripal and his daughter Yulia nearly died in England, the Trump administration kicked 60 Russian diplomats out, joining other European allies.

And in August, Secretary of State Mike Pompeo declared Russia had used a banned chemical weapon against Skripal, triggering several rounds of sanctions under the CBW Act.

Prior to the Skripal incident, the CBW sanctions had been invoked two times previously: in 2013, against Syria, and early 2018, against North Korea.

On September 4, however, Trump was asked by reporters about the German findings on Navalny.

“I don’t know exactly what happened. I think it’s -- it’s tragic. It’s terrible. It shouldn’t happen. We haven’t had any proof yet, but I will take a look,” he said.

'If Those Reports Prove Accurate'

Passed in 1991, the Chemical and Biological Weapons Control and Warfare Elimination Act was sparked by Iraqi leader Saddam Hussein's decision to use mustard gas and other chemical agents against the country's restive Kurdish population three years earlier.

It was also aimed in part to address concerns that some of the materials used in the Soviet Union's vast chemical- or biological-weapons programs might be smuggled out and end up being used by third countries, rogue groups, or terrorists.

Once a determination is made that a country has used a chemical weapon, the law requires the U.S. government to begin instituting sanctions, including things like financial asset freezes or ending foreign assistance or arms sales.

The law “is a valuable piece of legislation that gives the Biden administration a credible pathway to formally investigate the Navalny incident and to share the findings of its investigation with international partners,” said Julia Masterson, a nonproliferation researcher at the Arms Control Association, a Washington think tank.

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But the Trump administration made no formal determination that a chemical weapon had been used against Navalny. Nor did it respond to the congressional notifications.

In a statement on August 25, Pompeo said the United States was deeply concerned by “reported preliminary conclusions from German medical experts” that Navalny was poisoned. He said that Washington would support EU calls for an investigation and be ready to assist “if the reports prove accurate,” a condition that indicated the United States would take no immediate action.

When the German conclusions were later corroborated by France and Sweden, there was no new statement from the State Department or White House.

I think fundamentally that Trump didn’t care to take any action."
-- Brian O'Toole, former senior adviser at Office of Foreign Assets Control

“It is notable how quiet the White House and State Department under Trump have been on Navalny's poisoning and arrest,” said Gregory Koblentz, director of the Biodefense Graduate Program at George Mason University outside of Washington, D.C.

“The failure of President Trump to impose additional sanctions on Russia for the Navalny poisoning is consistent with the past pattern of the Trump administration refusing to confront Russia on key issues ranging from chemical-weapons use to election interference to cyberattacks,” he told RFE/RL.

Sanctions Applied 'Forthwith'

The letter sent to the White House on September 8, co-authored by the then-Democratic chairman of the House Foreign Affairs Committee, Eliot Engel, and the committee’s top Republican, Michael McCaul, was a formal legal trigger under the CBW, according to experts on both chemical weapons and the law itself.

A similar letter was sent by the top Republican and Democrat on the Senate Foreign Relations Committee about three weeks later.

According to experts familiar with the law, a report in response to the two congressional requests should have been filed by the Trump administration. And that report would have resulted in a formal determination as to whether or not a chemical weapon had been used. If so, the law requires sanctions to be applied “forthwith.”

Paramedics load a patient believed to be Aleksei Navalny into an ambulance for transport to the Charite hospital in Berlin on August 22.
Paramedics load a patient believed to be Aleksei Navalny into an ambulance for transport to the Charite hospital in Berlin on August 22.

So why didn’t the Trump administration impose the full range of sanctions on Russia, as it had previously, and as stipulated in the 1991 law? Why didn’t it even bother responding to the congressional letters?

“I tried to get an answer to this question for weeks,” said Andrea Stricker, a researcher at the Foundation for Defense of Democracies, another Washington think tank, “and it seemed that because President Trump did not make it a priority, there was cabinet-level drift on making the [legal] determination for Navalny's poisoning.”

Adding further to the mystery: Two U.S. government officials -- the top State Department official for proliferation issues and the U.S. ambassador to the chemical-weapons watchdog -- publicly accused Russia of having an undeclared chemical-weapons program, in two separate speeches given in the second half of November.

"I think fundamentally that Trump didn’t care to take any action. They were tremendously late in imposing CBW sanctions over Skripal and did the bare minimum required by law then," said Brian O'Toole, a former senior adviser at the Office of Foreign Assets Control, the agency of the Treasury Department that enforces sanctions.

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O'Toole, who is now a fellow at the Washington-based Atlantic Council, said the Trump administration could potentially have argued that its conduct was in line with the CBW law since it had already imposed sanctions on Russia for the Skripal poisoning and the process would essentially be "a do-over."

"It's a cop-out of course, but logically justifiable," he told RFE/RL, adding that "it’s still just another Trump policy failure on Russia -- to do nothing."

Ford, the former assistant secretary of state, told RFE/RL that sanctions were definitely in order against Russia for the Navalny poisoning.

“Is Russia in violation of the Chemical Weapons Convention?” Ford said. “Hell, yes.”

"The breathtaking range of Russia's bad acts in recent years…makes it very hard to imagine how Biden will be able to move forward with the kind of Russia 'reset' that most new administrations try to have,” he said. “Unless and until the Kremlin's behavior improves a lot, we're probably pretty stuck in a tough period of ugly competitive rivalry."

Biden's Intentions

Multiple State Department and other Biden administration officials, speaking on condition of anonymity, have told RFE/RL that the Biden White House aims to make the two issues -- arms control and Navalny -- priorities for its policy toward Russia.

In fact, less than two hours after Navalny was arrested at Moscow’s Sheremetyevo Airport on January 17, Biden’s incoming national-security adviser, Jake Sullivan, posted a statement of support for the Russian activist -- a statement that even beat the State Department’s own official condemnations of Navalny’s arrest.

The State Department did not respond directly to questions from RFE/RL about why the United States hasn’t responded to the congressional inquiries and imposed sanctions within the allotted time frame. The Treasury Department did not respond to an e-mail seeking comment.

A State Department spokesman also directed an RFE/RL reporter to a statement issued by White House spokeswoman Jen Psaki on January 21 that referenced not only Navalny but also the massive cyberhack of U.S. government agencies and reports that Russian intelligence had helped pay for Afghan militants to kill U.S. troops.

On January 26, Biden spoke with Russian President Vladimir Putin for the first time since Biden’s election in November. The Kremlin issued a statement that highlighted plans to extend the New START nuclear arms-control treaty, which is due to expire on February 5.

The White House statement mentioned New START and broader arms-control issues but also said Biden had raised “matters of concern,” including Ukrainian sovereignty, the cyberhack, election interference, and the Afghan bounties issue.

And “the poisoning of Aleksei Navalny.”

With reporting by Mike Eckel from Prague and by Todd Prince from Washington
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    Mike Eckel

    Mike Eckel is a senior correspondent reporting on political and economic developments in Russia, Ukraine, and around the former Soviet Union, as well as news involving cybercrime and espionage. He's reported on the ground on Russia's invasion of Ukraine, the wars in Chechnya and Georgia, and the 2004 Beslan hostage crisis, as well as the annexation of Crimea in 2014.

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    Todd Prince

    Todd Prince is a senior correspondent for RFE/RL based in Washington, D.C. He lived in Russia from 1999 to 2016, working as a reporter for Bloomberg News and an investment adviser for Merrill Lynch. He has traveled extensively around Russia, Ukraine, and Central Asia.

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