Basketball star Brittney Griner.Photo credit: Lorie Shaull, CC wikimedia commons

Hostage Diplomacy and the Case of Brittney Griner

Brittney Griner is an American basketball superstar. On February 17th, she was arrested in an airport outside of Moscow allegedly for possession of cannabis oil. She has been held in a Russian jail ever since and her trial is scheduled to begin on July 1.

Brittney Griner’s case is a text book example of what my guest today, Dani Gilbert, calls “Hostage Diplomacy.” Dani Gilbert is an Assistant Professor of Military and Strategic studies at the US Air Force Academy. She is a leading researcher and expert on the causes and consequences of hostage taking in international security.

We kick off discussing the circumstances of Brittney Griner’s arrest and detention in Russia and then have a conversation about how the US government approaches situations in which an American abroad is wrongfully detained. This leads us to a broader discussion about trends in hostage diplomacy around the world.

 

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Transcript lightly edited for clarity

Why is Brittney Griner Being Detained in Russia?

Mark L. Goldberg [00:02:19] Now, here is my conversation with Dani Gilbert of the U.S. Air Force Academy. I know that you have a disclaimer you must make.

Dani Gilbert [00:02:30] Thanks so much, Mark. So, while I am employed by the U.S. Air Force Academy, I’m speaking today in my personal capacity. My views do not represent the U.S. Air Force Academy, the Department of the Air Force, or the Department of Defense.

Mark L. Goldberg [00:02:44] Okay. So, with that, I want to kick off by having you explain what we know so far about the circumstances of Brittney Griner’s arrest and detention.

Dani Gilbert [00:02:58] Brittney Griner was arrested on February 17th in an airport outside of Moscow. She was traveling because in the off season, she, like many other WNBA players, play for the European League where they actually make much more money than they do playing for the WNBA at home. She was arrested going through airport security and they found allegedly a trace of hash oil in her luggage, which can be conveyed by the Russian government as drug trafficking with a possible sentence of up to ten years. So, if you’re paying attention to the calendar, you might know that February 17th was just one week before Russia invaded Ukraine at the start of the war. So, we didn’t hear anything about her arrest or about her detention for several weeks after she was arrested. So, the news finally broke on March 5th that she had been arrested several weeks prior. And since that time, she has been in prison in Russia. She’s had multiple hearings that have been postponed and delayed, and she will finally face trial on Friday, July 1st.

What are the conditions of Brittney Griner’s detention in Russia?

Mark L. Goldberg [00:04:22] What do we know about the circumstances of her detention? I mean, she is arguably like the highest profile American being held abroad in a situation like this. A gold medalist, a basketball superstar, also being held in a country hostile to LGBTQ people, of which she is. What do we know about her detention?

Dani Gilbert [00:04:47] All reports indicate that she is doing as well as she could under these really just devastating circumstances. She is not being given any special treatment. She’s being held in prison, not under house arrest or anything like that. She has had several consular visits, though at times those have been denied and she has a team of two Russian lawyers. Now note those are not court appointed lawyers. Those are lawyers who were selected and vetted by her representation in the United States and so they are working on her case. But it’s a horrible circumstance, Mark. I mean, she, as you mentioned, is not only an American detained in a country that is arguably hostile to Americans, but certainly a country that is going to be hostile to a black LGBTQ American. And so, it’s just a really horrible circumstance.

What is the United States doing to get Brittney Griner released from Russian detention?

Mark L. Goldberg [00:05:47] What has been the American response thus far since February 17th, her arrest, and the subsequent publicity around her arrest, which started on March 5th?

Dani Gilbert [00:06:00] Sure. So, at first, the circumstances around her arrest were silent, completely quiet and part of that is a possible logic that by talking about her case, by publicizing her case, that it might have raised the stakes in her trial. The ideal scenario, once she had gone through this horrible arrest, would be that the Russian government admits that the whole thing had been a mistake and had been a misunderstanding and lets her go and she would come home in health and safety but that didn’t happen. And between March 5th, when we first learned about her arrest and several months later in May, the U.S. government really changed how it was talking about and classifying her case. So, in May, the U.S. government classified her arrest as a wrongful detention. Americans are arrested abroad very frequently when they break the law in foreign countries and the U.S. government often doesn’t do anything to intervene in those cases. The American would receive visits from consular affairs, but we allow those cases to play out through other countries criminal justice systems. When the State Department classifies an American as wrongfully or unlawfully detained, it signifies that the U.S. government thinks that there is something wrong in the case, that we don’t trust that the criminal justice system will treat that American fairly. There’s a whole list of criteria by which the State Department makes that designation, and it really runs the gamut. So, the State Department might designate an arrest as a wrongful detention if they think that the American is not receiving a fair trial or if there’s credible evidence that the American is actually innocent of the crimes that that they’ve been accused of committing. That designation might also come if the U.S. government thinks that the American is being held as a hostage, that they’re being held for leverage, or if the State Department’s own human rights reports indicate that we don’t expect that the American would get fair treatment in prison. So, for any of those reasons — and we don’t know which one necessarily was the relevant one in Britney Griner’s case — for any of those reasons, the United States might redesignate the case as a wrongful or unlawful detention.

What is the Special Presidential Envoy for Hostage Affairs (SPEHA) and how does it relate to Brittney Griner?

Mark L. Goldberg [00:08:35] And as a consequence of redesignating the case, in my understanding is that it moves from the State Department to a special office in the White House. Is that correct?

Dani Gilbert [00:08:46] Very close. So, it actually moves from one office in the State Department to another office in the State Department.

Mark L. Goldberg [00:08:53] Consular affairs to something special?

Dani Gilbert [00:08:56] Exactly. It moves from Consular Affairs, whose job is simply to pay attention to the welfare of Americans abroad, to the special presidential envoy for hostage affairs, otherwise known by the acronym SPEHA and the SPEHA is an office in the State Department. The presidential envoy is the chief U.S. diplomat who is responsible for diplomatic negotiations and conversations about Americans who are wrongfully detained or taken hostage abroad.

Who was Robert Levinson and what is the Robert Levinson Accountability Act?

Mark L. Goldberg [00:09:30] And this is all articulated in a law that I knew you had a hand in helping to craft: the Robert Levinson Accountability Act. Can you just describe who is Robert Levinson or who was Robert Levinson? And what does this act say and why was it created?

Dani Gilbert [00:09:55] Sure so Robert Levinson was an American who went missing, taken captive in Iran back in 2007. He was missing for a very, very long time. And several years ago, when the U.S. government became clear that they no longer expected that Robert Levinson was going to be coming home safely or alive, several members of Congress wanted to work on something to honor his memory, to support his family, and to help ensure that these kinds of cases are really not happening again. So, the Robert Levinson Hostage Recovery and Hostage Taking Accountability Act really takes on a wide range of subjects across the hostage taking spectrum. So, one of the things that the act did was to codify an executive order and a presidential policy directive written by President Obama back in 2015 that set up government infrastructure to help with kidnaping cases. So, when Americans are taken hostage by non-state groups like rebels, terrorists, and criminals. That original presidential policy directive 30 back in 2015 created an interagency organization that dealt with operational hostage recovery efforts. It set up a special office in the National Security Council, and it first set up the special presidential envoy for Hostage Affairs Office, the Robert Levinson Act, first codified all of those things, added a list of sanctions that could be put on anyone who is responsible for taking any sort of hostages and laid out a list of the criteria that I was mentioning before for when an American who was arrested abroad should be taken out of the purview of the Consular Affairs Office and moved into the Special Presidential Envoy for Hostage Affairs responsibility. Essentially, when we think that an American is not just arrested but is plausibly taken hostage by a state.

Mark L. Goldberg [00:12:11] Essentially this act creates an infrastructure in the U.S. foreign policy bureaucracy to deal with cases exactly like Brittney Griner’s case where you’re not talking about like an American who stole a car in Paris, but someone who, like Brittney Griner, is transparently being held for political or spurious reasons.

Dani Gilbert [00:12:33] Precisely.

What is hostage diplomacy?

Mark L. Goldberg [00:12:35] How does this case of Brittney Griner being detained in Russia right now fit into broader trends around what you’ve identified and defined as hostage diplomacy?

Dani Gilbert [00:12:50] Sure. So, in my research, I define hostage diplomacy as what happens when a state uses its criminal justice system to arrest a foreigner and use them for foreign policy leverage. So, it might look like an arrest, but essentially, it’s a hostage taking committed by a state. And people who watch this area closely have suggested that in recent years that kidnaping has really decreased around the world, that Americans are far less likely now to be kidnaped by a non-state actor like a criminal, rebel, or terrorist, than they were a handful of years ago. And that instead, this phenomenon that’s on the rise of hostage diplomacy is that Americans are being arrested unlawfully or wrongfully for leverage by states. And some of the perpetrators that might sound familiar to your listeners of these kinds of cases include Russia, include China, North Korea, Iran, Venezuela, Cuba, and Turkey are often the states that that most come to mind. And these cases have really risen in prominence in recent years. It’s hard to know precisely about the numbers and so many of kidnaping cases and hostage diplomacy cases are never reported publicly. It also might seem that now that we have a name for this phenomenon, that we are more likely to see it. But the kind of aid and advocacy organizations who support families of victims of these sorts of crimes have reported that in recent years they are far less likely to be helping families of kidnaping cases and much more likely to be assisting families whose loved one have been arrested wrongfully by states. And so, this phenomenon certainly seems to be on the rise.

What do countries often demand when they take an American hostage or unlawfully detain an American?

Mark L. Goldberg [00:14:48] What’s fascinating, I think, about what you described is that the countries that engage in hostage diplomacy, countries like Russia and China are strong countries are strong powers but you’re also talking about some middle powers as well, Iran or even weak powers like Venezuela and North Korea that have done this. My question is, when you are a country like China or like Russia, how do your demands for the release of the hostages differ then, if you are a country like North Korea or Iran? Are bigger countries asking for, say, one set of things like a prisoner swap, whereas smaller or middle power countries are asking for more policy changes?

What was the “two Michaels” case between China and Canada?

Dani Gilbert [00:15:37] What an interesting question. So, one of the tricky things about hostage diplomacy is that states often don’t make their demands explicit and thinking about the way that you ask that question, I would actually suggest that the more powerful a state is, the less likely they are to explicitly request demands. The demands are more often implied rather than put on the table explicitly. But one meaningful difference that we can talk about across these different countries that are using arrest of foreigners for foreign policy leverage is some states really like to use hostage diplomacy for one on one really straightforward prisoner swaps. So, they’ll arrest an American and the hope is that they will be getting one of their nationals back in return. So, there are currently two Americans wrongfully detained in Russia. That’s Brittney Griner and Paul Whalen. Recently, a couple of months ago, another American who was arrested in Russia in 2019, Trevor Reed, was released. And Trevor Reed went home in exchange for one Russian who had been imprisoned in the United States. So, one for one prisoner swap. Another recent pretty famous case was when China arrested two Canadian citizens in what seemed like a tit for tat when Canada arrested Meng Wanzhou, the CFO of Weiwei.

Mark L. Goldberg [00:17:13] I’ve done a whole episode on that case and that case prompted my question to you, because you had China seemingly like very transparently arresting two prominent Canadians, Michael Kovrig and Michael Spavor, the two Michaels, as they’re known, in retaliation to the Canadians, seemingly agreeing to an extradition request from the United States for this Weiwei executive, it seemed like just got very transparent, you know, tit for tat.

Dani Gilbert [00:17:46] Oh, absolutely. I mean, to observers, this seemed incredibly transparent. What is interesting is that throughout the entire ordeal, the Chinese government, the Canadian government, the U.S. government denied that when Meng was released from Canada and the two Michaels came home, they denied that those actions were linked. And so even though it might seem so obvious to us watching that case, especially the timing of the arrests, the timing of the hearings and kind of every step that unfolded in that case, it really seemed obvious that this was a tit for tat, the Chinese never came out and said, this is a hostage taking and we want our citizen back in exchange for yours. So, it’s kind of the pretense of law that is the most important thing for these countries. In these cases, they have to pretend that it’s been a legitimate arrest and a legitimate trial.

Who is Jason Rezaian and why was he arrested in Iran?

Mark L. Goldberg [00:18:45] On the other hand when you have Americans detained in North Korea or you have the case of Jason Rezaian, the Washington Post reporter, detained in Iran, they weren’t released in exchange for Iranians held in America or North Koreans held in America. There were released as part of broader diplomatic entreaties, right?

Dani Gilbert [00:19:10] Mm hmm, so the less powerful countries that are using this tactic are asking for much more. They are attacking the release of Americans onto much larger diplomatic deals. So, you mentioned Jason Rezaian, who is a Washington Post reporter, who was the Tehran bureau chief in Iran, and he was arrested in Iran and held in Evin Prison and was there for years. He was ultimately released as part of the 2015 JCPOA, the Iran deal. And so, he and other Americans came home. Actually, there were Iranian prisoners in the United States who were released as part of that deal, but the more notable part of that deal was the entire Iran deal. There was huge diplomatic negotiations around nuclear policy, around debts that had to be paid, it was a much, much broader deal. And so, the less powerful countries are typically asking for much more.

What can the Special Presidential Envoy for Hostage Affairs (SPEHA) and the Richardson Center do to get Brittney Griner released?

Mark L. Goldberg [00:20:19] That brings us to Russia, a powerful country currently in a conflict that is directly at odds with the United States and the rest of the West. Yet, as you said earlier, even in the midst of this conflict, another American was released, Trevor Reed, that seemingly suggests that Russia, despite its conflict in Ukraine and hostilities with the United States, is willing and open to these kinds of deals. What do you suspect is going on in that SPEHA office, that office that was created as a result of that Robert Levinson act within the State Department in terms of its advocacy for Griner’s release?

Dani Gilbert [00:21:08] So I say the release of Trevor Reed as a fantastic sign for multiple reasons. First of all, it’s amazing for Trevor Reid and for his family that he got to come home and beyond his case, it’s also a good sign that it means that despite the obvious tensions right now between the United States and Russia, that there is a backchannel conversation happening, that there are diplomatic engagements, and that it is still possible to work out some sort of deal despite the ongoing war that the United States so clearly opposes. So that was a very good sign for Brittney Griner and for Paul Whalen. That means that those conversations are still happening. So once the case is referred to the SPEHA office, it means that their office starts to get to work to figure out a way to bring the American home. There are actually two teams working on her release right now so not only has her case been referred to the SPEHA office, but a former ambassador, former Governor Bill Richardson and the Richardson Center are also working on her case, and their organization works on hostage and detainee release cases. They’ve very successfully negotiated the release of a lot of American hostages and prisoners abroad. And so, in addition to the U.S. government trying to figure out what kind of deal might be necessary to bring her home, that Governor Richardson is also hard at work on this case.

Mark L. Goldberg [00:22:42] And I’ve actually had Governor Richardson, Ambassador Richardson on this show to discuss his work in securing the release of hostages abroad but I’d love to hear from you the unique role that he can play and the things that he can do in situations like this that the U.S. government cannot.

Dani Gilbert [00:23:03] Sure. So, I see a real benefit in bringing someone like Richardson in on these cases, because the benefits of a third party who, first of all, has the track record of success, is known around the world, has these existing relationships, is going to make getting those meetings easier off the bat. Their organization really focuses on the humanitarian aspect of prisoner releases and, you know, I think emphasizing to these countries that to be seen and respected on the world stage as a great power, you shouldn’t be taking foreigners hostage. Another benefit for the Richardson Center working on these cases is that they can take meetings with individuals that the United States government might consider unsavory to meet with. They can really go outside the box and creatively brainstorm the kinds of concessions, the kinds of options that the United States government might be unwilling or unable to provide. And so, it’s always great to have that kind of representation in a negotiation that are really willing to explore the mutually agreed options with your adversary sitting across the table. I always think it’s a really good sign when they get involved.

Mark L. Goldberg [00:24:29] He can meet with anyone and isn’t constrained by any U.S. government policy because he’s a private citizen.

Dani Gilbert [00:24:37] Precisely.

Who is Viktor Bout and could he be released from the US as a trade for the release of Brittney Griner?

Mark L. Goldberg [00:24:38] On specifically the Griner case, we had Trevor Reed released in April as part of a prisoner swap. I believe the Russian for whom he was exchanged was someone convicted in the U.S. federal court for drug smuggling. There’s also talk, it seems, that Russia is seeking the release of Viktor Bout, who is this very notorious international arms smuggler. I think there’s like this terrible Nicolas Cage movie based on his exploits but he’s just this notorious guy in human rights circles for fueling all sorts of armed conflicts around the world. He was finally arrested and is sitting in U.S. federal prison somewhere and I’ve seen reports that Russians are seeking his release. He is very high profile. Brittney Griner is very high profile. Do you see that exchange as something the United States would tolerate?

Dani Gilbert [00:25:40] That’s a really hard question. So, you know, it’s no surprise to me that the Russians would be floating Viktor Bout for a prisoner swap. And to be clear, this didn’t come as a statement or a demand explicitly from the Russian government but there have been reports in state owned media in Russia that have floated that this is the deal that the Russians want. So, I think we can be confident that this is indeed something that is coming from the top in Russia. There are really, really difficult considerations to make in these kinds of cases and it’s plausible that the United States government is considering this as part of the conversation. I think typically they will be looking for any sort of deal that will make least damage possible and when we’re talking about a super violent criminal with such a track record of aiding and spreading conflict, that’s a really tough pill to swallow. So, I think that it’s really tough, but I’m not surprised that the Russians would float his release. That’s been something that they’ve been asking for a very long time and the U.S. government seemed to find someone else to exchange for Trevor Reed. And so, you know, I would hope that that kind of possibility is on the table instead. There’s a real tradeoff when we talk about these kinds of prisoner swaps. On the one hand, it’s the most obvious way to bring an American home. The concessions work, and that’s how you get someone home safely but there are huge costs and risks to making prisoner swaps, which is that it’s returning violent criminals often to our adversaries; it rewards bad behavior; and it could possibly incentivize future wrongful arrests to incentivize future prisoner swaps as well.

What is the next step in Brittney Griner and Paul Whelan’s cases and negotiations?

Mark L. Goldberg [00:27:52] Lastly, in the coming weeks or even months, are there any events or indicators or inflection points that you’ll be looking towards that will suggest to you whether or not Brittney Griner is closer to coming home and Paul Whalen is closer to coming home?

Dani Gilbert [00:28:13] So the trial that is starting on July 1st is maybe meaningless in terms of criminal justice but can be an inflection point in the negotiations themselves. So, the trial is scheduled to last for weeks, if not months so I don’t think that we will have a legal resolution any time soon but what happens when she faces trial is that what was previously a hypothetical, that if we don’t come up with some sort of deal to bring her home, then she could face up to ten years in a penal colony being accused for allegedly international drug trafficking. That that suddenly becomes much more real once the trial is really happening and reporting suggests that fewer than 1% of cases in Russian criminal court are actually acquitted. We shouldn’t be looking to this as a fair trial where something good might come out of it, but I think it does put pressure to work on those negotiations quickly and to bring them home. I’m hoping that Brittney Griner and Paul Whalen will come home very, very soon and that it’s still possible that their release might be part of a broader deal that was part of the deal that brought Trevor Reed home and we just haven’t seen that whole thing play out yet— that that might be something that we only can see in retrospect, so I am hopeful. These cases, unfortunately, often take a very, very long time, months, if not years. So, I am thinking constantly of her and her family and her team as they work through this and hoping that the United States government and that the Richardson Center are doing everything, they can to bring this to a resolution quickly.

Mark L. Goldberg [00:30:15] You suspect, though, that Russian demands are around the release of Russians, not around, say, the lifting of any sanctions.

Dani Gilbert [00:30:24] It’s a really good question. So, they very well might be, and I think that the fact that Russia is currently in this war with Ukraine, in this unjustified invasion of Ukraine, really adds a complication to the story. And so, we haven’t seen that kind of demand floated in the news but, you know, given these past deals that we’ve seen with Iran, with Cuba, with North Korea over bringing home American prisoners, it would not surprise me if that were on the table as well.

Mark L. Goldberg [00:30:58] Well, Dani, thank you so much for your time and expertise. This is really helpful.

Dani Gilbert [00:31:03] Thank you so much for having me.

Mark L. Goldberg [00:31:06] All right. Thank you all for listening. Thank you to Dani Gilbert and thank you to the Carnegie Corporation of New York. Today’s show was produced in partnership with the Carnegie Corporation of New York. The views and opinions expressed belong solely to those of us who expressed these views and opinions. All right. We’ll see you next time. Thanks, bye!

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