Is Stephanie Griner “Wrongfully Detained” in Russia?

July 17, 2022

Tags: Consular, hostage, Paul Whelan, Robert Levinson, Russia, Stephanie Griner, WNBA, wrongfully detained
Posted in: Democracy, Embassy/State

The U.S. State Department estimates more than 3,000 Americans are imprisoned abroad, on grounds ranging from small amounts of marijuana up to murder. For all but a handful, the U.S. government explicitly states they cannot get you out of jail, tell a foreign court or government you are innocent, provide legal advice or represent you in court. The president certainly is not in the habit of making calls to the Thai government telling them to please let you go, you didn’t mean to have that baggie of Ecstasy in your underwear at Customs.

The key to getting the full force of the U.S. government on your side working for your release is to be “wrongfully detained,” a qualification which applies to fewer than 40 out of those 3,000 some Americans locked up. The U.S. recently declared Stephanie Griner wrongly detained. What does all that mean?

Near the start of the Ukraine war American WNBA star Stephanie Griner was arrested trying to enter Russia carrying vape oil which contained some sort of cannabis product illegal in Russia, entangling the U.S. citizen’s fate in the confrontation between Russia and the West. The Russian Federal Customs Service said its officials detained the player after finding vape cartridges in her luggage at Sheremetyevo airport near Moscow, and it released a video of a Griner going through airport security.

Normally Griner would be largely on her own. While the U.S. State Department visits Americans incarcerated abroad when that is possible (good luck to you if you’re popped in a country without U.S. diplomatic presence like Iran or North Korea, though the Swiss often will help out) to see to their welfare and try and maintain communications with home, the U.S. government will generally not get involved with your innocence or guilt, and will not make representations to the host government to free you. Most of us have seen Midnight Express and The Hangover. In the case of Russia, the U.S. specifically warns people like Stephanie Griner “do not travel to Russia due to the unprovoked and unjustified invasion of Ukraine by Russian military forces, the potential for harassment against U.S. citizens by Russian government security officials, the singling out of U.S. citizens in Russia by Russian government security officials including for detention, the arbitrary enforcement of local law, limited flights into and out of Russia, and the Embassy’s limited ability to assist U.S. citizens in Russia.”

Worse yet, it looks like Griner did really have that illegal substance in her possession. She just pleaded guilty in front of a Russian court. In almost every such instance she’d be on her own, but for one exception: the recent declaration by the United States that Griner is somehow “wrongly detained.”

The wrongfully detained category grew out of a realization that a small percentage of Americans arrested abroad were indeed political prisoners, arrested abroad under a country’s (unjust) laws, or were being held beyond the normal sentence or conditions for political reasons. In other words, hostages. If a person is declared “wrongfully detained” by the U.S., the rules do a 180 and the full powers of the U.S. government are used to free you.

Congress passed the “Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act,” named after the American missing in Iran for over 15 years. The 2020 law establishes 11 criteria for a wrongful detention designation, any one of which can be a sufficient basis to secure the detainee’s release, including “credible information indicating innocence of the detained individual,” “credible reports the detention is a pretext for an illegitimate purpose,” “the individual is being detained solely or substantially to influence United States Government policy or to secure economic or political concessions from the United States Government,” or a conclusion that U.S. “diplomatic engagement is likely necessary.” Secretary of State Blinken must personally approve such a designation, and transfer responsibility for the case from the State Department’s Bureau of Consular Affairs (disclosure: where I worked for 22 years) to the Office of the Special Envoy for Hostage Affairs.

What is next for Griner now that she has been declared wrongfully detained? Depending on the political goals of the Russians, her guilty plea may suffice. A Russian court will impose a fine or jail sentence to be waived, and Griner can be on her way home. This is most common when the American has harmed a host country national and some public “justice” needs to be seen being done. A similar outcome often arises out of humanitarian needs, where Griner is declared in need of medical care not available in Russia and the country sends her home as an act of good will.

But given the politics of Griner’s arrest, a very likely outcome will be a prisoner exchange. The Russians are interested in the release of Viktor Bout, sentenced to 25 years in an American prison for trying to sell heavy weapons to Colombian terrorists. This would track with diplomacy just this April that lead to the exchange of Trevor Reed, a former Marine who had been held for more than two years over a bar fight, and Konstantin Yaroshenko, a Russian pilot serving a 20-year federal prison sentence for drug smuggling. Reed’s health was cited as the motivator for the swap. One problem stands in the way of Griner’s release: it would be domestically politically difficult for the U.S. to again leave behind Paul Whelan, another former Marine, arrested in 2018 on espionage charges and sentenced to 16 years in prison, for Griner.

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