To like many professional basketball playersGriner competes overseas in the offseason, earning exponential income higher salary than she does at home. Griner’s arrest comes as US-Russian tensions rise after more than two months of war in Ukraine.
The State Department’s announcement marks a significant shift in Griner’s case. Calling her “wrongfully detained,” the US government signaled that it would not wait for the Griner case to make its way through the Russian justice system. Instead, the US government has publicly declared its intention to bring the WNBA star home.
What does “wrongfully detained” mean?
In 2020, Congress passed the Robert Levinson Hostage Recovery and Accountability Act, which codified how the U.S. government handles international abduction and detention cases. Two elements of this law are relevant to understanding Griner’s case. (Full disclosure: I provided drafting advice on this legislation.)
First, the law directs the U.S. Secretary of State to review pending international detention cases to determine whether Americans are “unlawfully or wrongfully detained.” It is not uncommon for a US citizen to be arrested after breaking laws abroad. But when the State Department deems an arrest “unlawful or abusive,” it signals that the US government has credible information that the arrest is invalid or that the American will be treated unfairly.
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US law offers several criteria define an arrest as “wrongful or illegal”. A detention may be unlawful if an American is detained “solely or primarily because he is a national of the United States” or if the American has been arrested for purpose of obtaining concessions of the US government. Alternatively, the Secretary of State may call an international detention “unlawful” simply because the State Department’s own annual human rights reports call into question the credibility and fairness of the country’s justice system. detainee, or if the U.S. government believes the prisoner is not receiving humane treatment.
Would the Griner case meet these criteria? The State Department 2021 Human Rights Report on Russia offers ample evidence of arbitrary arrests and trials, torture, life-threatening prison conditions, and targeted violence against LGBTQ people. For all of these reasons, the US government may be concerned about Griner’s safety.
Second, the Levinson Act codified the office and responsibilities of the Special Envoy of the President for Hostage Affairs (SPEHA). This office is headed by a head of US diplomacy responsible for raising the profile of Americans abducted or detained abroad. The Levinson Act provides a mechanism to refer cases of unlawful detention to the jurisdiction of SPEHA, rather than the Department of State. Consular Affairs Bureau, whose oversight is limited to the welfare and protection of Americans abroad.
This marks a crucial change. In transferring Griner’s case to SPEHA, the State Department signaled that the U.S. government would now be actively working to bring Griner home. Special envoys played a key role in the safe release of Americans like Trevor Reed, a US Marine Corps veteran released from Russia last week, and the rapper’s 2019 release A$AP Rockydetained in Sweden for assault.
Is Russia Holding Griner Hostage?
Given the continuing bilateral tensions, some have speculated that Russia is holding Griner hostage. The State Department designation doesn’t go that far, but we can’t rule it out yet.
If Griner was a hostage, we would probably expect the Russian Federation to explicitly request her release. When Americans Paul Whelan and Trevor Roseau were arrested in 2018 and 2019, the Russian government has made it clear that the release two Russian prisoners held in the United States would liberate the Americans. This is an example of what the co-author Gaelle Rivard Piche and I call “hostage diplomacywhen countries take hostages under the guise of national laws to use as leverage in foreign policy.
The Russian government has not made public a similar prisoner exchange request for Griner. With the war going on, it’s possible they’ll use it as bargaining leverage.
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The “illegally detained” designation opens up several avenues for resolving the Griner case. First, the American special envoy could lead international negotiations to obtain the release of the basketball star. The best-case scenario would be for Griner to return soon and unconditionally, with the Russian government admitting the arrest was a mistake.
A more likely scenario would involve lengthy government negotiations, with Russia demanding certain concessions to secure his release. In past cases, Americans have returned home after the US government released prisoners in an exchange – or made much broader concessions, including paying ransoms, waiving punishments and expand diplomatic recognitionwhich the United States takes nothing lightly.
It’s not a terrorist kidnapping, so there’s no legal prohibition in the United States on concessions. Multiple presidential administrations have made concessions to repatriate American prisoners from Cuba, Egypt, Iran, North Korea, Russia, Syria and Turkey. It’s possible that Griner (and Paul Whelan) could be freed as part of a prisoner swap or larger diplomatic deal.
In addition to the State Department’s SPEHA, another high-level negotiator is at work on the Griner affair: the former Ambassador Bill Richardson. Richardson and his organization played a pivotal role in brokering the release of dozens of Americans held overseas, including Xiyue Wang from Iran, Danny Fenster of Myanmar and the insensitive Otto Warmbier from North Korea. That, too, is a promising sign for Griner. Because they do not represent the US government, the Richardson Center can often negotiate concessions that the US government would find unsavory.
The American public and media are paying close attention to Griner’s case. But dozens of other Americans are illegally imprisoned abroad, and these cases rarely receive national attention. Family, teammates and Griner fans are now joining the legions of Americans who are waiting months, if not years, to see their loved ones come home.
Danielle Gilbert (@_danigilbert) is assistant professor of military and strategic studies at the US Air Force Academy and nonresident scholar at the Modern War Institute at West Point. The opinions expressed in this article are those of the author and do not reflect the official policy or position of the United States Air Force Academy, the Air Force, the Department of Defense, or the United States Government.