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Brittney Griner was ‘wrongfully detained.’ What happens now?

The State Department announcement gives the U.S. government ways to negotiate for the release of the WNBA star

- May 5, 2022

The State Department announced in early May 2022 that it had “determined that the Russian Federation has wrongfully detained U.S. citizen Brittney Griner.” The WNBA star and two-time Olympic champion has been in Russian custody since February, when officials detained her and accused her of transporting illegal narcotics through international customs – a charge that in Russia could carry a 10-year prison sentence.

Like many professional female basketball players, Griner competes overseas during the offseason, earning an exponentially higher salary than she does at home. Griner’s arrest comes during increasing U.S.-Russia tensions after more than two months of the war in Ukraine.

The State Department announcement marks a significant shift in Griner’s case. In calling her “wrongfully detained,” the U.S. government signaled it will not wait for Griner’s case to work its way through the Russian legal system. Instead, the U.S. government 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 Hostage-Taking Accountability Act, which codified how the U.S. government handles international kidnapping and detention cases. Two elements of this law are relevant for understanding Griner’s case. (Full disclosure: I provided some drafting advice on this legislation.)

First, the law calls for the U.S. secretary of state to review ongoing international detention cases to determine whether Americans “are being detained unlawfully or wrongfully.” It’s not unusual for a U.S. citizen to face arrest after breaking laws abroad. But when the State Department deems an arrest “unlawful or wrongful,” it signals that the U.S. government has credible information that the arrest is invalid or that the American will be treated unfairly.

The U.S. law offers several criteria to define an arrest as “wrongful or unlawful.” A detention might be unlawful if an American is being detained “solely or substantially because he or she is a United States national” or if the American was arrested for the purpose of extracting concessions from the U.S. government. Alternately, the secretary of state may label an international detention “unlawful” simply because the State Department’s own annual human rights reports question the credibility and fairness of the detaining country’s judicial system, or if the U.S. government believes the prisoner is not receiving humane treatment.

Would the Griner case meet these criteria? The State Department’s 2021 human rights report on Russia offers extensive evidence of arbitrary arrests and trials, torture, life-threatening prison conditions and targeted violence against LGBTQ individuals. For any and all of these reasons, the U.S. government might worry for Griner’s safety.

Second, the Levinson Act codified the office and responsibilities of the special presidential envoy for hostage affairs (SPEHA). This office is headed by a chief U.S. diplomat charged with raising the profile of Americans kidnapped or detained abroad. The Levinson Act provides a mechanism to refer unlawful detention cases into SPEHA’s purview, rather than the State Department’s Consular Affairs Bureau, whose oversight is limited to welfare and protection of Americans overseas.

This marks a crucial change. By moving Griner’s case to the SPEHA, the State Department has signaled that the U.S. government will now actively work to bring Griner home. Special envoys have played a key role in the safe release of Americans like Trevor Reed, a U.S. Marine Corps veteran released from Russia last week and the 2019 release of rapper A$AP Rocky, who was held in Sweden on assault charges.

Is Russia holding Griner hostage?

Given the ongoing bilateral tensions, some have speculated that Russia is holding Griner hostage. The State Department’s designation does not go that far, but we cannot yet rule it out.

If Griner were a hostage, we would probably expect the Russian Federation to make explicit demands for her release. When Americans Paul Whelan and Trevor Reed were arrested in 2018 and 2019, the Russian government made it clear that releasing two Russian prisoners in U.S. custody would set the Americans free. This is an example of what co-author Gaëlle Rivard Piché and I call “hostage diplomacy,” when countries take hostages under the guise of national law for use as foreign policy leverage.

The Russian government hasn’t made public a similar prisoner exchange demand for Griner. With the ongoing war, it’s possible they will use her for bargaining leverage.

What happens now?

The “unlawfully detained” designation opens up several ways to resolve the Griner case. First, the U.S. special envoy may lead international negotiations to secure the basketball star’s release. The best-case scenario would be for Griner to come home soon and unconditionally, with the Russian government admitting the arrest was a mistake.

A more likely scenario would involve protracted government negotiations, with Russia demanding some concessions to win her release. In past cases, Americans have come home after the U.S. government released prisoners in an exchange – or made far broader concessions, including ransom payments, lifting sanctions and expanding diplomatic recognition, none of which the United States takes lightly.

This isn’t a terrorist kidnapping, so there are no U.S. legal prohibitions on making concessions. Multiple presidential administrations have made concessions to bring American prisoners home from Cuba, Egypt, Iran, North Korea, Russia, Syria and Turkey. It’s possible that Griner (and Paul Whelan) could be released as part of a prisoner exchange or a larger diplomatic deal.

In addition to the State Department’s SPEHA, another high-profile negotiator is at work on the Griner case: former U.N. ambassador Bill Richardson. Richardson and his organization have played a central role in negotiating the release of scores of Americans detained abroad, including Xiyue Wang from Iran, Danny Fenster from Myanmar and the unresponsive Otto Warmbier from North Korea. This, too, is a promising sign for Griner. Because they do not represent the U.S. government, the Richardson Center can often negotiate concessions the U.S. government would find unsavory to provide.

The U.S. public and media are paying close attention to Griner’s case. But dozens of other Americans are imprisoned unlawfully abroad, and these cases rarely receive national attention. Griner’s family, teammates and fans now join the legions of Americans waiting months – if not years – to see their loved ones come home.