When is a wrongfully detained person "wrongfully detained?"

When it comes to 'hostage diplomacy," Biden's strategy may be measured, but it seems inconsistent

Dec 23, 2023

The recent exchange of hostages between the U.S. and Venezuela is a vivid testament to how the quid pro quo of international diplomacy, replete with gambits and sacrifices, often plays out like a high-stakes chess game in which the pawns are real people.

Ten Americans once detained in Venezuela are now breathing the air of freedom. Their release, however, didn't come without a price. Here, President Joe Biden faced a Gordian knot of diplomatic trade-offs: the release of Alex Saab, a high-profile Colombian businessman and crony of President Nicolás Maduro, entangled in a web of money laundering, in exchange for the jailed Americans and a defense contractor known as “Fat Leonard,” who is at the center of one of the U.S. Navy’s largest corruption cases.

Six of the Americans released were deemed to be “wrongfully detained” by the Biden administration, a designation in which the U.S. government considers them the equivalent of political hostages.

On the surface, it's a heartwarming tale of reuniting families for the holidays. Dig deeper, and you find a narrative riddled with selective morality and strategic convenience. Ostensibly a victory for human rights, it was also a deft political maneuver, one that hinged on the delicate balance of sanction relaxations and a vague promise of a free and fair election in Venezuela next year.

There is an inherent bullet biting to what the U.S. calls ‘hostage diplomacy,’ the growing practice in which foreign governments detain Americans on what Washington considers to be bogus or politicized charges.

On one hand, the U.S. must navigate the ethical quandaries of negotiating with rogue regimes increasingly using the detention of Americans as leverage. On the other, it faces the imperative of bringing those unjustly detained Americans home.

In addition to the more than 100 Americans currently being held by Hamas in Gaza, fifty-seven Americans are currently being held hostage or wrongfully detained in fifteen different countries, according to the James W. Foley Legacy Foundation, which was founded by the family of Foley, a journalist who was kidnapped and murdered by ISIS in Syria.

Since taking office almost two years ago, Biden seems to be navigating a path that balances the urgent need to secure American lives with the broader implications of such exchanges on national security and foreign policy. His administration has brought back roughly three dozen unjustly detained Americans.

In September, the Biden administration freed five American citizens the U.S. government deemed wrongfully detained in Iran. The hostages included Siamak Namazi, Emad Shargi, and Morad Tahbaz, who were held in Iran’s Evin Prison for more than five years, accused of what the United States considers totally false espionage charges. In exchange for their release, Biden gave clemency to five Iranians imprisoned in the U.S and issued a waiver to facilitate the transfer of $6 billion in Iranian oil revenues held in restricted accounts in South Korea to Iran via Qatar for humanitarian purposes.

It’s pretty rich that Donald Trump, along with most Republicans, criticized Biden for the Iran deal. Trump, for all his bluster and bravado on Iran , was no stranger to striking deals with Tehran to bring Americans home and agreed to prisoner swaps with Iran involving Iranian nationals prosecuted in U.S. courts. He even held a summit with North Korean leader Kim Jong Un in 2018 after three detained Americans were released.

Biden’s prisoner exchanges and diplomatic quid pro quos, however, while perhaps more measured, have a sense of inconsistency that clouds the decision-making process. This is most evident in the opaque process of designating someone as "wrongfully detained" – a label that wields immense power, determining who gets prioritized and who languishes in foreign captivity.

Say what you will about Donald Trump's chaotic bull-in-a-china-shop diplomacy, but when it came to Americans detained abroad, his administration had a clear, if somewhat reckless, agenda: Bring them home whenever possible, no matter the cost or the optics.

Trump didn't tiptoe around the tulips of international diplomacy. He bulldozed through the garden, seemingly indifferent to the potential diplomatic or domestic political fallout or the precedent it might set. It was a straightforward, almost brazen approach, but it brought results, and it brought Americans home.

In 2022, Biden issued an executive order declaring a national emergency that “the wrongful detention of United States nationals abroad constitutes an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States.”

According to the executive order, the Secretary of State should “publicly or privately designate or identify officials of foreign governments who are involved, directly or indirectly, in wrongful detentions, as appropriate” and should be working to “secure the release of those held as hostages or wrongfully detained,” whether they are citizens or lawful permanent residents.

Here's the rub: Not every wrongly detained American garners the official label of being "wrongfully detained." Designation is a selective process that is shrouded in mystery and wrapped in diplomatic red tape.

Additionally, some detainees are championed by the Biden administration, while others are seemingly left in the lurch.

Take, for instance, the case of former U.S. Marine and Michigan corporate security executive Paul Whelan, serving a 16-year sentence in Russia on disputed espionage charges. Last year’s swap involving WNBA star Brittney Griner’s release in exchange for Viktor Bout, a convicted Russian arms dealer known as the “merchant of death,” was a victory for her family. But it was one that left Whelan in limbo despite both being designated as “wrongfully detained.”

To the onlooker, it reeks of political favoritism, where some lives are prioritized over others based on opaque criteria. But the Biden administration’s choice highlights a complex calculus of international negotiations given the Kremlin’s unpredictable use of American citizens as leverage. Russian President Vladimir Putin wasn’t ready to give up Whelan. His fate is tangled in a complex web of high-stakes diplomacy in which his freedom is a bargaining chip in a larger geopolitical dispute between Washington and Moscow.

The same is true for Evan Gershkovich, a Russia correspondent for The Wall Street Journal. Russian special services arrested Gershkovich in March on espionage charges, which he and The Journal have denied. He remains in a high-security prison in Moscow awaiting trial.

Putin said recently at his year-end press conference he wants “to reach an agreement” on the return of both Whelan and Gershkovich, adding of the negotiations with Washington, “it seems to me that we speak a language that is understandable to each other.”

The case of Radio Free Europe Journalist Alsu Kurmasheva isn’t being given the same urgency in Washington. Kurmasheva, a dual US-Russian citizen based in Prague, traveled in June to Russia for a family emergency. She was detained for failing to declare her dual citizenship and later charged in October with failing to register as a foreign agent, a law critics argue is used by the Kremlin to suppress dissent. She remains in custody, with the Russian court extending her detention and delivering new charges of spreading false information about Russia's armed forces. She faces up to 15 years in prison in Russia.

What perplexes me is that the State Department designated Gershkovich as wrongfully detained within two weeks of his arrest, as they should have. Yet despite calls by Congress and human rights groups, the State Department has yet to officially declare Kurmasheva “wrongfully detained,” which would unlock a similar broad U.S. government effort to secure her release.

Both Gershkovich and Kurmasheva are victims of Russia’s war on journalists and are both being used as pawns to trade for high-value Russians held in US custody. But the uncomfortable truth is that in the world of international hostage politics, not all Americans are considered equal. Their worth, it seems, is measured not just in human terms but in the currency of strategic advantage and political leverage - and their release pathways are as convoluted as the reasons for their detention.

President Biden asserts that recovering all Americans held hostage or wrongfully detained abroad – be it the more than 100 people being held hostage by Hamas in the Gaza Strip or Americans determined wrongfully detained in Russia, Iran, and other parts of the world – is his highest priority. The reality appears more nuanced, shaped by a complex mosaic of factors that often leaves desperate families and concerned observers in a state of perplexing uncertainty.

One thing is clear: the need for a more consistent, principled, and transparent approach to securing the release of all Americans held overseas, as well as a concerted strategy to deter regimes from taking hostages in the first place.

When is a wrongfully detained person "wrongfully detained?"

When it comes to 'hostage diplomacy," Biden's strategy may be measured, but it seems inconsistent

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