You are here: American University School of International Service Big World podcast Episode 53: How are Political Prisoner Swaps Negotiated?

How are Political Prisoner Swaps Negotiated?

Taking hostages and prisoners is not a new occurrence; people have been taken hostage by those seeking to gain a political upper hand for thousands of years. What is new today is that more US hostages currently are being held by foreign governments than by terrorist or militant groups. Some of the most recent, high-profile political prisoner cases are those of WNBA star and US citizen Brittney Griner and US citizen Paul Whelan. They have both been detained in Russian prisons, and with these wrongful detention cases featured so prominently in the news, many questions have arisen about prisoner swaps and how the process works. In this episode of Big World, our guest is Professor Danielle Gilbert, a Rosenwald fellow at Dartmouth College, Bridging the Gap fellow, and hostage diplomacy expert.

Dani Gilbert discusses how the US determines wrongful detentions (2:20) and explains the difference between a hostage and a political prisoner (4:45). She talks about why Brittney Griner and Paul Whelan are being held in Russia and how they may be used as leverage by Russia in a negotiation process (6:05). She also explains how the US decides whom to offer in a prisoner swap and the reasons why some political prisoners get left behind in these deals (8:09).

How have past US-Russia and US-Soviet prisoner swaps shaped relations, and do current tensions make a swap more difficult (13:30)? How does outside involvement and media coverage help or hinder prisoner swaps (22:47)? Dani answers these questions and discusses the impact of political prisoner swaps on both the families of the prisoners and the governments that are involved. The episode concludes as Dani shares her thoughts on the likelihood of an agreement between the US and Russia in which Brittney Griner and Paul Whelan are released together (28:13).

During our “Take Five” segment, Dani shares the five policies she would enact to protect political prisoners around the world and help expedite the repatriation process (18:46).

0:06      Kay Summers: From the School of International Service at American University in Washington, this is Big World where we talk about something in the world that truly matters. As long as there has been conflict, there have been hostages and prisoners. From the two princes held in the Tower of London in the 1400s to the diplomats and citizens held hostage in Iran for over a year, beginning in 1979, taking people and holding them in pursuit of political or property gain is not new. What is perhaps different today is that more US hostages are now held by foreign governments than by terrorists or military groups.

0:43      KS: WNBA star Brittney Griner has been held in Russia since February 17, 2022, for marijuana possession and was sentenced to nine years in prison on August 4th. The US government considers her wrongfully detained. US citizen Paul Whelan was arrested back in December 2018 and in June 2020 was convicted of spying and sentenced to 16 years in a Russian prison. There have been calls for the Biden administration to negotiate a prisoner swap to secure their releases.

1:15      KS: So today we're talking about political prisoners and prisoner swaps. I'm Kay Summers, and I'm joined by Danielle Gilbert. Dani Gilbert is a Rosenwald Fellow in US Foreign Policy and International Security at the Dickey Center for International Understanding at Dartmouth College. Her research explores the causes and consequences of hostage taking and international security, including projects on rebel kidnapping, hostage recovery policy, and hostage diplomacy. Before entering academia, she worked on Capitol Hill, and she's also worked as a policy advisor on presidential and congressional campaigns. And for the past seven years, she served as a fellow with the Bridging the Gap project, which is headquartered here at the School of International Service. Dani, thank you so much for joining Big World. I'm really interested going into this discussion.

2:05      Danielle Gilbert: Oh, thank you so much for having me. It's a real treat.

2:07      KS: Dani, as I said in the opening, the US considers Brittney Griner "wrongfully detained." How does the US determine what is a wrongful detention in a foreign country where we don't have jurisdiction?

2:20      DG: Wrongful detention is a technical legal category designated by the US government. There are lots of Americans who are arrested overseas all the time for breaking the laws of foreign countries. In the vast majority of those cases, the United States government doesn't get involved. There's no objection. If an American breaks a law in a country and we believe that that person is being treated fairly, they go through the criminal justice system of the foreign country just like we would expect in a different sovereign state. But sometimes those arrests are used for political leverage, or they are carried out in a way that is unfair or unsafe for our citizens.

3:04      DG: A couple of years ago, several members of Congress got together, and they wrote and then passed what is called the Robert Levinson Hostage Recovery and Hostage Taking Accountability Act. The law is named after an American who went missing in Iran in 2007 that the United States government believed was held essentially as a hostage by the Iranian government. In that legislation, the US Congress laid out 11 different criteria that would potentially designate an American as wrongfully detained.

3:38      DG: That might be that there is evidence abounding that suggests that that American is innocent of their crimes. It might be that there is evidence that that person is explicitly being held for political leverage, or essentially that they're being held as a hostage. Or things like the State Department's own annual human rights reports determine that that country's criminal justice system is corrupt. That the American is incapable of having a fair trial there.

4:06      DG: So the State Department reviews all of these cases of Americans held abroad. If the Secretary of State determines that at least one of these criteria are relevant, then that case receives the wrongfully detained designation. That person's case is moved to the Office of the Special Presidential Envoy for Hostage Affairs, essentially the chief US diplomat or hostage negotiator who works on securing the release of those Americans wrongfully detained abroad.

4:38      KS: How would you define the term political prisoner? How is that different from a hostage, or is it different in this case?

4:45      DG: Many different kinds of political prisoners, in this case, there's a bit of a Venn diagram between political prisoners and hostages. So a political prisoner is when someone is arrested for political purposes. That might be because they are doing something that their own country or regime considers dangerous to the regime, a threat to the regime. Someone arrested for free speech in a country that doesn't allow free speech or protest, or in this case someone who is being held for leverage.

5:17      DG: A hostage is someone who is held essentially with the demands that condition their release from a third party. So the hostage taker holds the hostage and makes demands of someone else be that a foreign government, a family, a company, that they have to make concessions in order for that person to be released. When we talk about someone like Brittney Griner, she's in a way in between those two. She's being held. She was arrested through the Russian criminal justice system, but she is being held for leverage and will be released when the United States makes the concessions that the Russian government is demanding.

5:55      KS: Dani, that brings us right to it, doesn't it? In the Brittney Griner and the Paul Whelan cases, which of course are different, why is Russia holding them? How are they being used as bargaining tools?

6:05      DG: So both Brittney Griner and Paul Whelan were arrested in Russia for supposedly breaking laws of the Russian criminal justice system. Paul Whelan was arrested for espionage. Brittney Griner was arrested. They accused her with international drug smuggling. The vast majority of cases that fall into this category of wrongful detention, or what I call hostage diplomacy, have usually an espionage charge. It's usually the case that the foreigner is in that foreign country, they're doing something that the regime considers threatening, and espionage is a convenient charge from a foreign government. It's the kind of secrecy that is difficult to prove. There's usually not a lot of evidence. There's always kind of a plausible deniability.

6:57      DG: In Brittney Griner's case, she was arrested for what she has pled guilty to, which is transporting 0.7 grams of hash oil. I saw a great description of that in The New Yorker that described that as about the weight of a raisin. For that amount of hash in a suitcase that she would never have gone to prison in the United States, and in most cases would not have gone to prison either in Russia. But the Russians have charged her and convicted her with international drug smuggling and sentenced her to more than nine years in prison.

7:33      DG: So while they have gone through this process, through the criminal justice system, treating both of these Americans as people who have broken Russian laws, they are being held for leverage. The Russians are holding onto them for this extended period of time in order to exact concessions from the United States government. As far as we can tell from the reporting and from how the Russians have treated these cases in the past, the Russians are looking for a prisoner

8:00      DG: ... swap. They're holding our Americans in order to coerce the United States into releasing Russians who are currently held in US prison.

8:09      KS: As you say, there has been a lot of talk and a lot of ink about a potential prisoner swap for both Griner and Whelan, in a prisoner swap, how does the US decide who to offer an exchange in that deal and how lengthy of a process can these swaps be?

8:24      DG: So these processes can take a very, very long time, usually months and more often years. So this is something that takes a very, very long time. We have Americans who have been wrongfully detained in a handful of countries around the world, and some of them have been in prison in foreign countries since 2015, 2016. This is something that takes a very long time to resolve. The countries that hold our Americans in this way don't always state out loud what they are demanding explicitly. Sometimes it's implied because they're intent on maintaining the farce that the entire thing is a legitimate criminal proceeding. But they will often ask for certain individuals in exchange or for other kinds of concessions in exchange. The Russians so far, we can surmise that what they want is a prisoner swap and not other kinds of political concessions. And I can talk about what some of those look like as well.

9:21      DG: But in the past, the Russians have demanded that certain Russians who are imprisoned in the United States be released. And that is both happening in conversations behind the scenes with American negotiators. But the Russian state owned news agency has also written about the Russians imprisoned in the United States that the government would like to see come home. And so it's not that the United States is necessarily choosing who to offer. They're responding to the historical demands from our adversary. And so when Secretary Blinken announced that he had put a substantial deal on the table to bring home Brittney Griner and Paul Whelan. Most likely that deal was offering a prisoner that the Russians have demanded in the past.

10:05      KS: And this whole idea of political prisoners, it's so fraught. These people have families. There's public pressure that is typically applied by the families who very rightly want their loved one to come home. So it can be particularly in a country that has a free press, something that takes on an enormous amount of discourse around whatever the normal relations are between those two countries. So what role do political prisoners play in foreign policy and negotiation? Because the leverage piece of this is just huge, right?

10:36      DG: It's a great question. So if we are putting our utilitarian hats on, it's puzzling why the United States would consider giving concessions, doing things not in the United States national interest for a single American or for two Americans who are held somewhere overseas, that the sheer count of it all might not always make sense. But the United States cares a lot about our citizens and has a policy of protecting Americans wherever they are around the world and doing what the United States government can do to bring home Americans who are held in this way. Individual hostages and political prisoners do elicit outsized amounts of media attention compared to other forms of violence due to something called the collapse of compassion. So this is the idea that it's really easy to pay attention to and to feel a great amount of sympathy for an individual person with a name, with a face, with a story, and much harder to elicit that kind of sympathy and desire to get involved when it's a larger group of victims, frankly.

11:44      DG: And so what Brittney Griner and Paul Whelan are going through is absolutely tragic. They have been held indefinitely in places where they in some cases don't speak the language. American hostages and political prisoners are sometimes held in solitary confinement. They are treated horribly. It's a nightmare for them and for their families. They also are able to publicly advocate and get a lot of attention to bring their loved one home. And so when we think about these cases, we are talking always about our adversaries. We don't have to think about wrongful detention and hostages from the United States friends around the world. We are talking about the countries with whom we already have the most challenging geopolitical negotiations. And so our adversaries use our sympathy for our fellow citizens against us.

12:42      DG: They are holding our citizens for leverage when they know that that puts the White House, that puts the United States government in an extremely difficult position where they have to pit major national interests against each other, this desire to protect Americans abroad and to bring people back from these horrifying situations and to make sure that we're not making concessions to some of our worst adversaries on the world stage. So it really puts our government in a very difficult position.

13:10      KS: Talking about Russia specifically, just for a little context, how have past US, Russia or US, Soviet prisoner swaps shaped relations? How have these happened in the past and do you think that the current tensions between the US and Russia are hindering the chances of a successful swap agreement in the cases of Griner and Whelan?

13:30      DG: There is a real history of United States, Soviet and United States Russian prisoner swaps and what were known as spy for spy swaps with the Soviet Union where Soviet spies in the United States and American spies in the Soviet Union would be identified and would be traded back and forth between our two countries. To some extent, that actually bodes well for us that even at times of extreme geopolitical tension between our two countries, that we are able to make these trades. Several months ago, the United States was able to negotiate the release of an American who had been imprisoned in Russia in 2019 named Trevor Reed. And he came home in April of this year. And to some extent that was very difficult to watch because Paul Whelan was left behind. Brittney Griner was left behind. But it also was promising in some ways, which is that it had suggested that despite Russia's war in Ukraine, that despite ongoing geopolitical tensions between the United States and Russia, that negotiations were still possible and that it was going to be possible to have those conversations to bring other Americans home.

14:43      KS: And that pivots into my next question, which was about Trevor Reed. The question of why some political prisoners are released in swaps, but some are left behind? Particularly with Trevor Reed, you had a situation where he and Paul Whelan had been in prison for roughly the same amount of time, and when Trevor Reed was released, Paul Whelan was not released with him. How does this whole calculation play out where some people are left?

15:07      DG: It's a great question and a lot of these dynamics are really difficult to understand because they all happen behind the scenes and we will never really know what exactly happened in those conversations. The United States is always trying to get the absolute best deal it can and to bring home all of the more than 40 Americans who are held in these kinds of conditions abroad. There's not a wait your turn policy of trying to bring people home in chronological order or something like that. They really are trying to make all of these recoveries all the time. So why would Trevor Reed come home and not Paul Whelan or not Paul Whelan and Brittney Griner? There are a couple of things that we might imagine went on behind the scenes. First of all, Trevor Reed was

16:00      DG: Very sick. And as all experienced hostage takers know, you have to make sure that you keep your hostage or your prisoner alive because if they suffer severe health consequences, if they die in captivity, you're not going to be able to coerce concessions to bring them home anymore. And so if you are holding someone hostage, there's a real fear that that prisoner might pass away. And so in addition to the fact that there's a fear on the United States, of course, of losing someone's life in that way. And so if a hostage or prisoner becomes very sick, sometimes it infuses some urgency into a conversation that might have already been going on, but it pressures both sides to take a deal very quickly. So that might be one of the factors with Trevor Reed. One of the factors that some of the families of different hostages and political prisoners point to is the fact that Trevor Reed's family protested outside the White House and they got a meeting with President Biden.

17:05      DG: And so that teaches a lesson to all of the different families dealing with this case that if you speak to the president, then your loved one will come home quickly. Now, I don't believe that that's causal. I don't think that the meeting with the president made the president care about Trevor Reed and not these other cases, but that might be the lesson that one would learn having watched this sequence of events. The last thing is just to really remember that we are dealing with our adversaries. It is not in Russia's interest to give us the deal that we want. They're going to wait for the deal that they want.

17:41      DG: And so we can imagine that there was a deal on the table and the Russians were only offering Trevor Reed and not Paul Whelan, or that they were asking for things that the United States was not willing to concede to get them both home. And so given that really difficult set of circumstances, it sometimes means that these deals are not ideal. And we have to wait to see when everyone will ultimately come back and hopefully Paul Whelan and Brittney Griner will come back together.

18:21      KS: Dani Gilbert, it's time to take five. This is when you, our guest, get to daydream out loud and reorder the world as you'd like it to be by single handedly instituting five policies or practices that would change the world for the better. So what are five policies or procedures you would enact to help protect political prisoners around the world and expedite the repatriation process?

18:46      DG: The very first thing I would do is work with the IRS and work with credit card companies and debtors to make sure that when Americans are held hostage or wrongfully detained abroad, that they are excused from dealing with bills that they are unable to pay. So one of the things that families most have to deal with when their loved one is held hostage or wrongfully detained abroad, is figuring out how to navigate paperwork, essentially to pay bills and to pay taxes. And so I would immediately work on government relief to make sure that that's not an added burden to families when their loved one is sitting in solitary confinement or in prison somewhere abroad. The second thing that I would do, and this one is quite controversial, is that I wish there were less media coverage of these cases. The media coverage is pretty critical to raise public attention and in some cases, to put pressure on the US government or on governments in other countries to take action in these cases.

20:01      DG: But it also raises the cost and can raise the stakes for our adversaries. And so I wish that there was enough confidence behind the scenes that the government was doing what it needed to do, such that we could really keep everything quiet. The third thing that I would want to do is impose stricter travel warnings to places where this is quite prominent and help educate the public about the risks of being taken hostage or wrongfully detained abroad. The US State Department has just imposed a new round of travel warnings, but I don't know how many Americans look at the state department's travel page before they make their plans to go overseas. And I wish those warnings had a little bit more bite. The fourth and fifth things that I would do are really about coordinating with our international partners. The world's community came together in the 1970s to deal with other kinds of hostage taking when airplanes were being hijacked every five and a half days.

21:09      DG: And I think that the new era of hostage taking in the form of hostage diplomacy and wrongful detention welcomes that kind of coordination as well. So the fourth thing I would do specifically is for the United States, for other western democracies that have been victimized by this kind of violence, including Canada and the United Kingdom and Australia and Japan, and any other country that feels at risk of this kind of behavior, they could come together and agree on formal definitions of this kind of crime to really designate that this is indeed a form of hostage taking and therefore a violation of international law. So I'd like to see more coordination on the nomenclature and on the concepts. And fifth, with that coordination, I would like to see our allies come together for more coordinated punishment mechanisms as well. I think that making concessions right now is the best way to bring our people back. And so how can we deter our adversaries from taking hostages and wrongful detainees in this way? By threatening real punishments for this kind of behavior. Right now that looks like sanctions. And I would hope that the United States and our allies can think creatively about new forms of sanctions and other processes in line with international law that would help stop this crime from happening all around the world.

22:47      KS: Thank you. I want to ask you a question a little off to the side here, because whenever you see one of these situations play out there is, as we've talked about, an incredibly public side of this with raw emotion. And then there is the behind the scenes side where the activities happening between the two governments and the diplomatic channels that they have. And you also have these sorts of freelancers, I think we could call them who put themselves out there or pop up in the news. It could range from anyone like former New Mexico governor and ambassador Bill Richardson to somebody like Dennis Rodman who inserted himself in one of these cases over the last few years, I think. When these types of freelancers or public figures for whatever reason and insert themselves into this dialogue, does it meaningfully impact the situation for the positive or the negative, or is it just more noise?

23:45      DG: So I am often encouraged when I see a third party get involved in these negotiations, but there are also some real risks. So the benefit of having an outsider

24:01      DG: ... [inaudible 00:24:01] like Ambassador Richardson get involved in this. Not only do he and his organization have a lot of experience and success working on prisoner swaps and negotiations, he does not represent the United States government. He is a former government official, and he is not speaking on behalf of the US government when he and his associates go try to have these negotiations, and so there's some benefits of that. It means that he might be able to meet with people that the United States government considers unsavory in certain cases or that various sanctions block the United States government from meeting with. I'm not sure what Dennis Rodman brings to the process, frankly, but there are people who are quite experienced at this and very successful.

24:46      DG: The risk, of course, is that there might be principal agent problems, or there might be real disagreements between what someone like Ambassador Richardson is able to come up with and what the White House or administration has decided is good US foreign policy, because Ambassador Richardson or any other third party negotiator has one goal. It's bring this person home, and the United States government, as we've discussed, has a whole range of national interests that they need to think about. Bring this person home, but not reward our adversaries and not incentivize more arrests or attacks of this kind. And so there's a little bit of a cost benefit. I'm glad to see in this particular case that Ambassador Richardson has been involved, but you certainly don't want this space to become too crowded or essentially have too many cooks in the kitchen.

25:42      KS: I think that that is one point that we hadn't brought out, and it's very important that we don't want to incentivize our adversaries to take more Americans hostage. So the deals, such as it is, have to be weighted in a way that gives the adversary some of what they want, but not so much of it that now they think it's open season on taking American's hostage.

26:05      DG: It's really difficult because the record shows that the best way to bring Americans home from these situations is to make concessions. The idea that the US has a no concessions policy is really just a myth. We don't really have such a policy, and even if we did, we've certainly never followed it. On the day that we are recording this, there was news just this morning of an American who was kidnapped by the Taliban and had been held by the Taliban for more than two years, almost three years at this point, and was released this morning also in a prisoner swap. And so prisoner swaps work to bring our people home, but of course, there's always a fear that the more the United States engages in this and when these stories are public, that it teaches our adversaries around the world that hostage taking is profitable and that you're able to coerce the United States in this way.

27:01      DG: And so the Biden administration has started working on some policies and implementing some policies to think about the kinds of punishments that they might be able to impose on the people who engage in this practice around the world, so there's a new set of sanctions that the administration has talked about. They were actually first authorized in that Robert Levinson Act that I mentioned earlier, and these sanctions are really broad and sweeping. They can apply to anyone who is involved in, responsible for, or complicit in the hostage taking or the wrongful detention of an American abroad. So, that means not just focused on national leaders who, in many cases, we're already sanctioning quite heavily anyways, but people like the judges or the prison guards, kind of low level people in the chain of command who wouldn't really see any personal benefit in holding someone hostage. And so this might help deter them from getting involved in these kinds of crimes.

28:04      KS: The last question. In your opinion, what is the likelihood of the US and Russia reaching a deal that would free both Griner and Paul Whelan at this point?

28:13      DG: I am cautiously optimistic. I know that the United States government is committed to doing that, and in many of these cases it takes a very long time, but Americans do ultimately come home like we saw in this case of Mark Frerichs, who was just released from the Taliban. The United States government is going to be pushing to bring the two of them home together, and the Russian government knows that, and so they will either try to make a deal that releases just one of them and not the other, or they will make exorbitant demands to have the two of them released together. And while the latter is a problem for foreign policy, the former we could anticipate being a problem for domestic US policy, because Brittney Griner and Paul Whelan are very different. They were arrested for different things, and they represent different constituencies that, in terms of United States identity politics, are fairly salient.

29:18      DG: So, Britney Griner is black and she's gay and female. Paul Whelan is a white male veteran, and so releasing one and not the other could be very problematic for the Biden administration in terms of the kind of cultural conflicts that we see in the United States. And so keeping in mind that our adversaries know that and want to make that as difficult for the Biden administration as possible, the government is going to be still pushing to bring them home together and as soon as possible.

29:53      KS: Dani Gilbert, thank you for joining Big World to discuss political prisoners and hostages and prisoner swaps. It's been a pleasure speaking with you.

30:00      DG: Thank you so much for having me.

30:01      KS: Big World is a production of the School of International Service at American University. The podcast is available on our website, on iTunes and Spotify, and wherever else you listen to podcast. If you leave us a good rating or a review, it'll be like a Halloween candy bowl with extra candy corn. Our theme music is "It Was Just Cold" by Andrew Codeman. Until next time.

Episode Guest

Danielle Gilbert,
a Rosenwald fellow at Dartmouth College, Bridging the Gap fellow, and hostage diplomacy expert

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