On February 17, 2022, WNBA superstar Brittney Griner was detained upon her arrival in Moscow. As of April 29, 2022, Griner was officially classified as a Wrongful Detention by the U.S. State Department, which signals that REGARDLESS OF THE STATUS OF HER LEGAL CASE, the U.S. government will seek to negotiate her release.
Like many athletes competing in the WNBA, Griner – a two-time Olympic gold medalist – plays abroad during the WNBA offseason for the love of the sport, but also in exchange for substantially bigger contracts, which are not available to women’s basketball players in the U.S. Pay inequity has led to Brittney Griner’s wrongful detention in Russia, where she is being used as a political pawn. She is consistently denied consular access and is facing inhumane conditions, being denied communication with her friends, family and loved ones. As a decorated Olympian and member of an elite global sport community, Brittney’s detention must be resolved out of respect for the safety of all athletes traveling to compete internationally and the sanctity of sport. It is imperative that the U.S. government immediately address this human rights issue and do whatever is necessary to return Brittney home quickly and safely.
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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.
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.
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.
The 1963 Vienna Convention on Consular Relations (VCCR)is a multilateral treaty to which the United States and more than 170 other countries are party. It is a legally binding agreements between the United States and one other country. These instructions focus primarily on providing consular notification and access with respect to foreign nationals arrested or detained in the United States, so that their governments can assist them. The obligations of consular notification and access apply to U.S. citizens in foreign countries just as they apply to foreign nationals in the United States. When U.S. citizens are arrested or detained abroad, the U.S. Department of State seeks to ensure that they are treated in a manner consistent with these instructions, and that U.S. consular officers can similarly assist them.