As a consular officer overseas, I met dozens of Brittney Griners — American citizens, from all walks of life, who find themselves on the wrong end of a foreign legal system far from home.
Despite what Phoenix Mercury coach Vanessa Nygaard might claim, Griner’s continued detention in Russia has nothing to do with a lack of U.S. government interest in bringing her home. It makes no difference that she’s a woman, black, or gay, or even that she’s one of the few WNBA players who can dunk. It also doesn’t matter for whom she voted.
The fact of the matter is: There are limits to what American diplomacy can do for U.S. citizens who travel to foreign countries and run afoul of their laws.
When arrested abroad, an American’s first call is often to consular officers. Their expectations tend to be out of line with what our diplomats are allowed or supposed to do to help them.
The rules governing diplomatic intervention are spelled out in the Foreign Affairs Manual, aka “the FAM,” which is the operational bible for U.S. consular officers at more than 300 foreign posts from Albania to Zambia. According to the FAM, consular officers should visit the arrested American citizen “as soon as possible” after learning of the arrest.
That visit is to deliver the hard truth: You’re not in Kansas anymore. “Give the arrestee a realistic and positive understanding of your interest in and responsibility for a U.S. citizen or national in this situation,” officers are told, and “make clear to the prisoner that the judicial system and personal rights he or she enjoyed in the United States do not apply abroad.”
The FAM advises that “it is only fair to curb the prisoner’s expectations that consular assistance will result in extraordinary intervention or miraculous remedies.”
So what can embassy officers do?
They will visit you shortly after being informed of your arrest and then every few months during your trial. They will try to prevent you from being abused in custody. They will help you find a lawyer (at your expense). And they will monitor the progress of your case, so the host government knows Uncle Sam is watching. In many countries, this is an incentive for them to carry out a fair process. In Russia, North Korea, or Yemen? Not so much.
Over the span of nearly 25 years, I visited or helped a variety of Americans in jail for crimes ranging from drugs to theft to assault. Here are some points I’d advise travelers to keep in mind.
First, remember it’s their country, their rules. In Thailand, Americans can “expect long jail sentences under harsh conditions, heavy fines, or even execution for possessing, using, or trafficking in illegal drugs.“ Visitors there should respect religious mores and never insult the king. When in doubt, err on the side of caution: One American was even arrested for posting a bad review of a Thai hotel.
In Dubai last year, a group of foreign models got six months in jail for posing nude for photos on a hotel balcony. In Singapore in the 1990s, American high-schooler Michael Fay was sentenced to six strokes of a cane for vandalizing cars.
Second, if you are at risk of extradition or worse by a foreign country, think before going somewhere they might be able to get you. After all, some rulers have long arms. We’ve seen Russian exiles poisoned in Britain. Rwandans opposed to the government or connected with the genocide have died in mysterious circumstances in various countries, and Saudi journalist Jamal Khashoggi was murdered inside a Saudi consulate in Turkey in 2018.
Third, if you are going overseas to fight for another country, you are on your own. Missing American veteran Grady Kurpasi may have been killed by Russians while he was with Ukrainian forces a few months ago. According to the Washington Post, his family “accused the Biden administration of inaction” on his behalf, but in truth, there is little the U.S. can do to aid a private citizen acting as a mercenary or volunteer in a war between two foreign powers.
The Geneva Convention extends prisoner of war status to volunteers in certain conditions, but the Russians have made it clear that they will not give those protections to Americans fighting in Ukraine. Meanwhile, Ukrainian forces are also prosecuting Russian soldiers for war crimes in real time. Due, let alone fair, process is a rare thing in wartime.
At the time of her arrest, Griner was in Russia playing her seventh season with the Russian women’s team UMMC Ekaterinburg. She has gone well above the consular level, writing to President Biden and pleading for his help.
In an interview with CBS News, Vice President Harris hinted that something was “happening behind the scenes.” That may be related to reports that former governor and Clinton appointee turned ace hostage-releaser Bill Richardson might be dispatched to negotiate a deal with the Russians.
Harris also implied that Griner was being “unlawfully detained.” The part of the FAM that deals with “wrongful arrests” is for government eyes only. This much I can say: While it contains some additional diplomatic tools, it has no magic bullets.
The State Department has an office that deals with Americans “wrongfully detained,” such as for political reasons. But Griner pled guilty to the charge (of bringing in a minuscule amount of hashish oil in a vape cartridge) and has seemingly been treated in accordance with Russian law, harsh though it is.
In Russia, judges decide all but the most serious cases, and the acquittal rate is under 1 percent. Unfortunately for Griner, she picked the wrong time and the wrong place to carry that tiny amount of cannabis oil. She was arrested on Feb. 17, and Russia invaded Ukraine a week later, making Griner an accidental chip in a diplomatic “great game.” Because of that, she may face more time in what the State Department’s Human Rights Report calls “often harsh and life threatening” Russian prison conditions.
The hard truth is that Americans overseas are subject to foreign laws, just like foreigners are over here. Americans arrested and accused of crimes in other countries have to work through those legal systems the best they can. Short of sending SEAL Team Six, arranging a prisoner exchange, or cutting a secret deal giving the other country something it wants, there is little a U.S. president can do in cases where a foreign government isn’t amenable to friendly persuasion.
In Michael Fay’s case, then-president Clinton appealed to the Singapore government — a friendly one — but only managed to reduce the sentence by two strokes of the cane. More hopefully, Richardson has a good track record of negotiating the release of Americans held in unfriendly places like Iran, North Korea, and Russia. If he fails, there’s always the Rev. Al Sharpton, who plans a pastoral visit to Griner soon.
For most Americans, especially those with no fame or connections, there’s no way to completely avoid the risk of being arrested overseas, sometimes on spurious charges. Still, the more you can follow the letter of a foreign country’s law — particularly with regard to drugs and public behavior — the safer you’ll be.
A former State Department official, Simon Hankinson is a senior research fellow in The Heritage Foundation’s Davis Institute for National Security and Foreign Affairs.