- Brittney Griner has pleaded guilty to charges of large-scale transportation of drugs into
Russia . - The move likely was strategic in nature — it could help expedite negotiations for a prisoner swap.
The
After several extensions of her detainment, the two-time Olympic gold medalist finally saw her trial begin July 1. And on Thursday, she pleaded guilty to the charges at hand — likely in a strategic attempt to expedite the process that would lead to a possible prisoner exchange with Russia.
That remains the best available avenue for the Biden administration to secure Griner's freedom, especially now given her guilty plea. But that had been true from the start since the Russian court system was likely never going to offer Griner a fair trial, according to experts.
"People assume that there's some level of justice in Russia, but a lot of their prosecutions are really persecutions," Duncan Levin, a criminal law expert who served as a federal prosecutor with the US Department of Justice before assuming the role of managing partner at Levin & Associates, told Insider. "Russia's criminal justice system is intensely flawed and marred by political prosecutions, and I think that the Griner case is an example of that.
"As flawed as the criminal justice system is in the United States, it's basically nonexistent in Russia," he added.
Without any hope for justice through the Russian courts, Griner's freedom almost certainly hinges on a prisoner exchange
Even since the US State Department reclassified Griner as "wrongfully detained" in May, the government has ramped up its negotiation efforts with the Russians in an active attempt to bring the seven-time All-Star back to the States. However, heightened tensions over Russia's ongoing war in
Between Russia's suspect handling of Griner's case and the country's notoriously harsh 99% conviction rate, there is a general understanding that Griner's court proceedings will constitute nothing more than a "show trial." Those familiar with the situation acknowledge that a prisoner swap is the 31-year-old basketball star's only realistic chance at returning stateside.
Dr. Dani Gilbert, an expert on hostage taking and recovery who is currently a Rosenwald Fellow in US Foreign Policy and International Security at Dartmouth College's John Sloan Dickey Center for International Understanding, confirmed to Insider that "these cases are pretty much always resolved with a prisoner swap or with concessions of some sort.
"The whole point of a state like Russia arresting an American is not because it's a legitimate criminal proceeding, but because they intend to use them as a hostage," Gilbert said. "At some point between the moment of the arrest as the process unfolds until that person is released, they transition from regular prisoner to bargaining chip.
"I think we are safely in that territory of bargaining chip now," she added. "I'm very comfortable thinking of [Griner] in those terms and thinking of this as a case of hostage diplomacy."
Prisoner swaps are nothing new for the Americans and the Russians. As recently as April of this year, the Biden administration negotiated the release of former marine
Jonathan Franks, a hostage negotiation expert who helped secure Reed's release from Russian prison, told Insider that the situation unfolding for Griner is somewhat similar to the one Reed endured.
"The most likely outcome is a prisoner trade," Franks said. "That's the only outcome that the Russians thus far have asked for in these cases."
But when it comes to trading Griner for any of the Russian nationals currently held in the US, Levin warns that "you're really talking about apples and oranges." Experts say it's possible that the
Even if she was actually in possession of cannabis, which still remains unclear even after she pleaded guilty to the charges in a July 7 court appearance, the violation would only amount to a misdemeanor on American soil.
For that reason, the US government is reluctant to swap Griner — who Franks says would be considered "a low-level drug offender at best" — directly for a Russian prisoner convicted of significant, dangerous offenses. And therein lies the problem; that's exactly what the Russians are looking for.
"It's really clear that that's the Russians' intentions," Gilbert said. "It's also really clear that the Russians are hoping to trade her for Viktor Bout."
Russia's goal is to broker the release of a convicted arms dealer dubbed the 'Merchant of Death'
Notorious for supplying rebel groups and terrorist organizations with weapons that fueled bloody wars across Africa, Asia, and the Middle East, Bout has been in foreign custody for over a decade. He was arrested in Thailand in 2008 — but not for the high-stakes trafficking operations that served as inspiration for several movies, documentaries, and books.
Instead, Bout was caught in a Drug Enforcement Agency sting operation. American officials lured the elusive arms distributor to engage with purported representatives of a Colombian guerilla group. He offered to sell weapons to the rebels, even with the understanding that the materials could have been used to kill Americans.
Soon after, Bout was arrested in Bangkok and, following an extended legal battle and protests from the Russian government, extradited to the United States. Nearly four years after his initial capture, Bout was convicted of conspiring to provide "material support" to a terrorist organization, promising to supply them with anti-aircraft missiles, and engaging in a plot to kill Americans and US officials.
The Hon. Shira A. Scheindlin, a then-federal judge for the US District Court for the Southern District of New York who ruled on the case, sentenced Bout to 25 years in prison. Though the punishment was the minimum sentence possible for such crimes, Scheindlin has since said that "the sentence was too high in the first place."
"It was mandatory. I had no discretion," she told Insider. "I had to give the sentence I gave."
The Russian government has since lobbied hard for Bout's return, and Russian media have repeatedly linked him to potential prisoner swaps with jailed Americans — including Reed. As recently as May, Russian state media outlet Tass wrote that American and Russian officials had engaged in talks about a potential Bout-Griner prisoner exchange.
Linkage of Bout and Griner has prompted Scheindlin to speak out about mischaracterizations surrounding Bout's arrest and conviction. Chief among her concerns: The "Merchant of Death" was never convicted of actually supplying anyone with weapons.
"No arms were sold," Scheindlin said. "Nobody was hurt, and he was kind of placed in that position because of his past and because of the way the agents handled it.
"I'm not saying he's an innocent guy, don't get me wrong, but I do think having served 11 years or so ... that's a pretty hefty amount of time in a person's life," she added. "I don't think it would be wrong to trade him. The US interest in punishing him has been satisfied, in my opinion."
Levin — whose current Russia-related cases include representing British-American businessman Bill Browder and Russian billionaire Oleg Deripaska — noted that Scheindlin's stance on the matter "should be taken very seriously" given her proximity to and familiarity with Bout's case.
"When the sentencing judge is saying that he's served enough time, that's something that should to carry a lot of weight," Levin said.
Scheindlin was unwavering in her belief that Bout — whom she characterized as "a cold, cold businessman" but far from a terrorist — no longer poses a threat to the US or its allies. She added that "he'd be deranged the risk going back to prison."
Franks agreed, telling Insider, "I don't think it's a national security issue" to release Bout, in part because "he's not the same man" he was when he was first taken into custody some 15 years ago.
But other sources, like Gilbert, insist that "there's a real American national security interest in keeping Viktor Bout locked up."
"The costs of letting him go are very real," she told Insider. "He's a real bad guy. He's a violent criminal, who was responsible for aiding and abetting violence all over the world."
Gilbert also warned of concerns beyond Bout's notoriety and capacity for future harm; releasing such a high-profile criminal could incentivize Russia and other American adversaries to wrongfully detain more civilians in the future.
"The White House has to be cautious of advertising to the rest of the world that the minute you unjustly arrest an American citizen abroad that you will get the full attention of the Oval Office," Gilbert explained, adding: "This narrative of 'you arrest Americans and the government will make concessions to bring them home' does set a really dangerous precedent."
Even despite the complexities of the situation, the Biden administration has repeatedly expressed its commitment to bringing Griner home. Biden and Vice President Kamala Harris spoke on the phone with Griner's wife, Cherelle, on Wednesday to assure her that they're "working to secure Brittney's release as soon as possible."
A 2-for-1 deal could be the path to a breakthrough — and not just for Griner
Even individuals like Franks who have urged the US government to include Bout in a prisoner exchange concede that "a Griner-for-Bout trade would be very difficult" for the administration to execute. In this instance, Gilbert says agreeing to a straightforward prisoner swap "presents this false equivalency" that the WNBA superstar "has committed the equivalent crime of a Viktor Bout."
"That's why one-on-one would be troubling for our government," Scheindlin agreed. "But if they would throw in [fellow American detainee Paul] Whelan, then it might be more palatable to our government."
A former Marine-turned-security executive, Whelan was arrested at a Moscow hotel in December 2018 over suspicions that he was an American spy. He was subsequently convicted of espionage and sentenced to 16 years in Russian prison, with the possibility of serving time at a labor camp.
Like Griner, Whelan has been deemed "wrongfully detained" by the US government. Still, Gilbert explained that the 52-year-old's case may pose even tougher negotiations with the Russians.
"It's really common for a government like Russia or Iran to accuse an American of being a spy, and that's a really convenient charge for them because the American public will basically never know," she said. "It makes it really complicated to think about what someone was doing in a foreign country and what kinds of deals the United States might be willing to make or not make to get that person home."
Whelan's murky situation and his shaky standing in the court of public opinion may drive up the cost of bringing him home. But experts say that hefty price — which, in all likelihood, would involve releasing Bout — could be one worth paying, especially if it secures the safe return of two Americans.
"Would I send him back tomorrow in exchange for Griner and
He added that, from his perspective, "the solution is pretty clear-cut." Franks even questioned "what the hell is taking so long" for the Biden administration to put forth a proposal on the two-for-one trade, which Scheindlin told Insider "wouldn't be a bad deal" for the US to take.
"Let's be real — this has been a national priority of the Russians since 2016 to get Viktor [Bout] home," Franks said. "With each passing day, he is less valuable as he gets closer to his release date."
Deal or no deal: 'The answer is a resounding maybe,' experts say
With up to 10 years in Russian prison awaiting Griner, supporters have been unrelenting and increasing the urgency of their calls for the star's expeditious return home.
But as nearly every expert, including Levin, would tell them, "there are a lot of competing interests here" that necessarily complicate the matter.
"There are all these other externalities of releasing somebody, which is encouraging their bad behavior," Levin said. "Releasing somebody who actually has been prosecuted in the United States, and probably for good cause, might be a public safety risk. And the expectation around the fact that when someone gets arrested for trumped up charges in Russia, they're gonna be able to be used as a bargaining chip, is exactly what Russia wants."
"So do we negotiate with a country that is holding American citizens in bad faith, where they're clearly doing it to exact some leverage over us?" he continued. "The answer is a resounding maybe."
Gilbert agreed. While she acknowledged that it's "not unprecedented and makes a lot of sense" for the US to negotiate for Griner and Whelan at the same time, she noted that the government's "strategy behind waiting is probably not foot-dragging."
Instead, she explained that the administration is "probably making sure that they have exhausted every other possible option" before giving up someone like Bout, whom Franks described as "more valuable than any prisoner [the US has] ever traded" in a wrongful detention case.
But there are perils to waiting too long before striking a deal in negotiations like these. Delaying an inevitable agreement, especially when the necessary concessions are apparent from the very beginning, only harms the detainees, Gilbert said.
"That feels like a really bad option," she added. "They've still made the concession that might incentivize future arrests, and the American has had to sit in prison or a penal colony or whatever it is for months, if not years."
Griner's agent, Lindsay Kagawa Colas, told Insider that she and those closest to the superstar "ask President Biden to do what is necessary to get a deal done to bring Brittney home as quickly as possible."
"Getting BG home will be seen and celebrated as a win for America," she added.
Franks agrees.
"The country needs something to feel good about right now," he said. "And bringing Brittney Griner and Paul Whelan home would be that."