No sooner had WNBA star Brittney Griner and convicted arms dealer Viktor Bout crossed paths on the tarmac at the Abu Dhabi airport than the debate began in this country: Was the United States fleeced when it gave up Bout for Griner, while leaving former Marine Paul Whalen behind?

The arguments on both sides have been fervid, often verging on the vituperative. Critics say Griner was not worth the trade. They have referenced the time she refused to come out of the locker room for the national anthem; “Brittney Griner Hates America” is trending. On the other side, supporters of the deal have blamed “pay inequity” for Griner’s arrest, arguing that sexism compels WNBA athletes to play in hostile countries like Russia to earn extra income. Some have also mentioned that Whalen is no angel; he received a “bad conduct” discharge from the Marines, due to larceny.

All this sniping misses the point. The swap’s significance transcends Griner, Bout, and Whalen. It even transcends Russia. The trade is a symptom of a new and dangerous form of warfare being waged against this country by several foreign governments: seizing and holding American citizens to humiliate the United States and to advance these nations’ foreign policy objectives.

 We are accustomed to terrorist organizations, such as ISIS or al-Qaeda, kidnapping and murdering Americans. But according to a recent report from the James Foley Foundation, the number of such crimes is waning. In its stead, a growing number of such seizures are committed, not by terrorist organizations, but by foreign governments.

Russia is not alone in imprisoning Americans as a method of conducting foreign policy. China, Iran, Syria and Venezuela are also employing this same barbaric tactic.

The report found that at least 153 Americans have been wrongfully detained by state actors since 2001, and the trend is moving upward. From 2001 to 2011, an average of 5 Americans were being held hostage each year by state actors. Since 2012, that number has increased to 34 per year, a 580% increase. In contrast, the average number of Americans held hostage by terrorist organizations has actually decreased; the figures for 2012 to 2022 are 40% lower than for 2001 to 2011.

The failure to come to grips with this form of warfare explains why much of the debate over the Griner for Bout swap is misplaced.

For example, many commentators have focused on the fact that Griner is a black lesbian, while Paul Whelan is a white male. Opponents of the deal were infuriated by a tweet from Randi Weingarten, head of the American Federation of Teachers, that appeared to extol Griner’s release on identitarian grounds, while treating Whelan’s predicament as a mere afterthought: “What a great relief!!! Extraordinary news, a basketball star, but also a gay, black woman is released,” Weingarten tweeted. “And yes of course we want other prisoners like Paul Whelan released.”

Donald Trump Jr. tweeted back: “The Biden Admin was apparently worried that their DEI score would go down if they freed an American Marine.”

The partisans on both sides seem oblivious to the fact that they are playing the roles that Russian foreign policy intended. Under Vladimir Putin, the Kremlin has followed a strategy of stoking division in America, pitting Left against Right by amplifying such hot-button topics as white supremacist marches and kneeling at sports events. We may assume that Putin knew exactly what he was doing when he authorized Griner’s arrest, and he knew exactly what he was doing when he allowed her release while retaining Whelan. He knew that these actions would pick at the scab of race relations in this country.

The Weingarten and Trump tweets are evidence that the Russian strategy is working. Instead of uniting in joy at the freeing of Griner, instead of uniting in resolve to see Whelan released, the American people are dividing themselves over the swap. Kremlin visages must be smiling.

The failure to note that the Griner seizure was the action of a foreign government, rather than a terrorist organization, renders the national debate inapposite in other ways as well. For example, some have defended the apparent imbalance of the trade by pointing to the experience of Israel, which routinely engages in lop-sided trades to secure the release of their people. In one notorious example, the Israelis released 1,027 Palestinian security prisoners in exchange for a single staff sergeant named Gilad Shalit.

But what may be sensible policy in dealing with terrorists is not necessarily rational when dealing with foreign governments. Terrorists do not have embassies, diplomats, trade delegations, or sports teams. Retaliation is difficult because terrorists, in a well-worn phrase, do not have return addresses. Foreign governments do.

If we are to learn from the Griner-Bout swap, we must first recognize that the unjust incarceration of Americans by state actors is a species of warfare. It does not amount to a shooting war. But it does include the use of force wielded against Americans to advance the interests of foreign, hostile powers.  Once we recognize that fact, we can proceed to figure how best to defend against it.

Economic sanctions – such as travel bans, asset freezes, and trade restrictions — are one possible defensive weapon. But we already employ that weapon against Russia and other countries, such as Iran, Syria, and Venezuela, who are holding our citizens illegitimately. It is doubtful that economic sanctions will suffice to deter.

The United State should consider escalating beyond economic sanctions to outright confiscation. We and our allies have frozen more than $30 billion in Russian-owned funds and assets since the invasion of Ukraine. Whatever is frozen today may be unfrozen tomorrow. The prospect of one day recovering unfrozen assets may dull the pain of that particular tactic, limiting its effectiveness.

So why not go beyond freezing to outright confiscation? For example, for every day the incarceration of Paul Whelan continues, why not sell off a billion dollars worth of Russian-owned financial and business assets? That would certainly raise the cost of imprisoning Americans as a method for pursuing foreign policy goals.

Beyond economic assets, the United States should consider how it might acquire human assets to use as leverage in future negotiations.  Recall the Israeli example of releasing 1,027 Palestinian security prisoners in exchange for one Israeli. That raises the question: how did the Israelis happen to have 1,027 prisoners to expend in such a deal in the first place? They did not simply fall into the Israelis’ laps.

The United States need not follow the Russian example of seizing innocents. As a nation, we are not about to countenance the seizure of visiting Russian athletes or artists on some sham pretext. But not all Russian visitors within our borders are innocent.

Both during and after the Cold War, Russian visitors have sought to infiltrate American businesses and academic institutions to gain technology and influence. If innocent Americans abroad are going to continue to face the risk of unjust incarceration, we should be prepared to identify and collect not-so-innocent foreign visitors to use as bargaining chips.

We might even go so far as to re-examine the doctrine of diplomatic immunity, which prohibits suits against foreign diplomats and consular officials. The doctrine is based on principles of international law  thousands of years old. It is articulated in the Vienna Convention on Diplomatic Relations, which was ratified by the United States in 1972 pursuant to Article II of the Constitution. As a treaty, the Convention has the full force of law in the United States and is recognized as part of the supreme law of the land pursuant to Article VI of the Constitution.

Under that doctrine, a Russian diplomat caught spying is declared persona non grata, and expelled rather than prosecuted. Of course, once a diplomat is expelled, he is of no use in negotiating transactions such as the Griner swap.

If the seizure and unjust detention of American citizens continues, the United States should consider withdrawing from the Vienna Convention, or modifying its adherence to exclude from its benefits those foreign diplomats employed by states which kidnap Americans as a matter of state policy. We must of course proceed cautiously. Any actions by the United States that expose foreign diplomats to arrest will inevitably be followed by retaliation. But if private American citizens are being seized and used as pawns, that risk may be worth taking.

Whatever defensive tactics we adopt, the most important thing is to recognize that the arrest and detention of Brittney Griner was not an isolated event. It was part of a growing trend among state actors to use innocent Americans as leverage. These actions are, and should be properly understood as, a form of warfare. When we understand that, we may also remember that when America is under attack, the traditional response of its citizenry has always been to unite, not to divide.

1 Comment

Filed under Foreign Policy, Law


  1. Cathy

    Good insights. I really had not recognized the shift to state action motivated by the intention to further polarize the American public.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s