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Rethinking US Foreign Policy Strategy on Wrongful Detention

Written by Ikechukwu Uzoma and Mooya Nyaundi

Russia’s arrest of Wall Street Journal reporter Evan Gershkovich feeds into a worrying pattern of wrongful detention, including hostage-taking, of Americans overseas. More than 60 U.S. citizens and legal permanent residents are currently wrongfully detained abroad.

With rising geopolitical tensions and the consequent Cold War-style polarization, this trend is likely to continue. In response, the United States must not only work to reunite detainees with their families, but also to reduce the likelihood of the hostage-taking itself. The president and Congress already have the necessary legal tools. With more funding and better implementation of current law, the U.S. government might have the carrots and sticks needed to take a proactive approach to deter governments from nabbing Americans when they travel or work abroad.

The dramatic increase in the average number of U.S. persons wrongly detained abroad – which has increased 175 percent during the past 10 years – highlights the need for a new approach. Since 2001, the risk has also spread geographically as the number of countries that have wrongfully detained U.S. persons skyrocketed from four to 27. Five of these countries – China, Iran, Russia, Syria, and Venezuela – account for 75 percent of the wrongful detention cases.

In 2015, facing political pressure from detainees’ families, President Barack Obama signed an executive order that created the Office of the Special Presidential Envoy for Hostage Affairs within the U.S. Department of State; established an interagency Hostage Recovery Fusion Cell within the FBI; and directed more cooperation across the U.S. government.

Obama also broadened the definition of a wrongfully detained person: not only would that include U.S. citizens and permanent legal residents but also non-U.S. citizens, when the United States has a national interest in that detention.

Both Presidents Donald Trump and Joe Biden have continued to build on Obama’s policies. In June 2020, Trump signed the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act, which codified key elements of the Obama-era policies and empowered the Secretary of State to make wrongful-detention determinations. The law was named in honor of former FBI agent Bob Levinson, who disappeared in 2007 while on a visit to Kish Island in Iran, apparently as a CIA contractor, and is believed to have died after 13 years of wrongful detention in the country.

In July 2022, Biden declared a national emergency to bolster efforts to bring hostages and detainees home, and attempt to prevent such abductions in the first place. The Biden administration has facilitated the release of 27 previously detained U.S. persons in the last two years. In some cases, the president agreed to prisoner exchanges and other undisclosed concessions. For example, in order to secure the freedom of Women’s National Basketball Association star Britney Griner last year, Biden agreed to release Viktor Bout, a notorious arms dealer, from a U.S. prison and hand him over to Russia, which promptly freed Bout.

Some Progress, But Not Enough

Detainees’ families and NGOs have acknowledged that the U.S. legal and policy framework for addressing wrongful detention has had a positive effect, especially to improve information dissemination, family engagement, and intragovernmental collaboration.

But the government’s initiatives have not deterred detentions.

In August 2020, two months after the passage of the Robert Levinson Act, U.S permanent resident and Presidential Medal of Freedom recipient Paul Rusesabagina was abducted in Dubai and flown to Rwanda, where he was wrongfully detained for 939 days. Gershkovich’s recent arrest happened contemporaneously with Rusesabagina’s release following years-long high-level negotiations between U.S. and Rwandan officials. In essence, even as one detainee was being released in Rwanda, another was detained in Russia.

The 2022 Bring Americans Home Report, produced for the fourth year by a foundation named for American journalist James Foley, who was abducted and killed by ISIS in Syria, recommended a review of the U.S. government’s wrongful detention response architecture in order to guarantee the return of more detainees. The report urged the government to enhance the capacity, funding, and overall support for the Office of the Presidential Envoy and the FBI’s Hostage Recovery Fusion Cell, as well as other structural and procedural improvements.

The James W. Foley Legacy Foundation also fiscally sponsors the Bring Our Families Home campaign, led by family members of five detained U.S. citizens in Venezuela, Iran, and China. The campaign has called on Biden to directly engage with all detainee families, as he has done in the cases of Griner and Paul Whelan, a former U.S. Marine wrongfully detained in Russia since December 2018. The campaign argues that, without the direct intervention of the president, little progress will be made in getting their loved ones home. The Biden administration has defended the President’s failure to meet all detainee families, stating that families of most of the released detainees never met with the president.

Preventing Detentions in the First Place

Coupled with these recommendations for structural adjustments, a proactive approach is critical for addressing the wrongful detention problem in a holistic manner. The present U.S. approach is overly reactive, because of its narrow focus on bringing home wrongfully detained Americans, without attention to, as both the Obama and Biden executive orders and the Levinson Act require, actions that could “reduce the likelihood of U.S. nationals being taken hostage abroad.”

Simultaneously implementing the prevention and recovery components of U.S. law and policy on wrongful detention with similar vigor would provide a framework for the United States to resolve existing cases while preventing future occurrences. This includes implementing Sections 4 and 5 of Biden’s executive order which provide for the public identification and designation of officials of foreign governments who are involved directly or indirectly in wrongful detention, and the seizure of their assets. Moreover, the inclusion of the threat of wrongful detention as a primary risk indicator on the U.S State Department’s travel advisories for all countries where Americans have been held could serve as both a punitive measure and a deterrent.

In addition, U.S. foreign policy can be used to address wrongful detentions in domestic contexts, including in relation to U.S. allies and partners. Biden could, for example, condition security-sector assistance and other foreign aid on the degree to which a government respects the rule of law and observes international standards for fair trials and deprivation of liberty of their citizens. Adopting a strong and vocal U.S. stance against wrongful detention of allies’ and partners’ own citizens – perhaps with special attention to cases of human rights defenders, dissidents, and other domestic critics – might also reduce the likelihood that those countries would wrongfully detain U.S. persons, whether on their own initiative or at the behest of unfriendly nations such as Russia and Iran.

What’s more, putting human rights at the forefront of any policy framework would be a proactive step. Under the U.S. Constitution, the government has the responsibility to protect and promote individual liberty, and those same obligations are reflected in international human rights treaties that the United States has signed. Therefore, the U.S. government should consider the implementation of its policy on wrongful detention as part of its responsibility under domestic and international human rights law. Besides, liberally interpreting the national interest clauses of U.S. policy on wrongful detention of non-U.S. persons enables the government to address harmful foreign State practices that may pose a threat to U.S. persons in the future.

The Biden executive order requires the government to impose costs on those who participate, support, or facilitate wrongful detention, and to do so in coordination with like-minded governments and organizations. The United States could use multilateral institutions, such as the G7 and the United Nations, to galvanize support against wrongful detention, including through joint sanctions regimes against bad actors. Expanding the scope of the U.S. Magnitsky regimes to cover perpetrators of wrongful detention and encouraging the European Union to do the same, increases the scale of deterrence against further proliferation of the conduct globally. The United States also should support the mandate of the U.N. Working Group on Arbitrary Detention and regional human rights mechanisms in Africa, Europe, and the Americas, which can be useful for keeping track of developments that suggest an emerging threat of wrongful detention in those regions.

Finally, the United States must fix its domestic arbitrary detention issues. The U.S. government’s use of rendition and torture, particularly against suspected terrorists, drew global criticism. More recently, its immigration-detention policies, such as the disproportionate, unreasonable, and unnecessary mass detention of immigrants, in violation of international standards that require a case-by-case assessment, has also attracted international censure. These failures at home have greatly undermined U.S. moral authority to effectively advocate against the use of arbitrary detention abroad. This contradiction must be addressed as part and parcel of an effective foreign policy.

The practice of wrongful detention anywhere is a threat to U.S. persons everywhere. That’s why it should be a top priority in U.S. domestic and foreign policy.

Ikechukwu Uzoma

Ikechukwu Uzoma (@iykepfs) is an international human rights lawyer. He leads the Africa portfolio at Robert F. Kennedy Human Rights’ international program, and has played a pivotal role in legal interventions for high-profile cases such as those of Paul Rusesabagina and the Nigeria Twitter Ban.

Mooya Nyaundi

Mooya Nyaundi (@mooyalynn) is Advocacy Director on US-Africa Foreign Policy at Open Society Foundations-US. She has worked extensively on issues of human rights, rule of law and democracy in Sub-Saharan Africa.

Read the original article in Just Security here.