Just days after Wall Street Journal reporter Evan Gershkovich was arrested in Russia on accusations of spying, Secretary of State Antony Blinken called his counterpart in Moscow to express his “grave concern over Russia’s unacceptable detention of a U.S. citizen journalist” and demand his “immediate release,” according to a State Department summary of the call.
Eight days later, the State Department formally declared that Gershkovich was being “wrongfully detained,” a rare designation that puts the full force of the U.S. government behind securing his release.
The speed with which the U.S. determined Gershkovich was being wrongfully held was a reflection of the brazen nature of his arrest, the first of a U.S. journalist on espionage charges in Russia in decades. Yet it has also highlighted the process by which Americans overseas are deemed to be wrongfully detained, one that advocates for detainees’ families say can still be frustratingly opaque.
Here’s what it means for an American held overseas to be “wrongfully detained,” and what that designation means for Gershkovich:
What does it mean to be “wrongfully detained”?
The vast majority of Americans who are arrested or detained abroad are not found to be wrongfully detained. According to the State Department, “most cases of U.S. nationals arrested or detained overseas arise out of legitimate law enforcement and judicial processes.” These Americans get consular support from the State Department, but the government does not actively seek their release.
But in some instances, the State Department determines the American’s detention is illegitimate because they are being held as a bargaining chip by a hostile regime, were denied due process in the foreign country’s legal system or are innocent of the charges against them, among other reasons.
In addition to Gershkovich, several other Americans imprisoned in Russia in recent years — including WNBA star Brittney Griner and former Marines Trevor Reed and Paul Whelan — have been deemed to be wrongfully detained, while others have not.
How does the U.S. determine when a U.S. citizen is wrongfully detained?
In assessing whether an American is being wrongfully detained by a foreign government, the State Department considers the criteria outlined in the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act, which became law in 2020. The act is named for a former FBI agent who disappeared in Iran in 2007 and is believed to have died while in captivity.
The law created a framework for the State Department to use to determine whether a foreign government has wrongfully detained someone. It has 11 criteria, only one of which must be met in order to earn the designation, according to Jonathan Franks, a spokesman for the Bring Our Families Home Campaign for relatives of wrongfully detained Americans.
Someone can be deemed to be wrongfully detained if the U.S. has credible information indicating they are innocent; the person was detained because they’re an American, to influence U.S. policy or to secure concessions from the U.S. government; they have been denied due process; or they were promoting freedom of the press, religion or assembly, among other reasons.
The secretary of state makes the final call. The State Department declined to be more specific about the process that goes into making a determination one way or another, with a spokesperson saying each review “assesses the facts of the case against numerous criteria.” Citing “privacy or operational reasons,” the spokesperson said the department does “not always make wrongful detention determinations public.”
What happens once an American receives the designation?
Once the secretary of state designates someone as wrongfully detained, the law requires the U.S. government to work to earn their release. If a person is not designated, their case remains with the Bureau of Consular Affairs, which essentially conducts wellness checks and cannot negotiate for a person’s freedom.
But if they are deemed to be wrongfully detained, the case is transferred from Consular Affairs to a division known as the Office of the Special Presidential Envoy for Hostage Affairs, or SPEHA, which is solely focused on negotiating for the release of detainees and hostages around the world. The designation also allows the U.S. to put more resources toward securing the person’s release and to impose sanctions against the country holding them.
“It’s so critical, because otherwise your case is being handled in Consular Affairs. And it’s not Consular Affairs’ remit to work towards the release of Americans,” said Cynthia Loertscher, director of research, hostage advocacy and government affairs at the James W. Foley Legacy Foundation. “[SPEHA] become the advocates and they work towards coming up with solutions and resolutions.”
Negotiations over a detainee’s release are often not made public, and the designation does not guarantee that a person will be released. Whelan is still imprisoned in Russia, while Griner and Reed were released in prisoner swaps in 2022.
The process can be slow, but public pressure can speed it along
The State Department did not make a formal announcement when it determined Reed and Whelan to be wrongfully detained.
David Whelan said his brother Paul was officially designated as wrongfully detained on April 7, 2022, more than three years after he was arrested on espionage charges. There was no official announcement. The family received notice via a letter from the U.S. government, he said.
“Before the Levinson Act, the determination didn’t exist,” David Whelan said in an email, referring to the 2020 law. “It took huge amounts of advocacy and lobbying by our sister, Elizabeth.”
A presidential policy directive issued by then-President Barack Obama in 2015 established the Special Presidential Envoy for Hostage Affairs and laid out how to handle cases of Americans held hostage by non-state actors, but it didn’t address wrongful detainees. The Levinson Act codified the directive and spelled out the 11 criteria for determining when someone is wrongfully detained.
Reed’s family was told on July 30, 2020, the day he was sentenced to nine years in prison, that he was designated as wrongfully detained, Franks said. He had been arrested a year earlier.
The U.S. declared Griner was wrongfully detained within 3 months, while Gershkovich received the designation in less than two weeks. The high-profile nature of the arrests of Griner and Gershkovich — an internationally renowned basketball star and a reporter at one of the world’s most prestigious publications — meant they had the power of media attention and public pressure behind securing their release.
“The [U.S. government] got Evan’s case right, but the fact remains that non-famous cases never get handled with the same urgency,” Franks said, referring to Gershkovich.
How many Americans are wrongfully detained abroad?
According to the James W. Foley Legacy Foundation, there are at least 54 Americans being held abroad as hostages or wrongfully detained. The foundation does not rely on the State Department to make an official determination about a prisoner’s status, instead using the criteria from the Levinson Act to make its own determinations.
The State Department would not confirm how many Americans are wrongfully detained abroad, with a spokesperson saying the “numbers are fluid” and citing “privacy concerns and the sensitivity of ongoing efforts to secure the release of all U.S. nationals.”
What comes next in the Gershkovich case?
Roger Carstens, the current Special Presidential Envoy for Hostage Affairs, will now handle Gershkovich’s case and work to secure his release.
“Now that he is wrongfully detained, we start to work on negotiating strategies and working with the Russians to find Evan’s release, and not only Evan, but Paul Whelan as well,” Carstens told “CBS Mornings” on Wednesday.
He said the U.S. does not “have a sense” of how the Wall Street Journal reporter is being treated, since officials have not been given access to him. Carstens declined to say more about what was being done to secure his freedom.
President Biden said he spoke to Gershkovich’s family members before leaving on an overseas trip on Tuesday.
“We’re making it real clear that it’s totally illegal what’s happening, and we declared it so,” he told reporters. “It changes the dynamic.”
While families of other detainees are happy to see movement in his case, Franks said, they have felt the cases of their loved ones have been ignored.
“Many of our families have been waiting for a determination of wrongful designation and a phone call or meeting with the President for years,” Franks said in a statement Wednesday. “It was heartbreaking to see once again that an Administration that talks a lot about equity chose to neglect our non-famous hostages.”
Franks said Bring Our Families Home has requested several meetings with the president.
“We call upon the Administration to make good on their promises of equity by doing what they have for Evan’s case for us ALL,” the statement said. “That’s what equity means to us.”