In freeing Griner, Biden faced resistance abroad and at home

By John Hudson, Devlin Barrett, Karen DeYoung, Missy RyanThe / Washington Post

15:42 JST, December 10, 2022

WASHINGTON – President Joe Biden’s 10-month effort to free Brittney Griner faced stubborn resistance from a Russian government bent on extracting maximum concessions for the WNBA star’s release.

But the president also faced opposition from his own Justice Department, which viewed Thursday’s one-for-one prisoner swap involving Griner and the notorious arms dealer Viktor Bout as a mistake given the discrepancy of offenses by the two prisoners, said officials familiar with the matter.

Griner, a two-time Olympic gold medalist, was arrested outside Moscow in February for possessing a small amount of cannabis oil. Bout, whose arms fueled conflicts from Sudan to Rwanda to Afghanistan to Angola, is nicknamed the “Merchant of Death,” and his illicit transactions with violent regimes and militant groups earned him a 25-year sentence in federal prison.

After the two passed within a few feet of each other on an airport tarmac in the Persian Gulf on Thursday, a public debate raged in the United States over how the government handles prisoner exchanges for citizens it considers “wrongfully detained.”

Supporters of Griner, civil rights leaders and LGBTQ advocates who had pressured the White House to bring her home hailed the swap as a long-overdue remedy to a travesty of justice. Critics, including Republican Rep. Kevin McCarthy (Calif.), who is vying to become the next speaker of the House, said the trade was “unconscionable” and risked detentions of more Americans abroad.

Privately, those same disagreements also played out inside the administration and cut across familiar bureaucratic lines, said senior officials. Like others interviewed for this report, they spoke on the condition of anonymity to discuss sensitive internal deliberations.

Negotiating for an exchange of prisoners often involves complex political trade-offs within different parts of the U.S. government, and the Griner-Bout case was no exception.

Within the Justice Department, many officials resisted the idea of trading Bout before his scheduled release in 2029, according to current and former officials. “If she were my relative, I would want to do the swap,” said one. “But trading a notorious international arms dealer for a basketball player is madness.”

The most painful aspect of the exchange was that it excluded Paul Whelan, a U.S. Marine veteran who is serving a 16-year sentence on espionage charges that the U.S. considers bogus.

For months, State Department officials had advocated a swap involving Bout that would include the release of both Whelan and Griner, but Moscow refused unless the United States also secured the release of Vadim Krasikov, a former colonel from Russia’s internal spy agency, said officials familiar with the matter.

Krasikov is serving a life sentence for murder in Germany and Berlin had made clear that releasing him was a non-starter, said a U.S. official.

In an effort to break the stalemate, Secretary of State Antony Blinken jettisoned traditional protocol and revealed in July that the Biden administration had made a “substantial proposal” to end the imprisonment of Griner and Whelan.

But the public-pressure tactic failed to dissuade Moscow from its outlook that the release of Whelan, whom it considers a spy, required an additional high-value trade separate from Griner.

“Sadly, for totally illegitimate reasons, Russia is treating Paul’s case differently than Brittney’s,” Biden told reporters at the White House on Thursday.

Russia’s demand for Krasnikov, and insistence that it would only trade Griner for Bout, one-for-one, continued until mid-November. At that point, the United States asked if Marc Fogel, an American citizen also imprisoned in Russia, could be included along with Griner. The Russians refused.

As a result, the administration decided to trade for Griner and keep negotiating for Whelan and Fogel in the future, a vantage point Blinken described bluntly on Thursday.

“This was not a choice of which American to bring home. The choice was one or none,” he said during a news conference in Washington.

The family members of both Whelan and Fogel expressed regret that the men were not part of the exchange.

Within the Justice Department, officials have long chafed at some of the prisoner exchanges pushed by the State Department, in part because law enforcement officials tend to believe that authorities should adhere to a “like for like” rule, in which only individuals of equal status or criminal history should be exchanged. For example, exchanging spies for spies has long been an accepted practice at both the State Department and the Justice Department – but federal law enforcement officials frequently object to proposed swaps of convicted criminals for people who committed relatively minor offenses.

During the Biden administration, the State Department has been seen as having an upper hand in these discussions, because the president is generally viewed as having spent more of his career focused on diplomacy than crime and is particularly close with Blinken, who has worked for him for decades. In recent months there have been a series of swaps or overtures for the return of prisoners in U.S. custody, including a number of individuals accused or convicted of committing crimes in coordination with the regime in Venezuela, according to current and former officials.

Bill Richardson, the former governor of New Mexico who was involved in helping negotiate Griner’s release, credited the president for green lighting the swap over the objections of the Justice Department.

“The president made a courageous decision,” he said. “Griner is an American icon and she was wrongfully detained.”

Blinken agreed with Biden’s decision to approve the swap, said a senior administration official, and has no regrets about how it played out.

“We make no apologies for making tough decisions if it results in the return of a wrongfully detained American,” said the official. “And, just as we’re doing that, we’re taking steps to deter other countries from engaging in this practice.”

Those steps include authorizing new sanctions and visa restrictions for individuals believed to be involved with hostage-taking and adding new information to travel advisories noting the increased danger of wrongful detention.

Bill McMurray, a former FBI agent, said it’s natural for hard decisions about prisoner swaps to be made outside the Justice Department.

“These swaps have been happening forever, and it’s not going to stop,” he said. “Those decisions ultimately do need to be made outside the Department of Justice, because people inside the Department of Justice and the FBI need to stay fully focused on doing our investigations.”

But law enforcement nevertheless worries that there will be negative consequences to the Griner-Bout trade that won’t immediately be apparent.

Robert Zachariasiewicz, a former DEA agent who was involved in the case against Bout, said he sympathized with the difficult situation her family was under but opposed the terms of the swap.

“We just showed that it is really useful to have an American in your back pocket because you never know when you need them to trade,” he said.

Bout was originally arrested in Thailand and extradited to the United States to face trial, but only after the Thai government came under tremendous pressure from Moscow to not comply with U.S. demands.

“It had a significant impact on the Thais’ willingness to help the United States because of the amount of pressure they were under at the time,” said McMurray. “All of these decisions have significant impacts that I don’t think the general public sees or fully understands.”

Senior current and former Justice Department officials who work on such prisoner exchanges note that part of their long-standing arguments to foreign governments when they seek arrest and extradition of foreign nationals is that the United States does not pursue criminal cases for political reasons – but turning around and later swapping Bout or others after they have been tried and convicted sends a signal that politics does influence U.S. prosecution decisions, potentially making it harder to accomplish future arrests and extraditions.

“Most people in law enforcement believe that America needs to be seen as a rule-of-law nation, and that we run the risk of undermining our own arguments around the world if we play that same game and politicize our criminal investigations,” said McMurray.