American basketball star Britney Griner was transferred to a Russian penal colony this week to serve out her nine-year sentence for possession of vape cartridges containing cannabis oil. The transfer — which comes nearly nine months after she was detained in a Moscow airport in the days leading up to Russia’s unprovoked invasion of Ukraine — is the latest in a series of hurdles to dim hopes that Washington would be able to secure Griner’s freedom. Celebrity voices and online campaigns have expressed outrage over her detention, and the White House has signaled a determination to secure her release. But rhetoric and action remain at odds.

In this explainer, we explore how legal limitations and grim diplomatic realities conspire to weaken Washington’s hand when it comes to advocating for American citizens detained and imprisoned overseas.

When it comes to securing the release of Americans abroad, what kind of leverage does the US Government have under international law?

Diplomatically speaking, Washington’s options with respect to Americans detained overseas are broadly governed by the Vienna Convention on Consular Affairs (1963), any bilateral treaties that may apply to a specific situation, and customary international law.

Article 36 of the Vienna Convention stipulates that foreign detainees have the right to request timely notification of their arrests to their local embassies, and that consular officers from the local embassy or consulate should be entitled to visit the detainee “to convene and correspond with [them] and arrange for [their] legal representation.” The Convention notes that these rights will be afforded within the framework of local law and that the detainee has the right to refuse official support. Nearly every nation has ratified the Convention, including the United States and Russia.

While bilateral treaties can expand a country’s duties with respect to notification and visits, these vary broadly and warrant consideration on a case-by-case basis. And while customary international law is binding on all nations, its very existence as such tends to leave its provisions vague and open to wildly differing interpretations.

Ultimately, in the absence of highly favorable bilateral relations and/or agreements, international law does little to clear the path for US officials to do much beyond corresponding with and visiting prisoners abroad.

Despite the above limitations, does the US routinely work to secure the freedom of its nationals who are detained overseas?

The short answer is no.

Generally speaking, Washington’s options are limited when it comes to routine arrests for crimes alleged to have been committed by its nationals abroad.

Generally speaking, Washington’s options are limited when it comes to routine arrests for crimes alleged to have been committed by its nationals abroad. The US Government does not release statistics on the total number of US nationals who are detained abroad, but of those who fall into this category, the vast majority do not receive special treatment or concentrated advocacy efforts.

According to the US State Department, the agency responsible for coordinating with and monitoring the rights of American nationals jailed abroad, its officials can offer the following services:

• Provide the detainee with a list of English-speaking local attorneys;
• Contact family, friends, and others on behalf of the detainee;
• As needed, ensure prison officials are providing medical care to the detainee;
• Outline the local criminal justice process for the detainee;
• Clear the path for a visit from a clergy member should the detainee request one; and/or
• Establish a trust through which friends and family can help provide funding to the detainee.

US officials cannot, on the other hand (emphasis added):

• Get the detainee out of jail;
• Vouch for the detainee’s guilt or innocence in court;
• Provide legal advice or representation;
• Provide official interpretation or translation services; and/or
• Pay legal, medical, or other fees on behalf of the detainee.

In short, for most Americans detained abroad, the US Government can do little more than offer very general guidance and attempt to provide some relative comfort.

But for certain detainees, the US will ramp up diplomatic efforts. A key distinction in determining the type and extent of advocacy an American detainee will receive is that of whether they are categorized as “wrongfully detained” by US authorities.

How does the US determine which of its nationals have been “wrongfully detained” abroad, and what impact does this have on advocacy efforts?

US nationals determined to be “wrongfully detained” can benefit from Washington’s increased advocacy efforts, but diplomatic realities often leave little room for optimism that such efforts will pay off.

In an executive order released in July, some five months after Griner’s detention, US President Joe Biden conflated hostages with wrongfully detained Americans, declaring a national emergency to address the combined threat (emphasis added):

Hostage-taking and the wrongful detention of United States nationals are heinous acts that undermine the rule of law. Terrorist organizations, criminal groups, and other malicious actors who take hostages for financial, political, or other gain — as well as foreign states that engage in the practice of wrongful detention, including for political leverage or to seek concessions from the United States — threaten the integrity of the international political system and the safety of United States nationals and other persons abroad.  … Hostage-taking and the wrongful detention of United States nationals abroad constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States. I hereby declare a national emergency to deal with this threat.

In accordance with the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act, the US Secretary of State can determine that a US national has been wrongfully detained based on one or more of the following criteria (emphasis added):

• United States officials receive or possess credible information indicating innocence of the detained individual;
• The individual is being detained solely or substantially because he or she is a United States national;
• The individual is being detained solely or substantially to influence United States Government policy or to secure economic or political concessions from the United States Government;
• The detention appears to be because the individual sought to obtain, exercise, defend, or promote freedom of the press, freedom of religion, or the right to peacefully assemble;
• The individual is being detained in violation of the laws of the detaining country;
• Independent nongovernmental organizations or journalists have raised legitimate questions about the innocence of the detained individual;
• The United States mission in the country where the individual is being detained has received credible reports that the detention is a pretext for an illegitimate purpose;
• The individual is detained in a country where the Department of State has determined in its annual human rights reports that the judicial system is not independent or impartial, is susceptible to corruption, or is incapable of rendering just verdicts;
• The individual is being detained in inhumane conditions;
• Due process of law has been sufficiently impaired so as to render the detention arbitrary; and
• United States diplomatic engagement is likely necessary to secure the release of the detained individual.

The system is far from perfect; the fact that one official is vested with responsibility for making such designations makes it all but inevitable that some detainees who should qualify will be overlooked. Furthermore, the applicability of one or more of the above criteria creates ample room for interpretation, all but ensuring against uniform applicability.

But perhaps most importantly from a practical standpoint: Even once a prisoner has been designated as wrongfully detained, this doesn’t change Washington’s rights and limitations under international law. The effect is solely domestic.

It does, however, spring various officials into action, including the State Department’s Special Presidential Envoy for Hostage Affairs, the National Security Council’s Hostage Response Group, and the interagency Hostage Recovery Fusion Cell. These officials can develop strategies aimed at securing the release of detainees, but ultimately there’s only so much the US can do given the combined limitations of international law and the sort of strained diplomatic relations that tend to be present in wrongful detention cases. And these strategies don’t always have to be solely anchored in the Vienna Convention or bilateral treaties; an array of para-diplomatic and -legal strategies have been used with varying degrees of success in the past, such as prisoner swaps and celebrity diplomacy, as well as the threat or imposition of sanctions.

Ultimately, domestic policy can only go so far, and any successful release will hinge on a combination of legal, political, and diplomatic factors. Particularly in an era of rapidly changing geopolitical realities such as this one, Americans arrested abroad face an uphill battle that no number of avowals of “unwavering commitment” from the White House and State Department can resolve.