American Held in Moscow a Prisoner to Paperwork

Paul Whelan’s family can’t discuss his case with the U.S. Embassy until he returns a signed waiver.

Paul Whelan, a former U.S. Marine accused of espionage and arrested in Russia, speaks with his lawyers from inside a defendant's cage during a hearing at a court in Moscow on Jan. 22. (Mladen Antonov/AFP/Getty Images)
Paul Whelan, a former U.S. Marine accused of espionage and arrested in Russia, speaks with his lawyers from inside a defendant's cage during a hearing at a court in Moscow on Jan. 22. (Mladen Antonov/AFP/Getty Images)

The family of Paul Whelan, a former U.S. Marine detained in Moscow on suspicion of espionage, says that a simple bureaucratic form has hamstrung their efforts to advocate on his behalf and receive information about his case from the U.S. State Department.

Under the 1974 U.S. Privacy Act, consular officials dealing with Americans detained abroad cannot release any information about the case, including to family members, or launch a public advocacy campaign without their written consent.

In Whelan’s case, U.S. officials had to wait almost six weeks before they were allowed to bring the consent waiver to Lefortovo Prison in Moscow, where Whelan is currently being held. But instead of signing and returning the two-page document on the spot, Whelan was forced to wait to sign it and mail it back to the embassy.

David Whelan, his brother, said that as of Thursday, when the family last spoke to the U.S. Embassy in Moscow, the waiver had not been received. 

To date, the family has been receiving messages from Whelan via his legal team in Moscow. Whelan’s appointed lawyer, Vladimir Zherebenkov, has raised eyebrows for implying his client was guilty in an interview with the Daily Beast.

“Russian authorities have obstructed some of our routine efforts to provide consular assistance,” a State Department official told Foreign Policy. The official stressed that the department will not go into details of correspondence with Whelan but that it has “shared information as appropriate with his family and with the public.”State Department Deputy Spokesman Robert Palladino said in a statement to FP the department “remains in regular contact with the Whelan family.”

Bill Richardson, a former New Mexico governor and U.S. ambassador to the United Nations who has helped negotiate the release of political prisoners worldwide, said that prohibiting access to the privacy waiver was often used as a roadblock by the Russian authorities. “It’s another bargaining chip. It’s like, all right, so why should we do this for you?” he said.

The former officials and lawmakers involved in the case believe Russia arrested Whelan on trumped-up espionage charges—which his family insists are false—to use as leverage with the U.S. government as ties between Washington and Moscow reach a new low in the post-Cold War era. They are still unsure what Russia wants.

Whelan’s arrest came just weeks after a Russian, Maria Butina, pleaded guilty in the United States to conspiring to act as a foreign agent, prompting speculation that Whelan could have been apprehended as a potential swap for her.

Democratic Rep. Bill Keating, the congressman for the Massachusetts district where Whelan’s sister lives, says he has been in close contact with the family and the U.S. Embassy in Moscow regarding the case.

Keating said he was informed by the U.S. Embassy that Whelan was the only American citizen currently held in Lefortovo not to have signed the privacy waiver. He also noted that Whelan was also the only American currently held in the custody of the Federal Security Service, the successor agency of the KGB.  

David Whelan told Foreign Policy that he believed that the obstacles his brother faces come not from prison authorities but from higher up. “It’s happening at the investigative level,” he said.

The Whelan family has circulated a draft bill that would allow U.S. citizens to waive their rights verbally in instances where they were unable to receive or sign a paper waiver.

David Whelan said that while the family was pleased with the level of consular support provided by the U.S. Embassy in Moscow and American Citizen Services in Washington, D.C., they were frustrated as to why the case hasn’t been raised at higher levels.

“At some point you start to question that faith that you put in your government,” he said.

On Jan. 2, Secretary of State Mike Pompeo said that the United States had asked for an explanation from Russian authorities and would demand Whelan’s release if the charges were not appropriate. Since then, the administration has been largely silent on his case.

“We take seriously our right to visit detained U.S. citizens regularly and ensure they receive humane treatment and access to medical care,” Palladino said, and he stressed the safety of U.S. citizens abroad “is of the utmost importance” to the U.S. government.

According to the department, U.S. officials to date have had two visits with Whelan: one on Jan. 2, when U.S. Ambassador to Russia Jon Huntsman visited him, and one on Feb. 5.

Prison visits are usually conducted by other members of consular staff, and a visit by the ambassador was interpreted as a strong statement by the embassy.

U.S. Embassy representatives also attended his pretrial hearing in Moscow on Jan. 22.

Richardson said the U.S. government sometimes downplays publicity of a detained American citizen to help quietly secure their release. But in this case, the U.S. side’s low-key approach may be in part be due to the delay in getting a privacy waiver from Whelan.

In the six weeks since Whelan’s arrest was announced by the Russian security services, U.S. President Donald Trump has yet to make public mention of the case—a stark change from high-profile cases in the recent past where Trump has railed against foreign governments for detaining American citizens in statements and tweets.

Trump has sought to make the repatriation of Americans detained abroad a signature of his administration, and Pompeo has insisted it is one of the administration’s highest priorities. Some countries have been accused of using detained U.S. citizens as geopolitical pawns in broader showdowns with the United States, including North Korea and Turkey.

Richardson said he suspected Moscow would seek to extract some kind of concession from Washington in a deal to get Whelan returned.

Separately, Whelan’s family is also trying to get a signed power of attorney form from him to access his bank accounts, so they can explore hiring a different legal team.

“It’s not clear whether [Zherebenkov] is that supportive of Paul’s case,” David Whelan said.

Zherebenkov has speculated publicly about whether Whelan could be exchanged for a “Russian soul,” Butina, who was convicted in the United States of acting as an unregistered agent for Russia amid Moscow’s interference in the 2016 presidential elections.

The lawyer also told Russian media that Whelan’s family was on their way to Moscow. His brother said that no such plans were ever made, and this has caused them to doubt statements made by Whelan’s counsel.

Journalists at the Daily Beast found Zherebenkov on vacation in the Dominican Republic when they called him in the first weeks following Whelan’s arrest. Paul Whelan was detained by Russia’s Federal Security Services on Dec. 28. The American, who has visited Russia on a number of occasions, traveled to Moscow for a friend’s wedding.

Russian authorities have yet to disclose any details of the accusations against him, beyond the fact that he is charged with espionage.

A spokesperson for the Russian Ministry of Foreign Affairs said, “The U.S. citizen Paul Whelan was arrested while carrying out an act of espionage, thus the spying charges are based on irrefutable evidence.”

Former members of the U.S. intelligence community have said that it is highly unlikely that Whelan was engaged in espionage on behalf of the U.S. government, as he did not have diplomatic immunity. His background in the Marines and work in security could have attracted the interest of Russian security services.

Whelan’s lawyer has told the media that his client was detained moments after he was handed a USB drive containing sensitive government information. Zherebenkov said that Whelan was under the impression that the drive had photographs and information about a church he had visited.

Speaking to FP, Whelan’s brother said that the former Marine had lost weight some weight but was otherwise in good health.

Due to his family lineage, Whelan has passports from four countries: the United States, Canada, Ireland, and the United Kingdom. Whelan has indicated that he would like the United States to take the lead in handling the case, but he has also received consular staff from the Irish, British, and Canadian embassies.

Amy Mackinnon is a national security and intelligence reporter at Foreign Policy. Twitter: @ak_mack

Robbie Gramer is a diplomacy and national security reporter at Foreign Policy. Twitter: @RobbieGramer

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