The Maddening Limbo of Paul Whelan

In the four months since David Whelan awoke early on New Year’s Eve and learned from a computer search that his missing brother, Paul, had been detained in Moscow on suspicion of espionage, his family has been living a nightmare that seems straight out of Kafka.

It’s not just that the Whelan family has been forced to contend with the byzantine bureaucracy of Moscow’s notorious Lefortovo Prison and the whims of an investigator from the FSB, Russia’s security services and the successor to the KGB. David Whelan says the family is also fighting the complex machinations of U.S. diplomacy, which critics believe is failing his brother, a former U.S. Marine. David said he has been told by the State Department that until it sees evidence that Russia’s case against Paul has no basis—information that Russia is unlikely to provide—the U.S. government cannot move his case over to a powerful interagency fusion cell that focuses on identifying and bringing home U.S. citizens detained abroad.

The experience has thus turned into a maddening Catch-22 for Whelan’s family as they wait for the Russian government to, in essence, provide the U.S. government evidence that it has no evidence to support a case against Whelan.

“We don’t really see any resources being diverted or made available for people who are being detained in Paul’s situation,” David Whelan said. “They [the U.S. government] said that they would essentially watch and wait. … They’re waiting for the facts to come from the Russian authorities, who have absolutely zero motivation to share what information they have.”

While the Trump administration has touted securing the release of American hostages and detainees abroad as a central foreign-policy achievement, Paul Whelan, 49, has languished in the Russian prison system in pretrial detention since he was arrested on Dec. 28, 2018.

U.S. officials, including Ambassador to Russia Jon Huntsman, seem baffled by Russia’s handling of Whelan’s detention. “I don’t think there’s a case there. If there’s a case, I think the evidence would have been brought forward by now,“ Huntsman said in an interview with Radio Free Europe/Radio Liberty on April 12. “Let’s move on and quit playing these games.“

A State Department spokesman told Foreign Policy, “We are concerned by the lack of evidence that has been presented in Mr. Whelan’s case. We urge the Russian government to ensure due process and fair trial guarantees, including a fair and public hearing without undue delay.”

But Whelan’s case presents a diplomatic conundrum for the United States as it navigates its fraught relationship with Russia amid tensions unseen since the Cold War. Many former U.S. officials and experts cast doubt on Russia’s claims that Whelan is a U.S. spy, and they suspect Moscow is using him as a bargaining chip with Washington—though it’s still unclear exactly what for. (Whelan’s family flatly denies the charges.) But his case also blurs the lines between a defendant in a court case and a hostage situation—all in a country infamous for its powerful security services and the use of murky legal cases for political aims.

“An American citizen has been detained and arrested without charge. It’s exactly the same thing as essentially a hostage situation, which requires the same resources,” said Ryan Fayhee, a former prosecutor for the U.S. Department of Justice’s counterintelligence division who is working pro bono on behalf of the Whelan family.

The Whelan family believes Alexey Khizhnyak, the FSB investigator overseeing the case in Moscow, is obstructing their efforts to advocate for Paul in Russia’s notoriously opaque justice system. Khizhnya has blocked Whelan from sending mail. Of the many letters sent to Whelan, he has been allowed to see only three of them. The family claims that books ordered from local stores, including a Russian-English dictionary, have been held by the investigator. (Whelan speaks a little Russian but is not fluent.) When a member of the Moscow Public Oversight Commission, an independent watchdog that monitors Russian prisons, visited Whelan in prison in January, they were reportedly barred from speaking to him in English.

For weeks, Whelan also was prevented from signing a privacy waiver that would enable U.S. consular officials to share details about his case and mount a public advocacy campaign on his behalf. Rather than handing it over during a visit from U.S. Embassy staff, Whelan was forced to return the document in the mail, where it went missing. His lawyers were eventually able to hand-deliver a copy from the prison to the embassy. After significant delays, Whelan was able to sign a power of attorney that will allow his family to oversee his affairs and access his bank accounts to help pay for his lawyers.

But that too is still in the mail.

Due to his family lineage, Whelan has passports from Canada, the United Kingdom, and Ireland as well as the United States. Consular officers from all four embassies are overseeing his case.

According to Whelan’s brother, FSB officials forbade British Embassy staff visiting Whelan to discuss anything with him except the conditions of the prison. Prison authorities would not allow them to mention Whelan’s ongoing health issues or share the latest world news. They even barred embassy staff from sharing which teams made it to the final four of the NCAA men’s college basketball tournament when Whelan asked about it.

“It is the latest example of the FSB investigator interfering with Paul’s access to full consular support,” David Whelan said.

U.S. engagement with Whelan has been limited to a handful of visits between U.S. diplomats in Moscow, including Huntsman, to check on his health and well-being. The State Department spokesman said U.S. consular officers at the embassy have visited Whelan five times since he was detained, most recently on April 4. The spokesman added the department is in regular contact with his family.

The embassies of the four countries from which Whelan holds passports are coordinating efforts to get him seen by a doctor outside of the prison.

Fayhee, the lawyer for the Whelan family, said that the former Marine’s visa to Russia was sponsored by BorgWarner Inc., a U.S. auto parts manufacturer, where he worked as global security director. For decades the company has supplied parts to Kamaz, Russia’s largest truck manufacturer. Kamaz’s director, Sergey Anatolyevich Kogogin, was the co-chair of President Vladimir Putin’s re-election campaign last year.

Kamaz is 49.9 percent owned by the state conglomerate Rostec, a defense and technology giant hit with U.S. sanctions in the wake of Russia’s invasion of Ukraine in 2014.

A spokesperson for BorgWarner declined to offer any specifics on Whelan. “As a general policy BorgWarner does not comment on travel of any of its employees, nor does the company discuss information about individual customers,” the spokesperson said.

Beyond that, Whelan’s family feels the U.S. government is hamstrung by its own rules. In other hostage cases, the government brings together the Hostage Recovery Fusion Cell, which brings together the resources of multiple government agencies to secure the release of citizens kidnapped or taken hostage.

Bill Richardson, a former senior U.S. diplomat and governor to New Mexico who works extensively on securing American hostages through diplomatic back channels, said he was worried the U.S. government has given Russia too much leeway on the case.

“They’re waiting for evidence from the Russians. And unfortunately what that is showing, is letting the Russians have a little bit of an upper hand and basically have it be guilty until proven innocent,” he said.

Richardson, who has been in contact with Whelan’s family, said the American is the “victim” of the wider geopolitical standoff between Moscow and Washington. He added he is working to secure a meeting with Russia’s ambassador in Washington, Anatoly Antonov, next month to discuss Whelan’s case.

The U.S. government established the Hostage Fusion Cell to deal with those held by hostage groups or criminal gangs or the unacknowledged detention of Americans abroad, said Robert Saale, the cell’s former director.

“In a case like Paul Whelan’s, the Russian government has acknowledged that they’re holding him. So it’s a matter of the U.S. government making a determination of whether or not this is a lawful or unlawful detention,” he said.

“These are extremely tough cases. In a case when an American citizen is acknowledged to be detained, the best case is diplomatic,” Saale added.

Saale also said that bringing in the special presidential envoy for hostage affairs, Robert O’Brien, to deal with a foreign government could risk making the situation worse.

“We take seriously our responsibility to assist U.S. citizens abroad, and will continue to press for fair and humane treatment, due process, and access to appropriate medical care,” the State Department spokesman said.

For questions on the fusion cell, the State Department referred FP to the FBI. When asked for comment, the FBI referred FP back to the State Department.

Some analysts suspect Russia threw Whelan in prison to have a bargaining chip for securing the release of Maria Butina, an alleged Russian spy who aimed to infiltrate Republican politics amid the 2016 presidential elections. Butina pled guilty to engaging in a conspiracy in a U.S. federal court in December, and she could face six months in prison as part of the deal.

“They arrested someone [Whelan], I firmly believe, to extract some kind of benefit from the United States,” said Fayhee, the lawyer for the Whelan family. “To allow them to do that without standing up and screaming out loud is scary for anyone who would travel to Russia as an American citizen.” 

U.S. President Donald Trump has taken a personal interest in securing the release of American citizens taken hostage or detained abroad, touting his record on the issue as a major foreign-policy success. He lashed out at Turkey, threatening Ankara with sanctions, over the detention of the American pastor Andrew Brunson until his release last October. Last March, he traveled to a U.S. air base in the middle of the night to greet three Americans freed from North Korea after securing their release.

Unlike other cases involving detained Americans, Trump has been conspicuously quiet about Paul Whelan, particularly on his favorite medium, Twitter. Trump has not tweeted about Whelan once, compared to nearly a dozen tweets about Brunson, the American detained in Turkey.

U.S. Secretary of State Mike Pompeo met privately in early April with families of Americans detained abroad at the State Department and gave a speech afterward touting the Trump administration’s commitment to securing their release.

“Many of you shared experiences today where you were frustrated that not enough is being done. I can understand how it might seem that way,” Pompeo said in a speech after the meeting. “I implore you don’t give up, don’t despair, we will not.”

David Whelan said he only learned Pompeo was scheduled to make those remarks from other journalists. For him, it was apropos: “The lack of communication from the U.S. government’s diplomats tends to confirm a feeling of inactivity at that level.”

Update, April 16, 2019: This story was updated to include response from the FBI.