By the end of 2024, Paul Whelan will mark six years in Russian Prison. One month before that, is the November Presidential Election. Experts familiar with the negotiations say, there could be a window of opportunity to free Whelan, shortly after the election.
"I think the door will open again to do the negotiations," said Mickey Bergman, Vice President of the Richardson Center for Global Engagement. "I just wish we didn't have to wait, because for us, it’s a few more months. For the prisoners, every day is a day that they might die."
Bergman has worked on negotiations to free Americans held overseas for the last decade, including those in Russia. He worked alongside former Ambassador to the UN and former democratic New Mexico Governor Bill Richardson. Bergman now directs Global Reach for the Richardson Center for Global Engagement. He believes recent arrests of U.S. citizens could be a response to failed efforts to release Paul Whelan.
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"The case of Russia is fascinating. They took Paul Whelan, they wanted to do a certain deal. We refused to negotiate, so they took Trevor Reed. We still refused to negotiate, they took Brittney Griner," Bergman said.
Whelan was arrested in December 2018. He was visiting Russia for a friend’s wedding when he suddenly disappeared. Three days later, Russia’s government announced his arrest on espionage charges.
"We've made clear to the Russians our expectation that we will learn more about the charges, come to understand what it is he's been accused of and if the detention is not appropriate we will demand his immediate return," Secretary of State Mike Pompeo said at the time.
Whelan was a corporate security executive and former Marine. He was given a bad conduct discharge in 2008 after he was convicted on charges that include using fake documents and attempting to steal thousands of dollars while on duty in Iraq. He had been visiting Russia since at least 2007 and had spent more than a decade cultivating friends and contacts in the country. His family insisted Whelan was in Russia for tourism when he was arrested.
"My brother is not a spy," Whelan’s brother David said shortly after his arrest. "Paul's background is in law enforcement. He has military experience, he's in corporate security."
Experts believe his arrest was the Kremlin’s response to the U.S. imprisonment of a Russian citizen. Maria Butina pleaded guilty in 2018 to a U.S. federal charge of conspiracy to act as a foreign agent. Butina had provided information to Russia’s government on key U.S. political figures.
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"My reputation is ruined, both here in the United States and abroad," Butina told a federal judge before she was sentenced to 18 months in prison.
There were some discussions that Butina could be swapped for Whelan but that effort never gained momentum.
"At the current stage, there is no talk about any sort of exchange," Russian Foreign Ministry spokeswoman Maria Zakharova said in January 2019.
Butina was released in 2019, after serving most of her sentence. She now serves in Russia’s parliament, the State Duma. She was sanctioned in 2022 by the U.S. Treasury over Russia’s invasion of Ukraine. By then, Whelan had served two years of his 16-year prison sentence.
"There were four opportunities to bring him home, and that didn't happen," Bergman said.
Negotiators first began working on a prisoner swap including Russian Drug Smuggler Konstantin Yaroshenko. Bergman details the negotiations in his new book, In the Shadows, where the Russians requested dental care for Yaroshenko, in exchange for medical care for Whelan.
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"We started with baby steps," Bergman said about negotiations with Russian Ambassador Anatoly Antonov. "He said, ‘basically, it's not tit for tat, but we believe in reciprocity. If you can arrange Konstantin Yaroshenko for dental care, I'm sure that Paul Whelan will get his medical exam that you're asking for.’"
When the COVID-19 pandemic escalated, Bergman and his team worked with Russian negotiators to advance the reciprocity discussions.
"Antonov, without actually saying it… suggested that if we're able to secure the release of Konstantin Yaroshenko on humanitarian ground, they will reciprocate and Paul Whelan will return home," Bergman said.
Bergman took the offer to the White House, believing the offer was a good one, but the Trump Administration turned down the deal.
"It's complicated. I believe Donald Trump really wanted to bring Paul Whelan home, as he still does. He talks about him and the rest of the Americans that are being held, but he didn't want to give anything in return," Bergman said.
Around two years later Yaroshenko’s name would be on the negotiating table once again, in exchange for a different U.S. prisoner.
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"When we do our work, none of the deals that we bring together are fair or just, and they get criticized a lot," Bergman said.
Trevor Reed was arrested in 2019, after he was accused of assaulting a Russian police officer. Bergman says Russia requested a two-for-two prisoner swap. Whelan and Reed would head back to the U.S. in exchange for Yaroshenko and a Russian arms dealer, known as the Merchant of Death, Viktor Bout. The U.S. was hesitant to make a deal including Bout, who had been convicted by a U.S. federal grand jury in 2011 of conspiracy to kill U.S. citizens.
"We have to take into account that our counterparts in Russia might be playing us as well," Bergman said.
As President Biden prepared to meet with Russian President Vladimir Putin for the 2021 Helsinki summit, Bergman and Richardson suggested the White House bring up a possible prisoner swap.
"I said the families of the detained Americans came up and we discussed it," President Biden said following the meeting. "I am not going to walk away on that issue."
Bergman says no official proposals were ever put forward after the summit. Only half of the deal would be executed nearly a year later. Reed returned to the U.S. and Yaroshenko was sent back to Russia. He now serves as part of Putin’s Prison Oversight Chamber.
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"When we went to negotiate over Trevor Reed and Paul Whelan, it was end of February and the beginning of the war in Ukraine," Bergman said. "We actually didn't know that Brittney Griner was already taken."
Just days before Russia’s invasion of Ukraine, Phoenix Mercury player Brittney Griner was traveling to Russia to play for the country’s premier league during the WNBA off-season. As she was going through customs, officials found cannabis oil in her luggage. She was arrested on smuggling charges for carrying the substance, which is illegal in Russia.
"We are not arguing that Brittney took it here as a medicine. We are still saying that she involuntarily brought it here because she was in a rush," Griner attorney Alexander Boykov said after a court hearing in July 2022.
Negotiators would discuss another two-for-two swap including Griner and Whelan in exchange for Bout and a Russian Money launderer. U.S. officials say the Russians decided against releasing Whelan. Griner would be freed in exchange for Bout.
"This was not a choice of which American to bring home. Sadly, for totally illegitimate reasons, Russia is treating Paul’s case differently than Brittney’s," President Joe Biden said in December 2022 after Griner’s release.
Bout returned to Russia and now serves as a member of a regional legislature. He maintains his U.S. imprisonment, like Griner’s in Russia, was unjust.
"The same outrage was in Russia when I was sentenced to 25 years. Many people would say 'for what?'" Bout told ESPN in September 2023.
Wall Street Journal Reporter Evan Gershkovich was arrested nearly four months after Griner’s release. He was detained while on a reporting trip to the Ural Mountains and is accused of spying.
"The Russians are very, very specific. Evan Gershkovich is a reporter. There's another reporter from Radio Free Europe, also, who has been picked up and is being held in Russia."
Prague-based editor Alsu Kurmasheva was arrested in October of 2023 after she traveled to see her elderly mother. She faces multiple charges including not self-reporting as a foreign agent.
"The Russians don't view them as political prisoners. They view them as something else," Bergman said.
The cases of Gershkovich and Whelan have received the most coverage, but an unknown number of Americans are detained in Russian prisons.
Less-known cases include American school teacher Marc Fogel and musician Travis Leake, who were arrested separately on drug charges. Ksenia Khavana is a dual national and was arrested on treason charges when she returned to Russia to visit her family.
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Last month, U.S. Army soldier Gordon Black was arrested on charges of criminal misconduct, after a woman reported a complaint. A Russian court says he will be detained until at least July 2.
Bergman says Putin likely won’t make a deal to release any of the detainees, until after the U.S. election.
"President Putin doesn't have any interest in making a deal that might make President Biden look good," Bergman said. "You might call me an optimist, but I believe that after November, no matter what the election results are in this country, there will be a period of opportunity to negotiate."
While the U.S. and others can work with negotiators to call for the release of Americans overseas, the government cannot state to an overseas court that a citizen is guilty or innocent. U.S. Government officials also cannot provide legal advice or representation. The State Department currently has Russia at a level 4 travel advisory and urges Americans not to go there, partly due to the singling out of U.S. citizens for detention.
