Free Evan, Prosecute the Hostage Takers
This commentary was originally published in Columbia Journalism Review on April 10, 2023.
The charges of espionage against Wall Street Journal reporter Evan Gershkovich are false and fabricated. But there is evidence of a crime in his case. In fact, according to several experts, there’s an argument for the Justice Department to open an investigation to determine if those involved in Gershkovich’s arrest violated U.S. law against hostage taking.
A 1984 statute defines hostage taking as “the seizing or detention of an individual coupled with a threat to kill, injure or continue to detain such an individual in order to compel a third person or governmental organization to take some action.” The United States has jurisdiction outside the United States when a hostage is a U.S. national or if there is an effort to coerce the United States government.
While Russia has not yet made explicit demands for Gershkovich’s release, recent hostage taking incidents in Russia have been resolved via trades or prisoner swaps. The unusual speed and severity of the Russian government’s reaction to Gershkovich’s arrests on charges of espionage—Kremlin spokesman Dmitry Peskov quickly claimed he was “caught red-handed”—suggests that it may have been a pre-planned operation. The fact that it occurred soon after the U.S. Justice Department lodged charges against Sergey Cherkasov, an alleged Russian intelligence agent, raises further suspicions. Cherkasov posed as a Brazilian student in the United States, and later got a job with the International Criminal Court in the Hague. He was deported to Brazil, where he is serving a 15-year prison sentence.
Rob Saale, who served as an FBI Special Agent and later the director of the Hostage Recovery Fusion Cell (and now does private security consulting), says a potential prosecution of Russian state actors for taking an American hostage could be “another tool in the toolbox” of hostage recovery and deterrence. But Saale notes that there could be significant challenges to a successful prosecution including the fact that evidence of a conspiracy, should it exist, is likely to have been gathered by U.S. intelligence and would thus be classified. This could be overcome via declassification, but a potential prosecution of Russian officials would raise a host of difficult policy questions. Would it open the door for reciprocal efforts by Russian prosecutors to go after U.S. officials? Would it create a credible threat that might deter future kidnappings?
Saale told me “prosecuting state actors is a strategy I don’t believe has been tried before.” But a former federal prosecutor I spoke with put it a different way. “We already do these types of cases,” he noted. “We just don’t prosecute powerful and wealthy state actors.” The U.S. government increasingly prosecutes state actors who engage in other crimes such as drug trafficking, sanctions violations, and money laundering. A case pending currently before the Supreme Court involving a Turkish state-owned bank accused of money laundering and evading sanctions involves the limits of sovereign immunity, which the Turkish bank argues protects it from criminal liability.
Dani Gilbert, a leading expert on hostage policy and a national security fellow at Dartmouth, told me that diplomatic hostage taking is generally resolved through trades, which are effectively a concession to the hostage takers. While the United States has successfully negotiated for the release of two Americans jailed on criminal charges, Trevor Reed and Brittney Griner, another American, Paul Whelan, remains in jail in Russia, serving a 16-year sentence for “espionage.”
When it comes to state hostage taking, providing effective deterrence is “the million dollar question,” Gilbert said. A 2020 law called the Levinson Act allows the Secretary of State to designate Americans as “unlawfully detained” and fast track their recovery. The State Department made an official designation on Monday for Gerhskovich. The Levinson Act also allows the U.S. government to impose visa restrictions or block property of those deemed to be involved in hostage taking. Last year, President Biden issued an executive order affirming these new authorities.
The U.S. response to hostage taking and kidnapping around the world is guided by a hodgepodge of different policies and approaches. Under U.S. law, families are permitted to pay ransom to secure the release of Americans kidnapped by criminal organizations, such as Mexican drug cartels. But they are not allowed to do so in the case of terrorist organizations, such as Al Qaeda, because of the U.S. no concessions policy. However as Gilbert notes, the United States routinely makes concessions to free hostages held by states.
The inconsistency of approaches has generated fierce debate. But Brian Jenkins, a senior adviser at the RAND Corporation and one of the country’s leading experts on counterterrorism, says that the argument over the no-concessions policy misses the point.
“The most powerful determinant of whether or not there would be further kidnappings is not the policy of the government, but the fate of the kidnappers or their organization,” Jenkins told me when I was researching my 2019 book on hostage policy, We Want to Negotiate. “If kidnappers are apprehended and appropriately punished .. then kidnappings will decline. If this is not done, it doesn’t make any difference what the policy is.”
This is why in the Gershkovich cases, as in all cases of American hostages, the United States should focus first on bringing the hostage home. But it should also focus on creating effective deterrence. While there are many obstacles to a successful prosecution of a state actor for hostage taking—and many complex considerations – criminal prosecution is an option that the United States should keep on the table.
In fact, merely reframing Gershkovich’s detention as a possible crime is an effective way to communicate just how outrageous Russia’s actions are. Doing so can help make the case to the global public that his arrest is not merely the result of some sort of diplomatic dispute.
Washington Post opinion writer Jason Rezaian, who knows a thing or two about diplomatic hostage taking, wrote in a recent column that journalists covering the Gershkovich case should not refer to him as an alleged spy, noting that “he is a hostage until proven otherwise.”
I agree, but would go further.
If Gershkovich is a hostage, then someone committed a crime under U.S. law. Any Russian officials involved in that act should face consequences for their actions.
Joel Simon is the founding director of the Journalism Protection Initiative at the Craig Newmark Graduate School of Journalism. He is a commissioner for the CSIS Commission on Hostage Taking and Wrongful Detention.