December 15, 2022

A Fumbled Opportunity and a Blunder

To prevent a reprise of the Bout-Griner debacle, Congress should amend the Hostage Taking Act.

Brittney Griner fumbled an electrifying opportunity to advance the standing of the LGBTQ community and the Women’s National Basketball Association. Taking inspiration from Sydney Carton substituting himself for Charles Darnay to die at the guillotine in “A Tale of Two Cities,” Griner could have insisted that former Marine Paul Whelan jump to the front of the wrongly imprisoned queue and be released before herself. She could have explained that the former Marine had risked that last full measure of devotion to defend herself and all Americans from foreign aggression and has been consigned to a Russian dungeon on concocted charges of espionage since June 2020. Whelan was the more deserving of release by any moral yardstick.

If Griner had displayed such gallantry, she would have become an instant LGBTQ icon and global celebrity. It was an opportunity for a turning point in history that didn’t turn. It proves likes of Nelson Mandela or Martin Luther King Jr. are as rare as unicorns.

Griner’s fumble was eclipsed by President Joe Biden’s stupendous blunder. To secure Griner’s solo release, he agreed to commute the 25-year sentence of and surrender to Russia Viktor Bout, aka the “Merchant of Death,” convicted of conspiring to murder United States nationals and arming the narco-terrorist organization FARC, i.e., the Revolutionary Armed Forces of Colombia. Bout is to arms trafficking what Al Capone was to robbery, “protection” rackets and murder.

In contrast, Griner’s offense was both innocuous and trivial: possessing two vaping cartridges containing hashish oil for medicinal purposes. By any metric, Biden’s trade of Bout for Griner was lopsided, like trading Nazi Hermann Goering for a bootlegger. Is it any surprise that Russia has exhibited jubilation over the swap?

Biden accepted the unequal trade to bolster his political standing with LGBTQ, black and women voters. At a minimum, it created an appearance that Biden had blinked in the face of Russian President Vladmir Putin’s intransigence over the release of Whelan. But as Plato’s “Allegory of the Cave” teaches, appearances are reality. The world now sees Biden as a paper tiger. He has a credibility gap bigger than predecessor President Lyndon B. Johnson’s during the Vietnam War.

The United States is beset with multiple enemies. There is Russia over Ukraine and the assassination of dissidents abroad. There is China over Taiwan, navigation in the South China Sea and the genocide of Uyghurs. There is Iran over its nuclear ambitions and adventurism in the Middle East and hostility toward Israel. There is ISIS, Al Qaeda and international terrorism generally. All will be emboldened by Biden’s display of weakness in the face of Putin’s implacability.

Biden cannot be faulted for endeavoring to secure Griner’s release. The Hostages Act of 1868, as amended, demanded no less. It saddles the president with a “duty” to seek the release of any citizen “unjustly deprived of his liberty or under the authority of any foreign government” by any means short of war. But Biden’s capitulation to Putin in the Bout-Griner swap heightens the risk that other Americans traveling abroad will be arbitrarily detained by unfriendly foreign governments in hopes of negotiating a sweetheart deal for one of their own imprisoned in the United States (but after enjoying multiple due process safeguards against injustice). Will caveat viator — let the traveler beware — soon be stamped in our passports?

To prevent a reprise of the Bout-Griner debacle, Congress should amend the Hostage Taking Act. The amendment should prohibit the president from trading any United States inmate for a United States citizen unjustly imprisoned by a foreign government without a 60-day notice to Congress and the American people; and testimony by the secretary of state before the Senate Foreign Relations Committee and the House Foreign Affairs explaining and defending the exchange. Sunshine is said to be the best of disinfectants and transparency the coin of the realm.

To enforce the amendment, Congress should employ the power of the purse to prohibit the expenditure of any funds of the United States to effectuate a prisoner swap with a foreign government without the required notice and testimony. To flout that spending limitation would be a criminal violation of the Antideficiency Act.

What can Biden do to ameliorate his blunder? Ask Ukraine President Volodymyr Zelensky to negotiate an exchange of a Russian in Ukraine, arrested or convicted of a war crime, for the release of Whelan. It is the least Zelensky can do after the staggering dollars, weapons, intelligence and training the United States has provided Ukraine to defeat Russia’s aggression. It should be made a tacit condition of Ukraine’s admission to NATO.


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