The Problem with "Wrongfully Detained"
Press Releases | July 02, 2024
(Washington, DC) – Judicial Watch announced today it filed a Freedom of Information Act (FOIA) lawsuit against the U.S. State Department for all records related to why the department has not issued a “wrongful” detention designation for Jimmy Wilgus, a U.S. citizen sentenced to 12.5 years in a Russian penal colony on allegedly false charges based on a forced confession and fabricated evidence(Judicial Watch, Inc. v. U.S. Department of State (No. 1:24-cv-01879).
Secretary Blinken's Statement regarding "Wrongfully Detained Americans"
"From day one of this Administration, the President and I have made clear that we have no higher priority than the safety and security of U.S. citizens at home and abroad. Under President Biden’s leadership, we have now secured the release of more than 30 wrongfully detained Americans around the world. I am grateful to everyone from the State Department and across the government who worked tirelessly to bring home our U.S. citizens. We will not rest until we have brought home every wrongfully detained American." - USDOS on Sept. 19, 2023, regarding the release of 5 Americans in Iran, Sec. Blinken
NJ Senator Bob Menendez and Former Deputy Secretary of State and Ambassador of the US to the Russian Federation (2020-2022)
May 18, 2023
"...it's a Potemkin court, it is used by the Russian security services and the Kremlin to achieve their policy. There is no justice, there’s no independent judiciary.” - Former Deputy Secretary of State and Ambassador of the United States to the Russian Federation (2020-2022)
The process to name an American prisoner “wrongfully detained” is codified in the Robert Levinson Hostage Recovery and Hostage–Taking Accountability Act. The U.S. government will not advocate for the release of an American prisoner without the designation. The decision to name someone wrongfully detained rests with the U.S. secretary of state who has latitude to interpret the criteria set forth by law. It’s a subjective decision.
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The U.S. State Department describes the process as follows:
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“This discretionary determination is an assessment of the totality of the circumstances and is not a legal determination. Though every assessment will be different based on specific factors, the Department will consider the criteria outlined in the Robert Levinson Hostage Recovery and Hostage–Taking Accountability Act when making an assessment.” [Source: U.S Department of State]
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The criteria in the law include entries, such as: the prisoner is held in inhumane conditions; independent nongovernmental organizations or journalists have raised legitimate questions about the innocence of the detained individual; due process of law has been sufficiently impaired so as to render the detention arbitrary; and others. Jimmy Wilgus should qualify for the three listed, if not more. Yet nothing has been done to designate him wrongfully detained.
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Consider the criteria “due process of law has been sufficiently impaired so as to render the detention arbitrary.” Americans sentenced in Russia have been subject to a justice system that boasts a 99 percent conviction rate. Once arrested, a trial in Russia is a pro forma process that practically guarantees a guilty verdict. Impaired due process of law, indeed.
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Moreover, independent nongovernmental organizations and journalists have raised questions about Jimmy’s innocence. So what does it take? Why won’t the secretary of state act?
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Without wrongfully detained status, there is little the U.S. government will do for Jimmy Wilgus. He needs this designation and, according to the law, he meets the standard. We urge our fellow Americans to make the case for him and advocate on his behalf. Please write to Secretary Blinken to insist he classify Jimmy as wrongfully detained. It is time for Ambassador Carstens, Special Presidential Envoy for Hostage Affairs, to negotiate Jimmy's release in the next prisoner exchange.
Last month, Evan Gershkovich and two other Americans wrongfully detained in Russia were brought home, but there are still others left behind. A complaint filed in May by one of these forgotten Americans, Jimmy Wilgus, alleged that State Department officials are ignoring laws that require them to make a prompt determination, whenever an American is detained by a foreign government, as to whether that person is wrongfully detained. Jimmy’s complaint asked only that the Court order the State Department to follow these laws.
In responding to the complaint, the Government did not deny Jimmy’s allegations. It admitted that the State Department has not in fact evaluated whether Jimmy is wrongfully detained, and—rather than make an excuse for its not having done so—the Government argued that the law does not require the State Department to give this attention to every American. But, as Jimmy’s lawyers noted in their response, the Executive Branch is required to follow duly enacted laws passed by Congress, and those laws have been perfectly clear on this issue: every American detained abroad must have his or her case reviewed for evidence of wrongful detention.
At the heart of this lawsuit is the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act (“Levinson Act”), which Congress passed after American Bob Levinson died in Iranian custody in 2020*.
This law requires the State Department to review the case of every American detained abroad “as expeditiously as possible” to make a determination as to whether “there is credible information that they are being detained unlawfully or wrongfully,” and then, if they are wrongfully detained, to work to bring them home and provide detailed reports to Congress about their efforts. A similar law known as the Hostage Act has been in place since
1868, but the State Department has ignored these laws in Jimmy’s case for almost eight years. The Court’s decision in this case will be the first to interpret the meaning and import of the Levinson Act, and one of the first to address the Hostage Act as well, at a time when wrongful detention of Americans has become an increasingly prevalent tool of foreign governments.
Jimmy Wilgus is an American musician who has been wrongfully detained in Russia since November 2016. He was sentenced, after a ridiculous show-trial, to twelve-and-a-half years of hard labor and has survived eight years in torturous conditions at the same penal colony where Paul Whelan and Trevor Reed were imprisoned, nearby the women’s penal colony where Brittney Griner was imprisoned for nine months. But he is in extremely poor health, and his family worries that Jimmy, like Bob Levinson, will not make it out of Russia alive without
urgent action by the State Department.
The facts of Jimmy’s case are detailed in his complaint. The lawsuit is James Vincent Wilgus v. United States Department of State, et al., Case No. 24-cv-1384 in the U.S. District Court for the District of Columbia. Jimmy’s lawyers, Lawrence S. Lustberg and Ruth O’Herron of Gibbons, P.C. in Newark, New Jersey, are confident that the Government’s motion to dismiss will be denied and Jimmy will have his day in court, but they are disappointed that the Government has not resolved this case which only asks for the State Department to review the circumstances of Jimmy’s detention and make a determination as to whether he is wrongfully detained.
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* See Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act, Press Statement, Senate Foreign Relations Committee, Senate Approves Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act (Jun. 16, 2020), https://www.foreign.senate.gov/press/dem/release/senate-approves-robert-levinson-hostage-recovery-and-hostage-taking-accountability-act (quoting Senators who sponsored the Levinson Act and describing its purpose). The full text of the Levinson Act, as enacted on December 27, 2020, can be found at https://uscode.house.gov/view.xhtml?hl=false&edition=prelim&req=granuleid%3AUSC-prelim-title22-section1741.
JOHN J. GIBBONS FELLOWSHIP IN
PUBLIC INTEREST & CONSTITUTIONAL LAW
LAWRENCE S. LUSTBERG, DIRECTOR
RUTH O’HERRON
Gibbons P.C.
One Gateway Center Newark, NJ 07102-5310
gibbonslaw.com
September 12, 2024
FOR IMMEDIATE RELEASE
Lawsuit Alleges U.S. State Department Has Neglected American Wrongfully Detained in
Russia for Eight Years, Violating Laws That Require Action