Lawmaker pushes bill to shed light on "wrongfully detained" designation for Americans held abroad

Washington — As the Biden administration seeks the release of several Americans who are "wrongfully detained" abroad, a Republican congressman wants the State Department to shed light on the opaque process that determines which Americans receive the rare designation.

GOP Rep. Guy Reschenthaler of Pennsylvania is introducing the Marc Fogel Act, which would require the secretary of state to tell Congress why the State Department "has not made a determination or has determined that there is not credible information" showing that Americans held overseas "are being detained unlawfully or wrongfully."

The bill is named after an American teacher who was arrested in Russia in August 2021 for trying to enter the country with medical marijuana. Fogel was sentenced to 14 years in a Russian prison last year. 

His case has drawn comparisons to that of WNBA star Brittney Griner, who was released in a prisoner swap last December after she was convicted on drug charges and sentenced to nine years in prison. Within three months of Griner's arrest, the U.S. declared she was being wrongfully detained, a formal designation that puts the full force of the U.S. government behind securing an American's release.

Two other Americans held in Russia — former Marine Paul Whelan and Wall Street Journal reporter Evan Gershkovich — have also received the designation. Whelan was sentenced to 16 years for espionage charges he vehemently denies, while Gershkovich is waiting to go on trial for similar charges, which he and the Wall Street Journal likewise deny. 

Fogel has not received the designation. 

"Since last year, I have urged the State Department to classify him as wrongfully detained and prioritize securing his release," Reschenthaler said in a statement. "The department has failed to do either and refused to explain its inaction — effectively stonewalling my efforts to bring him home." 

In determining whether an American is being wrongfully detained by a foreign government, the State Department considers 11 criteria outlined in the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act, which became law in 2020.

Someone can be deemed wrongfully detained if the U.S. has credible information indicating they are innocent; the person was detained because they're an American, to influence U.S. policy or to secure concessions from the U.S. government; they have been denied due process; or they were promoting freedom of the press, religion or assembly, among other reasons.

Reschenthaler, who represents a district outside Pittsburgh near Fogel's hometown, said Fogel meets six of the 11 criteria in the Levinson Act. 

The vast majority of Americans who are arrested or detained abroad are not found to be wrongfully detained because the cases "arise out of legitimate law enforcement and judicial processes," according to the State Department. Those Americans receive consular support, but the U.S. government does not actively seek their release. 

Beyond that, the State Department has declined to be more specific about the process. 

The proposed legislation would modify the Levinson Act to require the State Department to provide information to Congress justifying the lack of a designation within 180 days of the department initiating a review of an American's case. 

"The Marc Fogel Act will provide transparency into the State Department's wrongful detainment determination process and help ensure that Americans imprisoned overseas are not forgotten," Reschenthaler said. 

Sarah Barth contributed reporting. 

In:
• Paul Whelan
• Evan Gershkovich
• United States Department of State
• Marc Fogel
• Brittney Griner
• Russia
• United States House of Representatives

Caitlin Yilek

Caitlin Yilek is a politics reporter for CBS News Digital. Reach her at [email protected]. Follow her on Twitter: https://twitter.com/hausofcait

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