Prof. Shane Stansbury: “Reflections on the Brittney Griner Prisoner Swap”

A lot has been written about the exchange of Brittney Griner, the American basketball player jailed in Russia on a minor drug charge, for the notorious Russian arms dealer Viktor Bout, known as the “Merchant of Death.”  However, this essay by Shane Stansbury, my colleague at Duke’s Center on Law, Ethics and National Security, truly stands out.

As his impressive bio below indicates, Shane served for more than eight years as Assistant United States Attorney in the Southern District of New York (SDNY) where Bout was tried, so his perspective is both informed and unique. 

You really, really need to read his reflection.

Reflections on the Brittney Griner Prisoner Swap

by Shane Stansbury

The trial preparation rooms used by prosecutors at the U.S. Courthouse in the Southern District of New York are located upstairs, along a long hallway. Many are windowless, with mismatched furniture and poor lighting. They resemble what some may imagine when they think of government conference rooms that are well past their prime. At least that is what they looked like in the fall of 2011, when Viktor Bout was on trial.

I was a federal prosecutor finishing up a rotation in the Narcotics unit, soon to be joining the Terrorism and International Narcotics unit, where I would spend the bulk of my time in government. A colleague and I were handling a narcotics trial, and down the hall two senior colleagues were wrapping up the Viktor Bout trial. One night, after a long trial day, I stopped by their trial room to see how things were going.

The two prosecutors handling the Bout trial were among the finest in the office, and they had spent the last several years pouring countless hours into the investigation of the Russian man colloquially known as the “Merchant of Death.” When I stopped by, I was not surprised to find them focused, organized, and in good spirits. They were days away from bringing closure to what had been a long, complicated, and important prosecution.

The Bout Investigation

Bout had been on the U.S. government’s radar for years. A veteran of the Soviet military with a gift for languages, he formed an air cargo company at the tail end of the Cold War, as Russia’s government and economy were in disarray. During this time, criminal groups began to flourish and to take advantage of a black market for Soviet-era military supplies.

Bout became one of the most influential arms traffickers of the post-Soviet era, using his extensive professional network to transport military-grade weapons to militants and terrorists throughout the world, including UN-sanctioned regimes in Angola, Afghanistan, the Democratic Republic of Congo, Liberia, Rwanda, Sierra Leone, and Sudan. By 2004, the U.S. Office of Foreign Assets Control (OFAC) within the Department of Treasury had placed him on the Specially Designated Nationals list.

The challenges to bringing a criminal case against Bout were numerous. There were the logistical hurdles that accompany the arrest and extradition of a defendant located overseas, but there were also the difficulties related to developing solid evidence that would convince a jury beyond a reasonable doubt that Bout had committed a U.S. crime. Not an easy feat in the case of a careful man who worked in the shadows of the weapons trafficking world.

The case against Bout was a sting operation orchestrated primarily by the Drug Enforcement Administration (DEA) and involved the work of agents in the DEA’s Special Operations Division (SOD), an elite division that, among other things, focuses on dismantling the leadership structure of major drug-trafficking organizations, including those with connections to arms trafficking and terrorism. I worked closely with SOD agents, including some of those involved in the Bout investigation. They are among the most talented investigators in the federal government, and much of their work occurs overseas, employing the assistance of trusted foreign law enforcement partners and a network of well-placed confidential sources.

Given their portfolio, SOD agents, like many other agents operating outside the U.S., work in a high-risk environment. They routinely place themselves in harm’s way as they seek to cultivate sources, gather evidence, and gain access to the leaders of some of the worlds’ most dangerous and violent criminal organizations—many of which have close ties to corrupt government officials.

I have witnessed the risks taken by these agents and their sources. I have seen them meet with some of the most dangerous men in the world in some of the most hostile locations. (Global weapons traffickers tend to prefer meeting outside U.S.-friendly jurisdictions.) And I have seen them have close calls, placing their lives on the line for the good of the investigation.

It is not easy work, and it requires patience. The overseas cases I worked with SOD agents sometimes took years of painstaking work to reach even the charging stage. (Other stages—such as orchestrating a safe and successful overseas arrest, securing the defendant’s transfer to the U.S., and conducting a jury trial built on foreign evidence—present their own challenges.)

The agents in the Bout investigation achieved their breakthrough by directing several confidential sources to pose as representatives of the Revolutionary Armed Forces of Colombia, also known as the FARC, which at the time had been designated by the U.S. State Department as a Foreign Terrorist Organization (FTO).

For months, the sources negotiated with Bout and his associates, ultimately arriving at a deal that would involve Bout sending the FARC millions of dollars’ worth of weapons—including up to 800 surface-to-air missiles, over 20,000 AK-47 firearms, and millions of rounds of ammunition—some of which the sources stated would be used to attack U.S. helicopters in Colombia.

As part of the rouse, the investigative team convinced Bout to travel to Thailand for a meeting with the sources, where he was arrested by Thai authorities.

The next phase of the case—getting Bout to the United States—was not easy. For over two years, Bout fought his extradition in the Thai courts. The Russian government also aggressively lobbied the Thai government to stop his transfer, calling for Bout to be sent back to Russia. In the end, Thailand approved his extradition, clearing Bout’s transfer to the United States in 2010.

After a three-week jury trial, Bout was convicted of conspiring to kill U.S. nationals; conspiring to kill U.S. officers and employees; conspiring to acquire and use anti-aircraft missiles; and conspiring to provide material support to a designated foreign terrorist organization. The court sentenced him to 25 years in prison.

Although Bout’s sentence was less than what my former colleagues had requested (they had sought a life sentence), bringing Bout to justice was a remarkable accomplishment for the men and women who had worked so hard for so many years. It was also a reminder to agents and prosecutors of what they could achieve.

Moscow was furious, and vowed to bring Bout home. In what became a badge of pride in our office, many of those involved in the case were later blacklisted by the Kremlin from future travel to Russia.

The Bout-Griner Exchange

It was with this history that I learned about the recent agreement to release Bout in exchange for Brittney Griner, the W.N.B.A. star and two-time Olympic gold medalist. Griner had been detained in Russia since February after officials searched her luggage at an airport and found vape cartridges with hashish oil, a cannabis derivative.

Griner pleaded guilty to drug charges in August, although she insisted that she had made a simple mistake. She was given a nine-year sentence and sent to a penal colony—an unusually harsh punishment that many interpreted as an attempt to provide Russia greater leverage in a potential prisoner exchange.

For months, Griner’s friends, family, and supporters called on the Biden administration to seek her release. Given Griner’s near-celebrity status, her cause sparked intense public interest and media attention.

As most readers know, the Biden administration worked for months to reach an agreement with Russia to secure the release of both Griner and another American, Paul Whelan. Whelan, a corporate executive and former U.S. Marine, was convicted in 2020 on espionage charges that the U.S. government insists were baseless. Whelan ultimately was left out of the deal, although President Biden has stated that he will continue to seek Whelan’s release.

As a result, the footage from last Thursday’s swap at Abu Dhabi International Airport depicted a young athlete who had been convicted for carrying hashish oil crossing a tarmac in exchange for the so-called Merchant of Death.

Law Enforcement, Politics, and Diplomacy

Whatever the merits of the exchange, we should celebrate the fact that an American citizen unfairly detained by the Russian government is safely back home. I cannot imagine being in the shoes of Griner or her family, and I know that if it had been one of my loved ones arrested and detained on foreign soil, I too would have been doing everything possible to seek their release.

I am also wary of being too quick to second-guess the tough call made by the Biden administration. Diplomacy is messy, and we may not even know all the facts that led to the exchange. We do know, however, that Russia reportedly would consider only a one-for-one exchange involving Griner and Bout.

Reasonable people can disagree about the decision to move forward without Whelan. Whelan’s own brother, displaying grace and character, acknowledged the constraints facing the U.S. and said that he thought the administration made the right call in bringing home one American rather than bringing home none.

And yet, the bitter taste that filled my mouth as I watched Viktor Bout cross the tarmac in Abu Dhabi is hard to remove.

One problem, of course, is the glaring mismatch between Griner, a basketball player convicted of a minor drug crime, and Bout, one of the world’s most notorious arms traffickers and who many believe has strong ties to Russian intelligence.

As a former prosecutor trained to seek proportionality and fairness, this imbalance is impossible to ignore. To be sure, it can be difficult to know what the “right” outcome looks like in the exchange of human beings, but even if trading Bout for Griner can be justified, it is hard to see it as fair.

There is also the harsh reality that a conviction and sentence—achieved only through years of hard work—can be bargained away in an instant.

Those in law enforcement are accustomed to working in a world that is largely divorced from politics and dealmaking. In most cases, they can feel reasonably confident that if they put in the work and do the job right, a just result guided by evidence and precedent will follow. A development like the Griner-Bout deal upends those expectations.

There are, of course, exceptions. The Department of Justice, for all its independence, is part of the Executive branch, and in politically sensitive cases that affect our foreign policy, prosecution and diplomacy can become intertwined.

I saw this firsthand when my former office played a role in a prisoner swap involving 10 Russian agents. Only days after their arrest, and around the time the Obama administration was trying to rebuild relations with Russia, the defendants became part of an exchange for American prisoners that had been orchestrated at the highest levels of government.

Agents and prosecutors are aware of the broader political reality in which they operate. But knowing that outside considerations can sometimes come into play does not mean that they are easy to accept—particularly if they result in outcomes that are inconsistent with law enforcement objectives. I have no doubt that the professionals who have worked so hard to bring individuals like Viktor Bout to justice will continue to serve with the same dedication that has always defined their work. They would be excused, however, for feeling disappointed and frustrated after hearing Thursday’s news.

Finally, there are the downstream risks presented by the exchange.

I will leave it to others to debate the broader strategic consequences of the U.S. dropping its insistence that Whelan be released, or of its agreement to a deal that President Vladimir Putin has been able to tout as a victory amid his struggles in Ukraine. Time will tell whether there is fallout for our foreign policy. At a minimum, however, the exchange does set a precedent—not only for the Kremlin but also for other regimes that increasingly are willing to use U.S. citizens as bargaining chips.

There is also the very real possibility that Bout will return to his old ways. Some officials who have followed Bout for years have expressed such concern, noting that he has the capacity to lend support to Russian mercenaries in Ukraine or Africa.  

What may be less obvious is that cases like this have the potential to impact the work of law enforcement more generally. As I noted earlier, overseas criminal cases of any significance are difficult and time-consuming to bring. One reason they are so challenging is that the work requires critical buy-in from foreign partners on matters ranging from the sharing of evidence to arrests and extradition.

A foreign government’s willingness to cooperate with U.S. law enforcement can be influenced by factors ranging from historical alliances and personal relationships to formal binding agreements. But one of the most valuable currencies that the U.S. has in convincing foreign partners to take the steps necessary to further an investigation or approve an extradition is the perception that U.S. law enforcement efforts are driven by the facts and the law, not political considerations.

Consider Bout’s extradition from Thailand. Some law enforcement agents have expressed concern about the Bout-Griner deal, in part because of the message it sends to partners like Thailand, which withstood years of intense political pressure by Russia as it sought to block Bout’s transfer to the United States, only to see the U.S. itself eventually agree to his release.

I doubt that the release of Bout in exchange for Griner will, by itself, have a material impact on criminal investigations going forward. It made headlines for a reason: these kinds of swaps are rare, and the facts and individuals involved in this case were in some ways exceptional. At the same time, governments around the world are taking note, and we cannot know for sure whether or how last week’s news will affect their calculations when we ask them to assist with tomorrow’s Viktor Bout.

*  *. *

When I reflect on that night in the courthouse in 2011 and picture the trial room where my colleagues were preparing for the Bout prosecution, the room seems almost like a refuge—a place where prosecutors and agents could focus on facts and evidence, without the messiness of politics and diplomacy.

Of course, there is a world beyond that room, with other equities at stake. It was perhaps inevitable, given Bout’s status and the Russian government’s steadfast opposition to his prosecution, that those other considerations would eventually come into play. It was also highly likely that any prisoner swap involving Bout would leave some unsatisfied.   

I am sure that Brittney Griner did not set out to be part of a one-for-one exchange involving Viktor Bout. The deal was beyond her control and was not hers to make. Yet, she has found herself in the middle of that imperfect bargain—one where the objectives of politics, diplomacy, and law enforcement do not neatly align.

I wish Griner well as she returns to life in the United States. I know that in the coming weeks she will have plenty of supporters to call and friends and family to see. As she does so, I hope she will consider reaching out to a few of the men and women who spent years working on the Viktor Bout case. I’m sure they would appreciate the call.   

About the author:

Shane T. Stansbury is the Robinson Everett Distinguished Fellow in the Center for Law, Ethics, and National Security and a Senior Lecturing Fellow in Law.  Shane served for more than eight years as Assistant United States Attorney in the Southern District of New York (SDNY), where he led some of the office’s most sensitive and noteworthy prosecutions in the areas of terrorism, cybercrime, espionage, money laundering, international public corruption, and global weapons trafficking.

Prior to becoming a federal prosecutor, Shane was a litigator at WilmerHale where he focused on international litigation and arbitration, foreign anti-corruption investigations, and white-collar criminal matters.  Shane clerked for the Honorable M. Margaret McKeown of the Ninth Circuit Court of Appeals and the Honorable Robert W. Sweet of the United States District Court for the Southern District of New York.  He received his J.D. from Columbia Law School, where he was Articles Editor for the Columbia Law Review; his M.P.A. from Princeton’s Woodrow Wilson School of Public and International Affairs; and his A.B. from Duke.

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