Fogel family lawyer: 'wrongfully detained' status could have led to freedom

Marc Fogel’s loved ones started hearing rumblings on Tuesday through Russian media sources that a prisoner exchange was underway with the United States.

All day Wednesday, they made a push with their congressional delegation to see if the 62-year-old Oakmont teacher, who had been held in Russia for nearly three years, would be included.

“We got no answers,” Sasha Phillips, an attorney working with the family, said on Friday. “Nothing from the State Department. Nothing from the White House.

“It was complete silence.”

One national media outlet reported Fogel would be included.

The news sent the family’s hopes soaring.

But then they heard otherwise.

“We’re going from excitement and hope to complete despair,” Phillips said of the emotional roller coaster.

On Thursday morning, they got a call from Russian sources that two planes carrying the prisoners had left Russia.

They still didn’t know if Fogel was on board.

Then, mid-morning, Fogel’s sister in O’Hara, Lisa Hyland, got a call from a Russian number.

It was Fogel. He was still in Rybinsk.

In prison.

“‘If I’m left behind, my soul is dead,’” Fogel told his sister, according to Phillips.

“He doubts whether he’ll make it to the next opportunity,” Phillips said Hyland told her.

Fogel was not included in the complex swap that freed Wall Street Journal reporter Evan Gershkovich, ex-Marine Paul Whelan and Radio Free Europe journalist and Russian American Alsu Kurmasheva.

Gershkovich and Whelan — along with basketball star Brittney Griner, who was freed from a Russian prison in 2022 after 10 months in custody — had something going for them that Fogel doesn’t: they were all declared wrongfully detained by the U.S. government.

Fogel’s supporters on Friday were highly critical of the Biden administration.

“To do this to the family is very cruel and is very wrong,” Phillips said. “The government should have done a better job keeping the family informed — no matter the outcome.”

Saying his name

For three years, no one in the Biden administration said Marc Fogel’s name publicly.

But in the last 48 hours — amid the historic prisoner exchange involving 24 people and six countries — they’ve addressed at least three separate times Fogel’s plight as an American being held in a Russian prison.

“We absolutely wanted Marc to be included, but it just wasn’t going to happen,” a senior administration official said in a press call on Thursday morning. “So what that tells us is we got to keep redoubling our efforts, and we are.”

Then, in a press briefing on the prisoner swap on Thursday, National Security Advisor Jake Sullivan said: “And we’re going to build on it, drawing inspiration and continued courage from it for all of those who are held hostage or wrongfully detained around the world, and that includes Marc Fogel — who we are actively working to get his release from Russia as well.”

And again on Friday, as President Joe Biden left the White House, he told reporters his administration is working on Fogel’s release.

“We’re not giving up on that,” Biden said.

For Fogel’s supporters, they are the right words, but they need to be accompanied by action.

“Words are wonderful, and they instill hope, but they don’t do enough,” Phillips said.

Six criteria met

Fogel, a 62-year-old teacher who was about to start his 10th year at the Anglo-American School in Moscow, was arrested Aug. 14, 2021, after Russian authorities found him with 17 grams of medical marijuana.

After a trial, Fogel was convicted and sentenced to serve 14 years in a Russian maximum security prison.

Following Fogel’s arrest, his supporters say, one of the first things that should have happened was the U.S. State Department should have declared him to be wrongfully detained. The decision ultimately rests with the secretary of state.

Under the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act of 2020, there are 11 criteria to establish the designation.

Among them:

• The American government has credible information indicating innocence of the individual
• The person is being detained substantially because of American citizenship
• The detention is being used to influence U.S. policy
• The detention occurred because the person sought to promote freedom of the press or religion
• The detention is a pretext for an illegitimate purpose
• The person is being detained in inhumane conditions and the detention is arbitrary

Fogel meets six of the 11 criteria, his advocates say.

Still, they have never been told by anyone why the designation has not been applied to him. Instead, the State Department has lobbied for Fogel’s release on humanitarian grounds.

The designation, Phillips said, is essential in providing governmental resources to the families of American prisoners overseas. Without that status, Fogel’s family gets no such aid.

Among the most significant benefits for families, Phillips said, is having the full weight and support of the U.S. government, as well as being privy to information about a prisoner’s status.

“The families of wrongfully detained individuals are provided with regular updates and briefings on the status of the detained individual and the efforts being made for their release,” Phillips said.

They are also assigned a liaison through the Special Presidential Envoy for Hostage Affairs.

Without Fogel being listed as wrongfully detained, Phillips said, his family had no idea this week whether he was included in the prisoner swap.

If Fogel held the status of wrongfully detained, there would be additional access to medical care and mental health services for both Fogel and his family, as well as financial support.

Over the last three years, the family has spent hundreds of thousands of dollars to work for his return, including paying legal fees for his trial in Russia, travel expenses to lobby members of Congress and related work, Phillips said.

“A lot of that would have been avoided if Marc had been designated as wrongfully detained,” Phillips said.

She believes that if Fogel held the designation, he would have been set free Thursday with the other prisoners.

‘Unimaginable suffering’

David Levinson’s father, Robert Levinson, was a CIA contractor and former FBI agent who was kidnapped in Iran in 2007. He died in Iranian custody in 2020 and is regarded as the longest-held U.S. hostage.

Levinson said Friday that families need transparency.

Before the act named for his father took effect, David Levinson said there was no centralized, collaborative approach toward getting hostages home.

“From a family-to-family perspective, it’s an unimaginable suffering, and they should be doing everything possible to bring Marc home,” Levinson said. “My heart goes out to them. Nobody should suffer in darkness.”

Hearing the words from the administration about Fogel in the last two days, though, Levinson said, could provide some optimism.

“I would personally be encouraged hearing the president speak about my dad’s case. It gives hope and relief, knowing he was on their minds. I knew they were working on his case.”

For Fogel’s supporters, they say they need more than that.

“This is definitely a step in the right direction, but it’s a very small step and the one that’s three years overdue,” Phillips said. “Marc needs to come home.”