Wrongful or Rightful, Don't Roll the Dice if You Can't Pay the Price

If you've been following the case of Marc Fogel, the U.S. citizen teacher at Moscow's Anglo-American School who has been sentenced to 14 years after he was caught bringing a small quantity of cannabis into Russia, then you've probably seen the story in the WaPo today which quoted his wife and family. That story had the first fairly solid details about his connection with U.S. Embassy Moscow that I've seen so far. 

Here are a few key quotes:

In suburban Pittsburgh, Jane Fogel has been watching the Griner case spool out and wondered whether her husband has been forgotten. Griner’s wife, Cherelle, received a call from the president. The Fogels have been stalled at the mid-functionary level of the U.S. State Department.

Don’t underestimate mid-level functionaries, I say. That’s where the real work of government gets done. 

He’d packed 14 vape cartridges of medical marijuana into his suitcase, stuffing some in his shoes, and placed some cannabis buds in a contact lens case, his wife said. Jane said she had no idea he’d done it. But why take such a risk? “It’s pretty simple,” his son Ethan said of his father’s plan to bring medical marijuana into Russia. “He thought he could get away with it.”

Oh? Very simply, I thought I could get away with it, your Honor is not something you should ever say in court. Nor will it get you much sympathy from the American public, I don't imagine. I’m beginning to understand the reason for that long sentence. 

Now, here's the part I found most interesting, because it cleared up some of the confusion in earlier news stories about Fogel's purported diplomatic immunity.

In previous years, they’d received visas sponsored by the U.S. Embassy that labeled them “technical employees,” a term of art that allowed them to work in Russia at the invitation of the embassy and afforded them certain diplomatic protections, even though they were not employed by the U.S. government. The embassy was involved because the school had been chartered by the American, British and Canadian embassies but overseen by a separate school board. The change in the Fogels’ visa status took place in 2021 when the school transitioned to being a nonprofit institution.

“Technical employees” who enjoy “certain diplomatic protections” sounds an awful lot like Administrative and Technical staff status. I've worked with a number of international schools that enroll USG dependents, but never before have I come across one that had an official connection to an embassy. From what I've learned about the history of AAS Moscow, I expect that some sort of quasi official status may have been necessary in order to get U.S. citizen teachers to work in Moscow during the years of Cold War and post-Cold War harassment. 

Getting back to today's WaPo story, the family is making a public pitch to persuade State and the White House to define Fogle as being wrongfully detained, and therefore to include him in the possible prisoner swap that might be in the works for two others prisoners who are so defined. 

The criteria for wrongful detention status are in the Robert Levinson Act, and, frankly, I don't see how they apply to Fogel's situation. There are some large differences between the circumstances of his arrest and that of Brittney Griner. 

Fogel was not a visitor to Russia, having lived and worked there for ten years, if news reports are correct. He can't credibly claim to be naïve about the place. 

Until recently he'd had some kind of connection to the U.S. embassy and reportedly even some level of diplomatic immunity as a result, and that seems to have caused extra Russian interest in him. According to a TASS report, "Mark Fogel was a teacher of an Anglo-American school, and previously served as a US embassy employee in Moscow. Prior to May 2021, he and his spouse enjoyed diplomatic immunity. According to one investigation version, he could have used it to establish a drug smuggling channel for distribution among the students of the school." 

Fogel had concealed his weed and cannabis oil in his luggage, packing them in a contact lens case wrapped in plastic and stuffed inside a sneaker. Unlike Griner, he couldn't use the ooops!-I-forgot-I-left-those-there defense. 

Fogel stated he has a medical need for marijuana, but his credibility suffers due to the very small amount he had in his luggage - ironically - given his claim to need the drug for pain management. He had less than half an ounce, and no way to resupply himself in Russia, where they do not do medical marijuana. Half an ounce seems more recreational than medicinal. 

Those suspicious Russians might have thought Fogel had another stash at home which his wife disposed of after he was arrested. According to a TASS report, "It was determined that his spouse, who was released, managed to get rid of the evidence that was present in the apartment ... Surveillance camera footage shows the woman carrying a bundle outside and throwing it into a dumpster. Later, the woman retrieved it, put it into a plastic bag, and carried it outside of the residence complex.” 

For whatever reason, the Russians were so interested in Fogel's case that they took eleven months between his arrest and conviction. Very unlike Gainer, who was arrested February 17 and put on trial in early July. 

Fogel's situation was raised at the State press briefing of July 26, and the Spokesman's phrasing about "the totality of the circumstances" does not give me the sense that State is very eager to define Fogel as being wrongfully detained.

QUESTION: And then the term “wrongfully detained” has not been applied to the case of Mark Fogel, so can you just explain why that’s the case, given there are some similarities to the crime he committed and the crime that Brittney Griner committed?

MR PRICE: Well, each case is unique. And in determining whether detention is wrongful, determining if the detention is wrongful, we look at the totality of the circumstances. And those circumstances are then weighed against a series of criteria and factors. The Bob Levinson legislation that was passed some years ago, and in fact was just codified in key ways into the EO, defined some of those considerations that we look at.

Yeah, I think Mr. Price might just as well have channeled Sammy Davis Jr. on that response.