American citizen Paul Whelan, suspected of espionage on behalf of the United States, attends a hearing at the Moscow City Court. (Photo: Vladimir Gerdo/TASS via Getty Images)

Paul and David Whelan, twins born in Canada who grew up in the United States, spent their 49th birthdays earlier this month very differently.

David Whelan, a lawyer who specializes in information and technology, was diving into books about Russian negotiation tactics and using Google Translate to glean clues about how his brother got wrapped up in what he views as a fabricated spying scandal. Meanwhile, Paul Whelan turned a year older in Lefortovo Prison in Moscow.

As Paul Whelan enters his third month of detention in Russia, his case stands as a counterpoint to President Donald Trump’s public boasting about his ability to get U.S. citizens detained abroad released. Trump, who in December announced his administration had freed 17 Americans, has hosted public events with returned Americans at the White House, most recently with Danny Burch, who recently returned from Yemen.

But now, scrutiny is building over Trump’s handling of overseas hostages, particularly after he said that North Korea’s leader didn’t know about the treatment of Otto Warmbier, an American who was returned to the United States in a coma and died soon after. And Paul Whelan is becoming another sore spot on Trump’s record of returning Americans.

David Whelan told Yahoo News that the family is pleased with the attention from the State Department’s Moscow consular service, but has barely heard any new information from U.S. officials in Washington. “It’s mind-boggling,” he said during an interview with Yahoo News.

He said he was told by government officials that “sometimes the family doesn’t hear anything,” but he worries that the issue is slipping off the radar due to a lack of high-level public condemnation of Russian behavior.

Paul Whelan speaks with his lawyers before a court hearing in Moscow, Jan. 22, 2019. (Photo: Maxim Shemetov/Reuters)





David Whelan compared Paul Whelan’s case to those of the Ukrainian sailors who have been held by Russia since November 2018, and whose detention continues to be extended indefinitely. “The Russians have learned … they can really jerk people around and no one will do anything,” he said.

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Since Paul Whelan was arrested by the Russian FSB in Moscow on Dec. 28, 2018, and accused of espionage, the flurry of media and public attention has slowly faded. The FBI has questioned the groom at the wedding Paul was in town to attend, one source told Yahoo News, but little else is known about its investigation.

But the lack of public statements from the U.S. government may be strategic, according to John Sipher, a former officer in the CIA’s Clandestine Service who served in Moscow. “The Russians hate when we publicize things and spin them up,” he said. “They prefer to work on these things quietly.”

“The embassy and administration may be trying to appease and accommodate the Russians to see if it works, and may be holding off on escalation to see if it works,” he said.

However, his family members not being provided information on Paul Whelan’s status and efforts to bring him home is odd, he said. “We should either see quiet success … or we should be doing loud pressure.”

So far, however, there appears to have been neither.

Secretary of State Mike Pompeo in January said that the United States would seek additional information on Paul Whelan’s case and “if the detention is not appropriate, we will demand his immediate return.”

However, there have been no public calls from the State Department or the White House demanding Whelan’s release, despite the lack of evidence presented by the Russian security services that he committed any sort of crime. A readout of Pompeo’s last call with Russian Foreign Minister Sergey Lavrov on Feb. 13 showed the two discussed the chemical weapon attack in Salisbury, England, the decaying International Monetary Fund treaty and Venezuela. But Whelan did not come up, according to the readout provided by State Department deputy spokesperson Robert Palladino.

Secretary of State Mike Pompeo. (Photo: Andre Coelho/Bloomberg via Getty Images)

A State Department spokesperson told Yahoo News that the State Department is “following Mr. Whelan’s case closely” and is pressuring the Russian government “to ensure fair trial guarantees.” However, “due to privacy considerations for Mr. Whelan and his family, we have nothing further at this time,” wrote the spokesperson.

Most recently, the Russian court system extended Whelan’s detention three more months to allow for further investigation.

Whelan carries passports from the United States, the United Kingdom, Canada and Ireland. Consular representatives from each of the four countries, as well as U.S. ambassador to Russia Jon Huntsman, have managed to briefly visit him, despite obstacles presented by Russian security officials. There is some coordination between consular offices from the different countries to visit Whelan, according to one official familiar with the proceedings.

A spokesperson for the Irish Department of Foreign Affairs and Trade said “the department is continuing to provide consular assistance to an individual arrested in Moscow,” but the embassies of Canada and the United Kingdom did not respond to requests for comment.

“British Embassy officials are providing consular assistance to a British man detained in Moscow and are in touch with the local authorities. Our staff in London are providing support to his family,” wrote a spokesperson for the British Embassy in Washington.

Additionally, the family has been in touch with congressional offices, which, after some pressure, have begun publishing more statements in support of Whelan. Sen. Marco Rubio, R-Fla., posted a tweet in honor of Paul Whelan’s birthday, advocating for his release, and Rep. Eliot Engel, D-N.Y., the chairman of the House Foreign Affairs Committee, put out a press release demanding Whelan have access to consular officials, an attorney of his choice, and his family.

Yesterday American citizen Paul Whelan spent his birthday detained in Russia. He should be released and allowed to reunite with his family. — Senator Rubio Press (@SenRubioPress) March 6, 2019

However, it’s still difficult for the representatives to get into detail. Multiple congressional offices the Whelan family has been in touch with declined to comment or did not respond to requests for comment.

One of the reasons for silence on the Whelan case is that he has been unable to sign a privacy waiver, which would allow the State Department to speak publicly about the specific details of his case, according to his family.

There has also been discussion, on the part of the Russian attorney representing Whelan, as well as other U.S. experts, speculating that Whelan could be traded for a prisoner Russia is interested in bringing back home. Russian officials have repeatedly called for the release of Maria Butina, who pled guilty to being an unregistered foreign agent, and, according to court records, is still assisting U.S. officials in ongoing cases.

Though former intelligence officials who served in Russia have been adamant that Whelan does not fit the profile of an undercover spy, it’s possible he had some formal or informal role advising or assisting a U.S. or foreign partner intelligence service. Given that he was convicted in a 2008 court martial case for charges related to larceny and discharged from the Marines, and the fact that he is active on Russian social media, it may be unlikely that he is a spy. However, those things could add to a cover identity or throw suspecting parties off the scent, or could make him a potentially useful asset, i.e., someone who provides information to professional intelligence officers.

“Do I think he’s an American spy breaking Russian laws? No,” wrote Irvin McCullough, a national security analyst for the Government Accountability Project. “But the United States Intelligence Community has long-standing relationships with business people like Paul Whelan.”

The CIA’s National Resources Division often speaks to business people and other professionals about their trips abroad to gather information, McCullough pointed out. “Given Paul’s military and security background, his personal interest in Russia and his employer's alleged connection to Russia, I’d be surprised if the CIA didn't seek to debrief him once or twice,” he wrote. “That wouldn't make him a spy — and it certainly wouldn't give Russia cause to detain him like they have.”

Paul Whelan after a ruling regarding extension of his detention. (Photo: Shamil Zhumatov/Reuters)

The Whelan family has secured the pro bono assistance from Ryan Fayhee, a former Department of Justice attorney from within the counterespionage division. Fayhee tells Yahoo he was led to work with the Whelans because “they just frankly weren’t getting what they needed.”

However, Chris Costa, the executive director of the International Spy Museum and a former counterterrorism adviser to Trump who worked directly on hostage recovery, says Whelan’s case falls squarely under the responsibilities of diplomats at the State Department.

When he handled hostage cases, Costa says, he was called upon when an international terrorist or criminal group took an American prisoner, or an adversarial government captured an American and refused to acknowledge it, like in the case of Robert Levinson, the retired FBI agent who went missing in Iran in 2007.

“In a case with someone suspected of espionage, it would be mostly the State Department,” he said.

When asked whether the diplomatic channels have been sufficient, Costa replied, “I really do think it works. It’s imperfect, but it works.” He pointed to the Trump administration’s record of bringing Americans home. On Whelan’s case in particular, he said, “I do believe it’s being worked aggressively.”

The White House, when asked about its assistance to Whelan including any assistance provided by those working on hostage cases, deferred comment to the State Department.

Meanwhile, Whelan’s friends and family are hoping for a resolution soon.

One friend of Whelan’s who served with him in the military, who asked not to be named due to the ongoing sensitivity of the case, recalled a time when a fellow serviceman was killed in action and he flew out to Michigan to attend the funeral. Whelan, who lived in Novi, a small city in Michigan west of Detroit, picked him up and drove him over five hours each way to the remote Michigan town where the funeral was held.

Photo: Shamil Zhumatov/Reuters

“Paul is a very caring person who has always gone far out of his way to look out for the welfare of others, particularly for U.S. military members,” recalled the friend.

With Russia’s legal process moving forward, it’s unclear how long Whelan will be detained without an official U.S. government diplomatic response. And Fayhee, the attorney working pro bono for the Whelan family, says the safety of Americans overseas in the future is at risk if Russia is allowed to detain Whelan without consequence.

If the United States doesn’t condemn Russian aggression, Fayhee argues that “it sets a very, very dangerous precedent.”

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