Doha Debates– Don't settle for a Divided World
Podcast / September 23 2022

Negotiating an American prisoner's release from Myanmar, Part 1

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Welcome back to The Negotiators, the podcast that brings you stories from mediators, troubleshooters and negotiators around the world. The show is a collaboration between Doha Debates and Foreign Policy, hosted by FP deputy editor Jenn Williams.

We begin our second season with a dramatic prisoner negotiation. Danny Fenster is an American journalist who covered the coup in Myanmar in 2021. Months later, while trying to leave the country for a visit with his family in the United States, he was arrested at the airport in Yangon and eventually charged with sedition. He was sentenced to 11 years in prison.

In this two-part story, we hear from Mickey Bergman, who helped negotiate Fenster’s release. Bergman is the vice president and executive director of the Richardson Center for Global Engagement, a charitable organization that helps Americans who are wrongfully imprisoned around the world. On the show, he describes the grueling process of making the right connections in Myanmar and negotiating the deal—at times over the objections of the US State Department.

Listen to part 2.

Full Transcript

Note: We encourage you to listen to the audio if you are able, as it includes emotion not captured by the transcript. Please check the corresponding audio before using any quotes.

 

[SUSPENSEFUL INSTRUMENTAL MUSIC]

 

JENN WILLIAMS, HOST:
Hey everyone, welcome back to Season 2 of The Negotiators. If you’re new to the show, we examine one interesting negotiation on each episode. We usually do that by talking to someone directly involved in the process: a mediator, a troubleshooter—that kind of thing. 

 

Our show is a partnership between Doha Debates and Foreign Policy. It grew out of a conviction that we all share—that the world is a better place when people understand all sides of an issue. I’m your host, Jenn Williams, one of the deputy editors at Foreign Policy

 

We’re gonna get right to the story, because today’s show is incredibly dramatic. You all might remember Danny Fenster. He’s an American journalist who moved to Myanmar a few years ago and worked for a couple of English-language publications there. So while he was there, a military coup took place in Myanmar.

 

NEWSCLIP WITH AMERICAN MAN SPEAKING:

The military declared a state of emergency, claiming it has taken control of the country in response to what it’s calling “election fraud.” NBC News foreign correspondent…

 

NEWSCLIP WITH ANOTHER AMERICAN MAN SPEAKING:

The fact that they performed this coup today—that calls into very massive question whether they can be trusted at all to hold elections in the future. 

 

JENN: That was in early 2021. A day before the democratically elected government was due to be sworn in, the coup leaders jailed a whole bunch of officials, including Aung San Suu Kyi. Fenster covered the coup. A couple months later, he made plans to visit his family back home in Detroit, but when got to the airport in Yangon, police arrested him. And eventually, he was charged with sedition. I don’t want to say much more, because you’ll hear the entire story in a minute from Mickey Bergman, who tells it beautifully. 

 

So, Bergman. How should I introduce him? Basically, he’s a professional negotiator who spends a lot of his time trying to get hostages released. Well, not just hostages—people are wrongly imprisoned around the world for all kinds of reasons. He does that through his work at the Richardson Center for Global Engagement. His title there is vice president and executive director. Mickey’s boss is Bill Richardson, the former governor of New Mexico. You’ll hear Mickey refer to him as “Governor Richardson,” or sometimes just “the governor.”

 

OK, I think that’s everything you need to know. This is part one of a two-part story. We thought it would be a little mean to keep people in suspense, so we’re releasing both parts at the same time. OK, here’s Mickey Bergman.

 

MICKEY BERGMAN:

Danny gets arrested on May 24th. Within the same day, I get a Facebook message from a friend of mine who I haven’t seen in 20 years, but we went to summer camp together, and she says, “Hey, Mickey, I’m on a Facebook group of lawyers, and one of them is saying that she has a relative that was just arrested in Myanmar and seeking help. And because I know that that’s what you do, I suggested—do you mind if I put her in touch with you?” And of course, I responded immediately. I was like, “Yes, here’s my details.” And literally within two hours, we were already on the call with Danny’s brother Brian. 

 

Brian tells me, “Look, my—as far as we know, Danny has been detained at the airport. All we know is through texts that he sent his wife. But we are looking to figure out what to do with this. We’re kind of lost.”

 

Danny Fenster, a young journalist, worked for two different publications, as far as I know, in Myanmar. One of them was Myanmar Now, and the other one was Frontier. At the time of arrest, he was working for Frontier. And Frontier, it’s a magazine. It has—he was an editor there, not even a writer. It’s a legitimate publication. There’s no ban against it since the coup in Myanmar. But Myanmar Now is banned. The military government, the junta in Myanmar, banned Myanmar Now because of their work in opposing them. And they have claimed that Danny’s name was still on Myanmar Now‘s website as an employee, and that’s why he was initially detained. Whether that is correct or not, I’m not sure. But that’s the background on Danny.

 

So Myanmar has gone through a transition from a military-led party ruling—USDP, that was the name of the military party there—into a democracy, into elections. That was the big, famous 2015 elections in which Aung San Suu Kyi’s party, the NLD, has won the majority of the seats in the parliament. She was the de facto leader. And that went between 2015 until February of 2021, where the military had a coup and took over, put Aung San Suu Kyi in house arrest, as well as the president—the acting president at the time—and the military has since then installed themselves as a military government. 

 

Once the military took over, they changed a bunch of laws and applied them, so anybody that actually writes or says something that they deem to be against the government, their government, that qualifies as inciting a civil unrest and endangers the country and endangers the people, and therefore there’s a section, specific section, there in the law that they use a lot in order to arrest people and throw them into jail.

 

Danny’s brother, Brian, immediately started a social media campaign. Very effective, by the way. And I do know—because I had a conversation with him at some point in which he asked me if I think that was a major mistake. Why? Because it is the default approach by the government, typically, to tell the family, “Oh, if you make a big deal out of it, the price will increase for getting him out.” That is generally untrue. You have to realize as a family—and we tell that to the families all the time—the objective of your public campaign or strategy, media strategy, is not to convince the captors to release your loved ones. You’re not going to do that. You can’t convince the military junta in Myanmar to release your loved ones. You can’t convince Nicolas Maduro in Venezuela to release your loved ones. And nothing that you will say on the other side will hurt, because the leaders, the captors, expect the families to be emotional. The sole target of your media strategy, as a family, is to put pressure on our own government to solve the issue. And so the target and the objective is the president of the United States on this. And that’s when the nuance comes, because if you know that there’s actually something happening, you want to give them the space. But if you know that it’s not, you need to push them and push them and push them. 

 

So the first thing we do after I speak to Brian is inform the State Department that we have been approached by the family, so they know that we’re working it as well. At that point, State Department, of course, is aware of this already, but they’re also just—this is the same day, so they’re just trying to get their act together as well. The challenge for the US government at that point—because of the coup and the military government in Myanmar, the US government has zero engagement. We don’t recognize them, and therefore, we can’t engage with them at high level. So the ability of the US government to actually get into the work and negotiations to release an American citizen is limited to advocacy through third parties. So what we decided to do is to pull on our old relationships. And there’s a background here that is relevant, because this is not the first time we are engaging with Myanmar. Governor Richardson, himself, has known Aung San Suu Kyi since the early 1990s. When she was in house arrest, he was one of the first Western parliamentarians that was allowed to visit her, because of a relationship that he was able to develop with the military ruler at the time. And so they’ve been friendly. They haven’t been in close touch, but in 2012, the governor and myself traveled to Myanmar and met with Aung San Suu Kyi. And that was shortly after they announced that elections are coming in 2015. So we were there three years ahead of the elections, and we asked her, “How can we help?” And she said, “There’s two things. One is help train the people who are running or going to run in elections.” Not only her party, all the parties. “And two is try to get some investment into Myanmar.” And so we took those two things, and we run with it. Between that point in 2015, we’ve trained over 3,500 young political activists in Myanmar. We had a focus on women, but it was multiparty. So we trained also the military party, which later on becomes very important for this story. And that is because the rest of the world was focusing on training Aung San Suu Kyi’s party. And we wanted to make sure that we do it across the parties. 

 

So that was our engagement from 2012 through the elections with Myanmar. And at the end of that engagement was a confrontation between Governor Richardson and Aung San Suu Kyi in January of 2018, when she asked him to join a commission, an international advisory commission, to help her with the crisis in Rakhine State, also known as the Rohingya genocide. And in that, we’ve prepared for this, and we worked really hard in preparation. We made a miscalculation there about where Aung San Suu Kyi is as an individual. We assumed that she wants to do the right thing but is limited by the power of the military. When in fact, we learned very quickly that she actually believes the narrative of the military. And coincidentally, at the same time, there were two Reuters reporters—one of them, Wa Lone, who was a good friend of mine—that were held. And so we figured out that when we go there, we actually try and convince her, also, to let them go. And we did that within the first meeting. And that backfired. She got into a very vocal fight with the governor, criticized him, said a few things that are completely outrageous, including about the Rohingyas. And the governor decided that he needs to quit, immediately, that advisory board. 

 

When we left Myanmar after the fight in January of 2018, we were basically persona non grata in Myanmar. At that time, it was my ninth visit to the country, and I thought, “I’m never coming back here. I won’t be able to.” And here’s the funny thing about this type of work for the military. The fact that the governor was publicly critical of Aung San Suu Kyi gave him a lot of credibility and a lot of leeway in engaging them. And we knew that. The rupture with Aung San Suu Kyi was based on accusations that we’ve had on the military conducting genocide. That matter much less for them. It’s the obsession with Aung San Suu Kyi and the criticism of her. So we knew that we probably have some credibility, but we had to figure out how to penetrate that, because the people are new. The new commander-in-chief there is not somebody we’ve met before.

 

When we looked at—in terms of our strategy of trying to get Danny back home, there were basically two big parts of it. The first one is getting to the meeting, getting invited, getting to that meeting with the leader of the country, the leader of the military, the commander-in-chief, in order to be able to actually make the request. So that’s a big part of it, and that takes a long time. It’s also when we worked on Otto Warmbier in North Korea, that part took six months to just figure out how to get in and how to do it. The second big part is, once you’re in, what’s your tactic of how to actually negotiate for a release? But it might be surprising that so much of the negotiation’s not about the release, it’s just negotiations of how do you get in front of a person to have the meeting so you can actually negotiate? And so we were trying to figure out how we can get to send a message, because you can’t just pick up the phone and get somebody there. You need to have some sort of an avenue. And we decided to go—we had two options, and we decided to pursue them simultaneously. 

 

The first one was indirect contacts and conduits that we have with the military. Some of them came back to us very quickly, saying, “Yeah, we’re not going to touch this,” because they were worried and they were afraid for their own security. Some of them were starting to work on it. And these things are very, very slow. And the second track that we were pursuing was much more creative, I would say, or interesting, and that was an individual named Ari Ben-Menashe, who was hired by the military government in Myanmar to basically be their lobbyists, or representative of their interests in the US, even though he lives not in the US. And as you can imagine from the name Ari Ben-Menashe, he’s Israeli citizen, as well. And the governor thought, “Oh, you two are Israelis. You can probably connect.” 

 

And I looked into Ari Ben-Menashe, into his background a little bit, to figure out how and what can be done. And Ari Ben-Menashe is a former Mossad agent that actually had a falling out with Israel. But over the years, he also served and handled the Myanmar profile or portfolio for the Israeli agency at the time. And so he had those relationships. And I found—through a source that I can’t reveal—I found his number, and I called him. And we embarked with him over—for about two and a half months of very interesting exchanges that eventually we figured out did not amount to anything. A lot of promises, a lot of potential, but it didn’t work out. 

 

It’s common that we end up reaching out to questionable people or that questionable people reach out to us. And some of these might seem like they’re completely crazy. But there has been instances in the past where some of the crazy actually worked. And because we have, we have a single objective, which is getting our person back home, we are okay taking some of those risks. Of course, we don’t do anything illegal, but we do engage with people with complicated backgrounds. 

 

So we had a few individuals in Myanmar, including former military, retired military there, that are good friends and that we trust them, that we asked them. Some of them were not willing to engage in that. For them, the history that we had, especially the fight with Aung San Suu Kyi, was problematic. And some of them were not Myanmar nationals. They were actually international people, Americans and other nationals that had—we knew had relationships. And with them, it was just a matter of, “Would you mind vouching for us so we can get that initial conversation?” And that process takes time. And for us, basically, there was a period between the end of May, when we stepped into it, until middle of August that we actually managed to break through.

 

JENN: You’re listening to The Negotiators, a partnership between Doha Debates and Foreign Policy. We’ll be right back.

 

[SUSPENSEFUL MUSIC]

 

JENN: Welcome back to The Negotiators. I’m Jenn Williams. Before the break, you heard Mickey Bergman describe how hard it can be to get to the right people; the gatekeepers. After all, you can’t always just pick up the phone. In this case, it took several months. OK, back to the story. 

 

MICKEY: What led to that breakthrough? Probably two of the different indirect sources that we used to get to the foreign minister panned out. And we got a note from the foreign minister to say that he is looking forward to talking to the governor and set up a time for a call. Our engagements with Myanmar had to be about COVID and about humanitarian assistance, because that was what they were interested in. The governor does not raise the issue of Danny Fenster. We know and we assume that they know we’re interested in that. It’s a big story. It’s a big issue. They’re holding an American—not a dual citizen, an American journalist. And they know Governor Richardson’s history as well. There is no reason to raise it, because we knew that the only way to resolve it is when we get to the leader himself. 

 

The outcome of the call was that the foreign minister tells Governor Richardson that they would love to see us come and visit, and to focus our discussions on humanitarian assistance and COVID assistance. And the governor tells him, “That’s great. We need a letter of invitation in writing in order to make sure that our government understands that this is for real.” 

 

So two weeks after the call with the foreign minister, we received the letter of invitation. And it’s a very positive letter, very succinct, and saying, “We’re excited to”—it’s very friendly, you know—”We look forward to seeing you, to hosting you in Myanmar. We look forward to discussing the issues of COVID and humanitarian assistance.” And we take that letter. We immediately share it with the State Department to let them know that we got it. Because at that point, we’re ready to start logistically planning for a trip. That’s when things start changing in the relationship between us and the US government. 

 

Within two hours of us sharing that letter, we get a call from the State Department asking us to halt. When I ask why, they said, “Because we have an indication that in a few days he will be released.” So all we need to do is just sit quiet and let the, let the process go. He has another court hearing; I believe the court hearing was September 5th. So just a few days later. And I said, you know, “Thank you, I’ll discuss this with the governor.” 

 

And the governor and I talk, and we realize that there’s no way we’re going to be able to get on the ground before that anyway. Might as well comply and see what happens. So we decide to, basically, to slowball the process. So slowballing—it means that we respond, “Yes,” but we put the dates a little bit later to see, to give that space to, you know, if the State Department’s indications are correct. Of course, the State Department doesn’t share with us what those indications are. We ask, but they can’t, because we don’t have a security clearance, and that was classified. 

 

Once the State Department asked us to hold, a bunch of other things started happening. The head of the Global Fund—which is the UN entity backing the UN’s efforts on vaccines and international vaccines when it comes to COVID—the person that we reached out just a week before and scheduled a call, canceled. It was never rescheduled. It just seemed as if the US government is doing everything they can to shut down our effort. Of course, that doesn’t stop us in our preparation, because if we can’t rely on collaborating with the US government when it comes to humanitarian assistance and COVID, we needed to find another way of getting it done. And so we engaged with the humanitarian, the UN humanitarian agencies, on the ground to see what they might need, what their priorities are, just to get a sense of what it is that we can advance. And we basically started preparing for ourselves—what is our list of things that we can bring to discussion? Because we wanted to be very genuine with the government of Myanmar. They invited us to talk about this. We need to come and talk about this. Can’t be fake. It’s not the Trojan horse. It has to be real, and it has to be tangible. 

 

Interestingly enough, in that period—so we had the call with the Global Fund was canceled, abruptly. And then I get a message from the US Embassy in Yangon that tells me, “Well, you’re just going to have to trust us on this. We know what we’re doing.” For me, that’s a trigger. [CHUCKLES] I have to admit it’s a trigger, because whoever is the person that sent it to me—and it was a high-level official from the embassy there—you don’t use that language. A, you don’t know what you’re doing, because this is your first time ever dealing with a case like that. We have decades of experience in this. And second, “you have to trust us”? I don’t know you. Why would I trust you? If you tell me what it is that you’re doing, maybe I’ll believe it. But September 5th came. He had his hearing, Danny Fenster had his hearing, and was remanded for two more weeks. 

 

So we decided, “Okay, we need to move forward.” I had another call with the State Department and I was told, “No, no, no, please wait two more weeks, because there’s still a COVID lockdown.” So the court briefing was not in person. It was remote. “In two weeks, he has another one. Then it will be resolved.” We contemplated again. We decided to comply again and delay. At this time, we’re just playing with the foreign minister in Myanmar about the dates of when we can do it, logistically. And then, I think it was October, October 6th—so we’re already more than a month since we got an invitation that we’re getting delayed from State Department or asked by State Department to delay—October 6th, Danny Fenster has another court hearing in which not only he is remanded for two more weeks, but they added more charges against him. 

 

And I’ll say something here, too. In general, when we have anybody that gets detained that way, there’s two windows of time or an opportunity. The first one is immediate, and that is the window in which the system, the country or the captors don’t really know what to do with this, it just happened. And the message you try to send them at that time is to say, “Look, nothing bad happened yet here. You have an opportunity to just say, ‘Release him,’ and say, ‘We have stopped him for questioning. We had an investigation. No charges filed, no harm done. He’s free to go.’” And that, typically, that window—you know, there’s…it varies, but typically that window lasts about two weeks to three weeks. That window closes when there’s charges filed. And when there are charges filed against an individual, now you know that the captors are digging in and it’s going to be a longer term, and that’s when the second window opens. And you need to start playing the humanitarian political game. And that’s when the governor and I have a conversation and we say, “State Department is 100% wrong about this. It’s going the other direction. We need to make a move.” And so we schedule our trip.

 

Now, retroactively, I know and I can tell you, the US government, because they don’t have direct engagement with the military government in Myanmar, used a third-country businessman and a third-country diplomat as the conduit to pass messages. And those individuals gave them the indication that it’s going to be resolved. Here’s the problem with that. The businessman is somebody that is close to the leader but also has a business interest in Myanmar. So of course he’s going to tell the Americans, “Oh, I have it under control.” To me, it was astonishing that our own government would rather rely on a third-national individual rather than relying on a former US diplomat who’s been experienced and successful in these things to work this. 

 

The day before we take off, I call Brian Fenster and I tell him, “Look, finally our trip is going ahead, but I need to tell you something. The State Department is asking us not to raise Danny, Danny’s name, when we’re there. Repeatedly, the State Department asked us to de-link our visit from Danny Fenster. In other words, not to raise Danny Fenster when we’re there.” And then I paused, because I needed to see his reaction. 

 

If Brian would have told me, “Oh, screw them. You do—you know, you go and go for it,” then I would have had my orders and would have been fine. We have our mandate. He didn’t. He was silent for a few seconds and then he said, “Well, I guess if that’s what they’re asking, maybe they know what they’re doing.” And I said, “OK. But I have to tell you, Brian, that if we have an opportunity to bring him home, we’re not going to leave him behind.” And I was laughing and Brian was laughing. He’s like, “Yeah, please don’t leave him behind if you have an opportunity to bring him.” And that was basically the minimum mandate that we needed, because from our perspective, we were genuinely going to go on this mission, private humanitarian mission, talk about humanitarian assistance, talk about COVID. And if we had the opportunity, if we felt we had the opportunity, we would make the push for Danny. And we took off the next day.

 

We arrive directly to the capital, Nay Pyi Taw, and we have meetings with about four different ministers over those—the span of two days. The Minister of Health, the foreign minister, of course, the Minister of Social Welfare and the Home Affairs Minister. And we stick to the points that they’ve invited us to discuss. The meeting with the Minister of Health was especially fascinating, because he explained to us their plan of how to get the population vaccinated. And he’s not a politician, he’s a doctor. And it reminded us very much of Dr. Fauci, like, he doesn’t care about the politics. He’s driven by his profession. And the discussion was very substantive. We had some good ideas and good discussions there of what to do. On the second day, that’s when they scheduled—after all these meetings for the ministers—that’s when we had the scheduled meeting with the commander-in-chief. And we knew that that was the money meeting.

 

JENN: That was Mickey Bergman, the vice president and executive director of The Richardson Center for Global Engagement. He tells the rest of the story in episode 2, which you can hear right now. 

 

In the meantime, I’ll tell you that The Negotiators is produced by a bunch of really smart people at Foreign Policy and Doha Debates, including Rob Sachs, Rosie Julin, Claudia Teti, Japhet Weeks, Jigar Mehta, Amjad Atallah and Dan Ephron. Laura Rosbrow-Telem is the show’s senior producer. Thanks to Nelufar Hedayat, Govinda Clayton and James Wolley for helping create the show. 

 

Foreign Policy, where I work, is a magazine of news and ideas from around the world, and we encourage you to subscribe. Go to foreignpolicy.com/subscribe. Doha Debates is a production of Qatar Foundation, where the most urgent issues of our time are discussed and debated. Tune in at dohadebates.com.

 

On the next episode, Bergman hires a private plane, but the owner gets cold feet.

 

MICKEY: A day before we took off, the owner flipped and said, “wait a minute,” because in his mind, we’re going guns blazing in order to rescue somebody using his plane!

 

That episode coming up on The Negotiators. I’m Jenn Williams.