Don’t Change the “No-Ransom” Policy

The 60 Minutes segment (Should the U.S. government pay ransom money?) that aired January 8th addressed U.S. policies in situations where Americans are held hostage by terrorists. It focused on the tragic case of journalist Steven Sotloff who was kidnapped in Syria in 2013 and beheaded by the Islamic State in Iraq and Syria (ISIS) the following year.  The intimation of the 60 Minutes story was that the U.S. ought to change its policy and pay ransoms.  In my view, this would be a serious mistake.

Among those interviewed were Sotloff’s still-distraught parents who, 60 Minutes says, “think he could’ve been saved if not for what even the White House now admits was its own ineffectiveness in dealing with the crisis.”  They believe “what really sealed their son’s fate [was] the government’s policy against paying ransom.”

Sotloff’s captors apparently offered two options for his release.  One was to “free all the Muslims in U.S. custody,” and the other was to pay approximately $137 million in ransom.  As to the latter, Sotloff’s parents seemingly expected the U.S. government to help them.  However, they found that was not to be the case, and even if they somehow privately raised the money, they claimed they were threatened by government officials who  allegedly told them: “You could be prosecuted, and also your donors could be prosecuted.”

Actually, 18 U.S.C. §2339B does make it a felony to provide money to any designated Foreign Terrorist Organization (FTO) – and ISIL was so designated in 2004.  Originally enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, the prohibitions on providing “material support” to terrorism – which includes money payments – are now, according to a December 8, 2016 report by the Congressional Research Service, “among the most frequently prosecuted federal anti-terrorism statutes.”

The Supreme Court in the 2010 case of Holder v. Humanitarian Law Project upheld the statute even where the scope of its prohibitions extended to merely teaching law to FTOs with a view towards having them turn from violence and enter the political process to achieve their aims

Accordingly, ransom payments to FTOs like ISIS could easily fall within the ambit of the statute.  In the 60 Minutes story Lisa Monaco, Assistant to the President for Homeland Security and Counterterrorism, did not deny the potential application of the law, but said that “the Justice Department has never prosecuted a family or friends of a family that has paid a ransom.”

Monaco also defended the “no ransom” policy by rightly pointing out that if you pay ransom for captives “you’re fueling the very activity that’s put them at risk in the first place.”  Still, Monaco said that “in many respects, we did not do right by these families [of hostages].  That we failed them.”  As a result, a task force was formed to examine the U.S. government’s hostage policy.

The task force report issued in June of 2015 made various changes in U.S. procedures for handling hostage cases, but left the “no ransom” policy in place.  However, it did officially state that despite the law, the Department of Justice “does not intend to add to families’ pain in such cases by suggesting that they could face criminal prosecution” under material support statutes, essentially signaling that private efforts to pay ransoms to terrorists could go forward without fear of criminal charges against ransom-payers.

(Interestingly, neither Monaco nor 60 Minutes mentioned that irrespective of any prosecutorial discretion exercised by the government, parties injured by terrorist acts may seek civil remedies against those who provide material support to FTOs.  In my view this could theoretically apply to ransom-payers, as well as to the contributors or financial institutions involved.)

In any event, I disagreed with the President’s revised policy at the time (With new ransom policy, Obama is thinking with his heart, not head) and nothing in the 60 Minutes piece changed my view.  The show did offer a new study by Peter Bergen, Christopher Mellon, and David Sterman that asserts:

No clear evidence exists to support the claim that Americans are targeted less often because of the no-concessions policy.  On the other hand, there is strong evidence to suggest that a no-concessions policy puts hostages at greater risk once abducted.

I think the study misses the point: if it became known among terrorist organizations that a country with the resources of the United States would pay ransoms in the range of $137 million and more for each hostage, it is inevitable that even more Americans would be viewed as lucrative targets.  In other words, even if it’s true today that Americans are not targeted less frequently because of the no-concessions policy, it easily could be very different in the future if it became apparent that the U.S. would, in fact, make concessions, to include making enormous ransom payments.

Bergen, et al., also rebuffed the notion that $137 million per hostage amounts to much.  They assert that:

[A]lthough ransom payments have undoubtedly provided large sums of money to terrorist groups, for a group like ISIS, kidnapping Westerners is only a minor source of revenue.  There are ways to deprive these groups of funding that do not cost American lives.

Nevertheless, an examination of the evidence in the footnote they use to support their contentions actually undermines their theory.  It cites a 2015 article calling for more aggressive bombing of oil fields so as to cut into the $50 million per month the oil trade then furnished ISIS.  Besides the fact that conducting bombing raids on oil fields is not without risk to Americans – not to mention civilians on the ground – $137 million from just one hostage would obviously replace almost three months of ISIS’ oil funding.

Put another way, ransom payments from just a handful of American hostages would equal the entire annual revenue stream from ISIS’s oil business.  Is this really just a “minor source of income”?  According to the very same article, the $50 million of oil income ISIS was earning each  month was “vital” to pay[ing] the salaries of its administrators and fighters, buy[ing] black market weaponry…and other essentials.”  Thus, the study’s own sources indicate that ransom payments of the size of that was sought for Sotloff would provide a “vital” source of income to terrorists.

Let’s face it, $137 million is still real money.  In my 2015 essay, I noted the following in reference to another hostage case:

[T]errorism expert Brian Michael Jenkins has pointed out that the $132 million ransom allegedly demanded by kidnappers for James Foley was the “the equivalent of several hundred thousand AK-47s at black market prices or more than 200 times what it cost al Qaeda to carry out the 9/11 attacks.”  One can only imagine the nightmares so much money could have fueled had the Foley family somehow managed to raise it.

Moreover, although the ransom demand was $137 million for Sotloff in 2014, what is to prevent it from being $200 million today?  Or a billion dollars?  What would be the limit if terrorists perceived that the U.S. is ready to pay?

None of this is an indictment of the Sotloffs.  No parent can be expected to want anything other than what they did, to get their son back safely at any cost.  But Presidents and national security policymakers need to think about more than any one individual. Their interests ought to be of the citizenry writ large.

The simple (albeit melancholy) truth is that we just cannot get into the business of paying hundreds of millions (or more) in ransom payments to terrorists to rescue a handful of Americans.  Why?  The barbarism those millions of dollars could enable would put vastly more people at risk.

This isn’t to say that heroic efforts to rescue hostages shouldn’t be made – the 60 Minutes piece mentioned an exceptionally dangerous Special Forces attempt to rescue Sotloff – but rather that we just can’t be providing resources to terrorists to commit more acts of terror.  As Ms. Monaco said:

We’d still be fueling their terror activity.  Whether it’s hostage taking or whether it’s terrorist plots, to kill Americans here in the homeland or elsewhere, is not activity that the United States government should be in the business of funding.

60 Minutes interviewer Lesley Stahl also touched upon a deeply philosophical question when she asked Sotloff’s parents: “What do you say when you hear people argue that Steven knew he was putting his life at risk by going into Syria at that point and, you know, kinda the burden’s on him?”  Sotloff’s father responded: “Steven was driven by truth.  That he had to report the truth.  He saw that there wasn’t information coming out of these areas.  And that’s really what drove him.”

However noble the intent this question remains: to what extent should the blood and treasure of other Americans be put at risk to underwrite the personal aspirations of one citizen, where that individual knowingly and voluntarily chooses to undertake what are plainly dangerous activities?

Again, enormous efforts – diplomatic or military – should be made to rescue any American in peril, irrespective of the wisdom of the behavior that created the risk in the first place, but are there limits?  And should those limits involve refraining from providing tens of millions to terrorist organizations?  Moreover, if ransom were to be paid, in the zero-sum game of budget priorities, from where should the hundreds of millions in potential payments be taken?  Health care?  Education?  Security?

Let’s ask ourselves: should Americans have any measure of personal responsibility for their actions?  This is not merely a theoretical question. Currently, American Caitlin Coleman, her Canadian husband, Joshua Boyle, along with their two children (born in captivity) are held hostage by the Taliban.  Last December Peter Bergen reported a video in which Coleman says her captors “want money, power and friends. … We are told there are Afghans who are prisoners in Kabul that these men care about.”

How did Coleman and her family fall into Taliban hands?  Journalist Susan Milligan reported in 2014 (War is No Vacation) that the couple “married after meeting online and [then] decided to travel, while Coleman was pregnant, to Russia, Kazakhstan, Tajikistan, Kyrgyzstan and Afghanistan.”  She distinguishes this tourist situation from that of a journalist going to a war zone saying that while there are “always a few reckless journalists” they still, “for the most part, were trying to cover up lackluster reporting and writing skills with foolish risk-taking.” In contrast, she says:

Going to a war zone for the thrill of it all is not only foolish.  It’s selfish.  I sincerely hope this couple and their child are able to come home.  And I hope they learn a lesson from it, however painful the learning might have been.

Still, Bergen calls for President-elect Trump, as one of his first acts, to negotiate for their release.  Bergen says:

Donald Trump prides himself on the art of the deal.  With that in mind, he should use the leverage he has to secure the release of the American and other Western hostages held by the Haqqanis in exchange for Anas Haqqani.

According to other reports, Anas was a “senior Taliban leader” involved in fundraising who was condemned to death by an Afghan court.  Bergen argues, however, that Anas “is not regarded as a leader of the Haqqani Network [an element of the Taliban].”

It is an attractive proposition to consider negotiation, but negotiation implies a willingness to make concessions.  The President and his national security advisors need to think hard about unintended strategic consequences that could come from yielding to terrorist demands, despite the near-term benefit to some individuals.

What, exactly, should U.S. negotiators be willing to concede?  What precedent does it set for the future?  Maybe there is a negotiated solution that won’t leave terrorists with a success of some kind, but I don’t see it.  Until it can be persuasively demonstrated that the interests of the American people as a whole are served, we shouldn’t be expecting any initiative to cut a deal with terrorists to end well.

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