Change it, so fewer families grieve.

Photographer: Dominick Reuter/AFP/Getty Images

U.S. Ransom Policy Is a Mistake

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The Barack Obama administration has said it won’t reconsider the long-standing rule against paying ransoms in its review of policy concerning U.S. citizens kidnapped by terrorists abroad. That’s a mistake -- morally, politically and legally. In theory, it’s great to say that the U.S. government doesn’t negotiate with terrorists. In practice, we negotiate with terrorists all the time. And it’s outrageous that family members of kidnapping victims would be threatened with criminal prosecution for trying to save their loved ones' lives. The hostage-policy review should air these issues. If it doesn’t, then it will be seriously flawed.

To be sure, there’s nothing wrong with a little healthy government hypocrisy. The blanket statement that we don’t negotiate with terrorists and don’t pay ransom is supposed to send a message of strength to Americans, and a corresponding message of deterrence to potential kidnappers. But anyone taking the time to think about it knows that the slogan actually means that the government won’t negotiate ransom unless the stakes are high enough.

Thus, to give just one recent example, the Obama administration may wish that it never traded for captive U.S. soldier Bowe Bergdahl. But it did. The government may try to make a distinction by saying that Bergdahl was held in Afghanistan by the Taliban, with whom we are at war, so this wasn’t negotiating with terrorists, just an ordinary trade of prisoners. But the U.S. has also designated the Taliban a terrorist organization. So the distinction is not even symbolically convincing.

Government hypocrisy is another matter entirely when it comes to the families of private individuals who’ve been taken hostage. In these cases, it’s not just that the government won’t pay ransom. The Obama administration takes the position that it would be illegal for the families to pay ransom to terrorists. Indeed, there are reports that the government directly threatened some family members with prosecution if they were to try to pay ransom.

Morally, blocking a private family from paying ransom is a terrible policy. You can make the argument that if everybody paid ransom, there would be more kidnappings. But the reality is that, worldwide, almost everybody does pay ransom when a family member is kidnapped. In other words, the practice has already been universalized. It’s preposterous to think that terrorist kidnappers would let American hostages go on discovering that they were American and that their families were barred from paying ransom. If everybody else is paying, that destroys the moral argument that American citizens shouldn’t.

Politically, barring families from paying ransom is also a mistaken approach. For one thing, if they paid ransom, that would actually reduce pressure on the U.S. government to make risky military decisions under the political pressure to free the hostages. Sometimes it may not be worth it militarily to risk the lives of soldiers and innocent bystanders to save equally innocent hostages.

Yet with the families barred from paying ransom, the only recourse they have is to pressure the government into taking action. In the long run, we want the government to fight our wars rationally, not emotionally. Allowing private ransom would facilitate that goal.

What’s more, consider the optics of telling terrified family members that a supposed national interest in discouraging kidnapping might allow their family members to die. This favoring of the abstract interest over a human life runs against core American cultural values. Morality aside, it’s terrible politics for any president.

Last, there’s the legal problem. When the government says it’s a crime to pay ransom to terrorists, it presumably means the payment would violate the draconian statute that makes it a crime to knowingly provide material support to a terrorist organization. Intuitively, it would be nice to say that paying ransom doesn’t count as such knowing material support, because the family paying ransom doesn’t intend to help the terrorist organization; it just wants to get its family member back.

This argument from intent isn’t terrible, legally speaking. If the government wanted to adopt this interpretation of the statute, it could certainly do so. And it’s hard to believe that Congress, in passing the law, really meant for it to be used against Americans trying to save the lives of their family members.

The problem with the legal argument, however, is that the law bars material support made “knowingly,” not “purposely” or “intentionally.” Technically, the family member would know that money paid to a terrorist organization would support it. So the government is on defensible legal ground when it says the statute would apply to a family paying ransom.

But it’s very different thing to say the law could apply than it is to bring a prosecution under the law. The Obama administration could announce, as a matter of policy that it won’t enforce the material support statute against family members paying ransom -- the way the administration was happy to announce that it wouldn’t enforce the laws to deport certain undocumented immigrants.

Such an announcement would be supported by the fact that family members prosecuted under the law could defend themselves on the ground that they acted out of necessity or under duress -- two subtly different forms of defense to criminal charges. The reason the government threats work, of course, is that no one wants to run the risk of losing in a criminal case that could lead to many years in prison. But the truth is that saving the life of a family member seems like an excellent example of duress. The government, in other words, might not get convictions even if it tried to apply the law.

Looking strong is great. Looking strong is less great when it comes at the expense of saving one particular life, without a corresponding gain in saving other future lives. It’s time for the U.S. to face the reality of contemporary global terrorism, and start letting family members save their loved ones when it’s possible.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net