For decades, terrorists who kidnapped Americans operated outside the reach of US law. The conviction last week of isis member El Shafee Elsheikh in the kidnapping and murder of four Americans—among them journalists James Foley and Steven Sotloff—is a landmark victory for justice that should change the way the US responds to future kidnappings.
The lessons to be drawn from the deaths of Foley, Sotloff, and aid workers Peter Kassig and Kayla Mueller have been debated inside the US government since a November 2014 meeting between Jim’s mother, Diane, and President Barack Obama. At that meeting, Diane Foley told the president that the US had failed hostage families by shunting them from agency to agency and threatening to prosecute anyone who tried to pay a ransom to bring their children home.
The president, moved by Foley’s appeal, ordered a comprehensive review of US hostage policy. It involved multiple government agencies, consultations with experts, and the families themselves. The result was a whole new structure for hostage response, which has led to vast improvements in the way that families are treated. But there was one policy that Obama would not change.
“I am reaffirming that the United States government will not make concessions, such as paying ransom, to terrorist groups holding American hostages,” Obama proclaimed at the end of the review process. Doing so, Obama argued, would make it likely that more Americans would be kidnapped. Despite some tinkering around the edges during the Trump administration, the no-concessions policy remains a bedrock principle of US hostage response.
But last week’s conviction of Elsheikh by a federal jury in Virginia suggests an alternative path, using a strategy that has worked with tremendous success at the domestic level. Journalists have an obvious stake in the debate over hostage policy because of the nature of their work in conflict zones. Nearly 20 percent of all Westerners kidnapped by non-state actors around the world are journalists, according to a 2015 West Point study. The number is much higher in certain contexts, such as during the 2013 shift in the Syrian civil war, when jihadist groups began actively searching for victims.
For decades, the strategy in the case of domestic kidnapping has been to save the life of the hostage first and then go after the kidnappers and bring them to justice. The success of this approach is the reason kidnapping for ransom is an almost nonexistent crime in the United States, as I discovered while researching my 2019 book We Want to Negotiate: The Secret World of Kidnappings, Hostages, and Ransom.
In 1932, following the public uproar over the abduction of the Lindbergh baby, kidnapping was made a federal crime. One of the key strategies that the FBI has used is known as ransom-as-lure. Using money stashed around the country at Federal Reserve branches, the FBI has employed ransom payments both to secure the release of the hostage and to apprehend the kidnappers. “They have to pick up the money somewhere,” former FBI hostage negotiator Gary Noesner told me. “Kidnapping for ransom is a very hard crime to pull off successfully.”
But when an American is kidnapped outside the United States, the US government has historically taken a very different approach. If the kidnapping is carried out by a designated terrorist group—as was the case with the Americans kidnapped by isis in Syria—the US will not negotiate and has sometimes pressured families not to do so. The result is that nearly 75 percent of Americans taken hostage by terrorist groups are killed by the captors. This compares with roughly 20 percent of European hostages, whose governments often pay ransoms.
The American no-concessions approach could be justified if it made Americans safer, as President Obama argued. But there is little evidence that this is the case. Numerous studies have concluded that kidnapping is largely a crime of opportunity—terrorist groups generally nab foreign hostages without checking passports.
Brian Jenkins, a former US Green Beret and current Rand Corporation analyst—and one of the nation’s leading experts on hostage policy—put it this way: “The most powerful determinant of whether or not there will be further kidnappings is not the policy of the government, but the fate of kidnappers or their organization. If kidnappers are apprehended and appropriately punished…then kidnapping will decline. If this is not done, then it does not make any difference what the policy is.”
While bringing terrorist kidnappers to justice is exceedingly difficult, the conviction of Elsheikh shows it is possible. The families of the American hostages killed by isis lobbied three administrations relentlessly, persuading Attorney General William Barr to agree not to pursue the death penalty, allowing the British government to provide evidence essential to winning Elsheikh’s conviction.
The lesson from the Elsheikh conviction is that the US should adapt the approach that has been used to eliminate kidnapping for ransom as a crime in the United States to international hostage cases: focusing first on winning the release of kidnapped Americans through all reasonable means, and then doing everything possible to punish the perpetrators.
“Accountability is essential to deter hostage-taking and wrongful detention of American citizens,” said Diane Foley and her husband, John, in a statement published following Elsheikh’s conviction. “Through this trial, the US has shown there can be justice.”
TOP IMAGE: SIRTE, LIBYA - OCTOBER 5: Journalist Jim Foley films Libyan NTC fighters attacking the west side of Colonel Gaddafi's home city of Sirte on October 05, 2011 in Libya. NTC forces are continuing their advance on Colonel Muammar Gaddafi's hometown of Sirte. (Photo by John Cantlie/Getty Images)