Former Detainee and Detainee Family Interactions with the U.S. Government

Although EO 13698 and PPD-30 directly address hostage related issues, JWFLF included detainee cases in this study to assess the types of issues detainees and their families face from unlawful or wrongful detention. This section explores the similarities and differences in the experiences of hostages, detainees, and their families.¹ It also examines what policy changes might effectively respond to the issues impacting detainees and their families.

How are Hostage and Detainee Cases Similar?

While there are important differences between hostage and detainee cases, it is important to highlight the fundamental similarities between the two. At their most basic level, both types of cases represent an attempt by an actor to use the continued detention (and potentially violent death) of a U.S. national to coerce the United States into some action. Like a terrorist group who kidnaps a U.S. national, foreign governments who detain Americans often attempt to bargain with the U.S. government for some concession. Foreign governments may seek the return of prisoners held in the United States, or may detain U.S. nationals to apply pressure on the U.S. government to obtain sanctions relief, trade deals, or other financial incentives.² In some cases, these foreign governments seek out U.S. nationals to detain specifically in order to force the U.S. government to bargain with them,³ a phenomenon known a “hostage diplomacy.”⁴

In addition to the similarities between their cases on the international stage, hostages and detainees are likely to have similar experiences during their detentions. Often these detainees are kept in poor conditions and are subjected to cruel and inhumane treatment and psychological abuse, leading to similar types of mental health challenges as those faced by hostages.⁵ Detainees also face the potential for execution, just like hostages. While there are significant incentives for foreign governments to keep U.S. nationals alive, each detention is dangerously unique, a fact tragically proven by dual U.S. and Syrian citizen Layla Shweikani’s detention, trial, and execution at the hands of the Syrian government in 2016.⁶

How are Hostage and Detainee Cases Different?

While hostage and detainee cases are similar in many ways, there are also significant differences. The U.S. government’s decision to differentiate between hostages and detainees based on who is holding them is no accident. The fact that detainees are held by another government, as opposed to a terrorist organization, is significant. This distinction allows the U.S. government to employ a larger number of tools to achieve the release of its citizens. Prisoner exchanges with other countries, sanctions relief, favorable trade deals, and other international bargains can all be used to incentivize a foreign government to release a U.S. national.

However, that the U.S. government is dealing with a foreign government means that, across the U.S. government’s interagency, there are a larger number of stakeholders in any potential negotiation. The very decision to negotiate or not negotiate with a foreign government can have broader diplomatic, trade, security, or financial implications.⁷ The potential for conflicts across the U.S. government increases the challenges associated with deconflicting priorities and creating strategies to achieve the release of detained U.S. nationals.

Similarities in Detainee and Hostage Family Needs

Just as hostages and detainees often have similar experiences, their families do as well. The family members of detainees that spoke to JWFLF shared experiences and frustrations much like many of the issues reported by hostage families that make up the bulk of this report. These challenges and concerns are similar to those shared by the families of other detainee families who have spoken about their cases publicly.

All detainee families expressed frustration with the lack of communication from the U.S. government on the status of their loved one’s case and what actions the U.S. government was taking on behalf of their loved one. In feedback similar to that from hostage families, communication was consistently cited as a challenge, with families seeking more regular and transparent channels of communication with U.S. government agencies and administrations pre- and post-PPD-30.

All detainee families mentioned that they felt as though the U.S. government lacked a strategy for obtaining the release of their loved one. One detainee family member shared that the government never shared “what they were doing” and that the family was left “wondering if [the government] cared.” “Nobody [from the U.S. government] helped us,” another detainee family member shared, “fortunately, I have an employer that could help and a family that could help. Otherwise, we'd be adrift still.” From the perspective of some detainee family members, the U.S. government needed to do more to decouple “political issues from detainee issues.” Others offered similar feedback, highlighting the importance of an administration “having a stance” on how it would handle detainee issues.

Detainee families shared concerns and frustrations with the reintegration process. Detainee families voiced concern that, upon the return home of their loved one, little, if any, follow-up was conducted. In one case, a detainee family indicated that “no physical [exam] or follow up was provided. No one [from the U.S. government] checked on [my relative’s] well-being after the fact.” Another detainee family expressed surprise that their loved one did not undergo any debrief with any U.S. government agency. Another shared:

There needs to be a person that handles [detainees] when [they] come back because it's not one person a year, it's not two people a year. There are dozens of people, most of them you never hear about, and all [of them] go through the same thing. Some of them end up in financial ruin because of this, and some people end up probably with mental and psychological problems that could be alleviated with some more government interaction.

Unique Challenges for Detainee Families.

In addition to having many concerns similar to those experienced by hostage families, detainee families shared specific unique challenges. Most of these challenges revolved around the difficulties experienced by detainee families dealing with a foreign government’s legal system. All of the detainee families highlighted the challenges involved in coordinating and communicating with legal teams and family members remaining in the country where their loved one was detained, often under surveillance from a hostile government. The potential for family members and supporters to be detained for assisting detained U.S. nationals is a significant threat. In addition, detainee family members shared their difficulties in trying to navigate the legal systems and understanding the prison systems of foreign governments, often without significant assistance from the U.S. government or the ability to get access to U.S. diplomats or embassies in the countries where their loved ones were detained.

As the use of “hostage diplomacy” becomes increasingly prevalent,⁸ a discussion has emerged about whether the U.S. government should provide the same support now available to U.S. hostages and their families to detainees and their families.⁹ While the interviews that JWFLF has conducted cannot answer that question with complete certainty, the importance of supporting U.S. nationals detained abroad and their families requires an initial exploration of the issue and its challenges.

The Scope of the Detainee Issue

The question of scope looms large when considering the incorporation of detainees into the newly created hostage recovery enterprise. There are likely thousands of U.S. nationals detained abroad, including those in prison for actual criminal infractions. Winnowing this number down to just the “unlawful” or “wrongful” detentions will be challenging and time consuming. There are, of course, several definitional challenges with determining whether a detention is “unlawful” or “wrongful.”¹⁰ Foreign governments will often charge detainees with real crimes, although the actual guilt or innocence of the individual held is often a question of interpretation. Based on legal precedents, deciding the appropriateness of the detention of U.S. nationals detained overseas and deciding if U.S. government intervention is required appears to be a function of the executive branch.¹¹ Regardless of the final number of unlawful or wrongfully held detainees, their wholesale addition to the current U.S. government hostage enterprise would undoubtedly strain the system and, in the absence of additional personnel and resources, reduce its effectiveness. Some hostage family members shared concerns about the potential for the inclusion of detainees to the current system to negatively impact U.S. government efforts to return their loved one home.

Challenges for Government Coordination

In addition to the challenges with the number of potential detainee cases that might be included, the scope of the interagency concerns related to detainee cases poses additional challenges. Interagency coordination and deconfliction was a major consideration of pre-PPD-30 families and many of the changes recommended by the U.S. government’s Hostage Review dealt with the government’s deconfliction and coordination mechanisms.¹² It is likely that the competing demands of various U.S. government agencies make detainee cases more challenging from an interagency coordination aspect than hostage-recovery cases, as complex as they are. The challenge of competing interagency equities and the need for the State Department’s leadership on diplomatic negotiations with state actors are likely a significant reason for their exclusion from the newly established hostage recovery enterprise in PPD-30’s language.¹³

The Use of Terrorism Related Funds

The language in PPD-30 does make clear, however, that in dealing with detainee cases, “the State Department may draw on full range of experience and expertise of the Hostage Recovery Fusion Cell as appropriate” to support the families of these detainees.¹⁴ One aspect of support that detainee families are currently unable to access is the funding available from the U.S. government to support hostage families, which is based on their status as victims of terrorism related crimes. There are concerns that, if detainee cases are reclassified as “terrorism cases” to provide the families with access to these lines of funding, U.S. government officials will lose flexibility in their ability to negotiate with the organizations holding those detained. Potential options for incentivizing a release, such as an exchange of prisoners with a foreign government, could no longer be available if these cases are reclassified as related to terrorism.

The Need for Further Exploration

In addition to the difference in the sheer volume of detainee cases versus hostage cases, JWFLF recognizes that there are challenges in discerning between lawful and unlawful detentions. Likewise, there are considerable implementation challenges with expanding the scope of the current hostage enterprise while still maintaining its effectiveness and coordination. Regardless of those challenges, individuals associated with unlawful detentions undergo difficult experiences that largely mimic the challenges faced by hostages and their hostage families. In both instances, hostages and detainees are abhorrently misused as political collateral for terrorist organizations or foreign governments who exploit their lives as a means to obtain leverage, power, or influence. In the words of one detainee family member, support for U.S. nationals detained abroad is the “government’s duty.” They continued:

That responsibility towards Americans who have been [detained] abroad is not done, it’s never done. Most of these cases are for either journalists, government contractors, service members, or aid workers. These people are key parts of any civil society; they’re driving democracy. They care about the ideals that have been set up. People that have been wounded, hurt, mistreated, abused, and have had years in some cases stolen from them because of their commitment to the ideals of this country.

When he introduced EO 13698 in June 2015, President Obama stated: “It is true that there have been times when our government, regardless of good intentions, has let [the families of U.S. hostages] down. I promised them that we can do better.”¹⁵ In the light of the increase in “unlawful” or “wrongful” detentions and the potential for the death and torture of U.S. nationals detained abroad, JWFLF calls upon the U.S. government to examine ways that it can “do better” for these detainees and their families, before more of them experience the horrific trauma experienced by hostage families that led to the U.S. Hostage Policy Review.