3. Key Concerns Amongst Hostage and Detainee Families

This report has examined the feedback from interviews with hostage participants and wrongful detainee participants to understand the impact of the U.S. government’s hostage policy. In the previous section, much of this examination has been quantitative, using numerical rankings that participants provided, often compared against the same type of rankings from the 2019 report. This section addresses some of the thematic issues and overarching concerns drawn from the interviews, where many voices shared common challenges or concerns. To the extent that JWFLF can provide a recommendation based on the input of participants and experts, we have done so, but in other cases we have simply tried to raise awareness about concerns shared by the families of hostages and wrongfully held detainees.

Many of the key concerns identified in this section revolve around the particular situation of wrongful detainees. Such concerns include a lack of clarity of definitions, particularly those differentiating hostages from wrongful detainees, as well as the limited and unclear access to the HRFC for wrongful detainees, questions over how the wrongfulness of a detention is determined, and concern over the extent to which detainees are able to access other resources seemingly provided by current policy. In addition, both wrongful detainee and hostage participants flagged concerns regarding the vacancy of the SPEHA position and the level of access to senior policymakers.

The U.S. government classifies individuals as either hostages or detainees based on the identity of the group holding them, whether it is a non-state or state actor.¹ There are reasons for this delineation based on the U.S. government’s capabilities and approach in handling these cases. The release of a person held by a foreign country is more diplomatically intensive than securing the release of someone held by a terrorist group, which would in turn, require more military, intelligence, and law enforcement support.

Many of the reasons for the differences in the support that the U.S. government provides the two groups involve legal authorities. Criminal and terrorist kidnappings are violations of U.S. law and, in these cases, the FBI will open a case, either using material support for terrorism or criminal kidnapping statues. As a result, the HRFC is able to access funds from the Victims of Crime Act of 1984 to support those family members. When U.S. nationals are detained by foreign governments, and those governments acknowledge that detention, no U.S. laws are broken since governments generally have the authority to arrest and detain individuals within their own borders. This, then, creates a challenge for supporting the families, as they do not qualify for the Victims of Crime Act funding the way that hostage families do. Further, the Department of State does not have a funding mechanism for providing a similar kind of support. In addition, these acknowledged detainees fall outside many of the authorities that authorize the capabilities that the intelligence community, Department of Defense, or the FBI use to support hostage cases. In essence, while these cases may be wrongful detentions, the fact that foreign governments have acknowledged the detention prevents families from receiving much of the funding and support from the HRFC.

These distinctions, however, are not necessarily clear to the families of detainees, who see their loved ones being held as political pawns similar to terrorist-held hostages and who, in trying to secure the release of their loved ones, have seen the diplomatic engagements and judicial processes available to them produce little effect. The lack of clarity has real effects; it increases confusion and difficulty during an already traumatic time. One family member commented that one of their biggest obstacles was the fact that they continued to “hit walls again and again because we were constantly trying to figure out the definitions.” This confusion creates wasted time and effort that could be used in constructive ways to secure the release of their loved ones.

This lack of clarity also creates frustration when families perceive that one group receives additional support that they are not entitled to, despite similar circumstances. As one of the following sections will discuss in more detail, the assumptions built into PPD-30 regarding access to diplomatic and judicial mechanisms for release are not always viable in foreign countries, some of which have an adversarial relationship with the United States. In these circumstances, many, but not all, of the differences between hostages and unjust detainees drop away, leaving family members feeling like they have few options to receive support. “We're all [in similar circumstances as] the hostage group, but with just different government responses,” a family member of a wrongful detainee commented.

PPD-30 clearly indicates that the Department of State is the lead agency for wrongful detainee cases and the complications surrounding funding and authorities limit HRFC support of wrongful detainee family members. Despite this, PPD-30 contains language that facilitates some level of access for these families to the HRFC. PPD-30 states that in dealing with cases where a foreign government confirms that it has detained a U.S. national, “the Department of State may draw on the full range of experience and expertise of the HRFC as appropriate, including the HRFC's Family Engagement Coordinator's proficiency in providing and ensuring professionalism, empathy, and sensitivity to the psychological and emotional distress experienced by families in such cases.”² It is unclear, however, in practice what it means to “draw upon the full range of experience and expertise” of the personnel at the HRFC. Do the HRFC’s personnel serve as advisors to individuals within the SPEHA’s office? Does the HRFC become actively engaged in these cases? If so, does State retain its status as the lead agency for the case? Does the HRFC become responsible for funding support to these cases? Even if these practical questions were answered, who determines which cases are authorized to draw upon the HRFC’s resources? The lack of clarity on when and how the Department of State is able to draw upon support from the HRFC has created a significant level of confusion about which organization is responsible for their cases among the families of acknowledged, wrongful detainees.

Wrongful detainee participants have expressed a need to better understand how and when their cases can receive support from the HRFC, in addition to understanding who makes this determination. Receiving this clarity would help wrongful detainee families better understand where to place their efforts in advocating for their loved ones.

In addition to a lack of clarity on how wrongful detainees access the HRFC, there is confusion over what makes a detention case wrongful, thereby gaining access to the SPEHA’s office. In general, families have expressed concern that these guidelines are classified and are not shared. “We get a little bit here and there,” one participant shared, “[but] we need to know more.” One wrongful detainee participant shared that their loved one’s case was considered wrongful because their loved one did not receive any due process or any impartial judicial processes and was absent for more than one year. Other participants shared their concerns that the status of diplomatic ties between the U.S. and foreign governments played a role in whether a case was considered wrongful. Regardless, it is clear that there is no unclassified, publicly available definition of what makes a detention wrongful, nor, according to the individuals who participated in these interviews, are such distinctions being systematically shared with wrongful detainee families as a result of engagement with the Department of State.

In addition to not knowing what constitutes a wrongful case, participants also shared that they do not know who within the U.S. government would make the determination over whether their loved one’s case was considered wrongful and whether there is a process for those who the Department of State have decided are not wrongful cases.

For the family members of individuals detained by a foreign government, getting their loved one’s detention classified as wrongful is often the first of many hurdles they must overcome in order to receive the level of support and attention they feel is required to secure the release of their loved one.

PPD-30’s distinction between the hostages and wrongful detainees and the general exclusion of detainees from the hostage recovery enterprise, was based—in part—on the idea that individuals held by state actors had access to additional mechanisms to secure their release, including judicial processes and diplomatic engagements.³ In the interviews that made up this report, wrongful detainee participants shared that this is largely not the case. Wrongful detainee participants shared that the legal processes they have engaged with within the countries where their loved ones are detained have been ineffective. From the perspective of these participants, these legal systems are largely for show, with the outcomes of the trials and sentences are either influenced by the foreign government or predetermined. These participants have, and will continue, to work within the legal system of the foreign government in hopes that it has an impact; however, they do not see the foreign legal system as a viable way to achieve the release of their loved one.

In addition, routine diplomatic engagements made by the Department of State’s Bureau of Consular Affairs were often viewed as insufficient to achieve the release of their loved ones. Wrongful detainee participants shared that often the government has either no diplomatic ties or strained diplomatic ties with the foreign governments holding their loved ones, making the achievement of a release through the routine diplomatic services offered by Consular Affairs unlikely.

In large measure, wrongful detainee participants shared that, in their experiences, the assumptions underlying the exclusion of acknowledged detainees from the hostage recovery enterprise are invalid. The mechanisms presumed to be available to this population are largely insufficient to secure the release of their loved ones, requiring an increased level of support from the U.S. government.

Hostage and wrongful detainee participants also shared challenges created during the vacancy in the SPEHA’s office. The participants shared their concerns that, without an appointed SPEHA, the office was less able to perform its functions.

During the change in administrations between President Obama and President Trump, there was no SPEHA from January 2017 until May 2018. In the interviews that made up the 2019 report, families expressed concerns that the vacancy in the position hampered the ability of the office to perform its duties.⁴

During the timeframe that the interviews forming the 2020 report were conducted, the position was also vacant. In September 2019, Robert O’Brien, the then-SPEHA, was named as President Trump’s national security advisor.⁵ His assumption of the new role left a vacancy in the SPEHA’s position for more than five months, with the Principal Deputy Special Presidential Envoy for Hostage Affairs Hugh Dugan assuming the position in an acting capacity. During the interviews, participants again expressed concerns that the vacancy impacted the ability of the office to vigorously pursue options to secure the release of their loved ones. Overall, most families commented that the differences in working with an appointed SPEHA(s) and an acting SPEHA(s) were substantial, as the acting SPEHA tended not to have the same influence within the interagency as an appointed SPEHA. Additionally, participants noted that, during this timeframe, there were a number of vacant positions within the office normally held by career diplomats. In general, families noted that progress in their cases overall and, specifically, diplomatic efforts to resolve their cases, slowed significantly during the vacancy.

At the time of this writing, President Trump has announced the nomination of Roger D. Carstens, currently the deputy assistant secretary in the Bureau of Democracy, Human Rights, and Labor at the Department of State as the SPEHA.⁶ The appointment of a SPEHA continues to be an important part of ensuring the effective functioning of the hostage recovery enterprise and a signal of the priority the current administration places on bringing Americans home.

Families have expressed concerns that hostage and wrongful detainee cases do not have the appropriate standing to influence the various agencies within the U.S. government involved in resolving hostage and wrongful detainee cases.

Prior to the changes created by PPD-30, there was no systemic method for hostage cases to gain the attention of the White House. As the U.S. government conducted the 2015 Hostage Policy Review, there were a variety of perspectives over the role and standing of a hostage coordinator. In May 2015, prior to the announcement of the Obama Administration’s restructuring of the U.S. government’s hostage enterprise, Rep. John Delaney (D-Md.) introduced a bill to create a “hostage czar,” a National Security Council-level position dedicated to “coordinating efforts to locate and free U.S. hostages.”⁷ Some experts expressed concern that the creation of a position within the White House would signal to terrorist groups the opportunity for increased leverage.⁸

Ultimately, the Obama Administration decided against the creation of a National Security Council-level position. PPD-30 and EO 13698 created a pathway for hostage concerns to be elevated to the National Security Council through the Hostage Response Group (HRG).⁹ The HRG was designed as a sub-deputies’ committee led by the senior advisor to the president for counterterrorism.¹⁰ It is at that level where disputes within the interagency are decided and “policies and recovery strategies” presented by the HRFC are approved.¹¹

From the government’s perspective, this has largely been successful. A 2016 review of the implementation of EO 13698 conducted by the NCTC found that the HRG was an “effective policy coordination body that ensures increased awareness and coordination of potential and ongoing recovery efforts across the USG.” In the NCTC’s assessment, the HRG had “achieved its objectives in this area.”¹²

Participants, however, have expressed concerns that this is not sufficient to achieve the release of their loved ones. While participants realize that other national security issues compete with the release of their loved one as priorities, some have expressed concerns that the various agencies within the U.S. government are pursuing efforts that are contradictory to those being enacted by the HRFC and the SPEHA’s office. Participants expressed concerns that the HRFC cannot sufficiently direct the activities of the interagency when necessary.

Participants also shared that they feel as though their cases are missing top level engagement within the U.S. government. Participants are often told that particular issues related to their cases are going to be decided at the Deputies Committee within the National Security Council. In both administrations, however, neither the director of the HRFC nor the SPEHA was a member of the Deputies Committee. Both hostage and wrongful detainee participants stated that former SPEHA Robert O’Brien’s assumption of the national security advisor role was helpful for increasing the priority of their cases, further highlighting the need for a voice within the White House to address hostage and detainee concerns.

While the U.S. government is unlikely to elevate the HRG above its current level as a sub-deputies committee, there are other mechanisms that can be employed to consolidate the HRFC’s influence over the resolution of hostage cases. The HRFC, for instance, should have jurisdiction over agents working cases within field offices, for instance, rather than the special agents in charge of their respective field offices. Formalizing relationships that would give more authority to the HRFC to direct hostage cases within the FBI could be an initial step in increasing the capacity of the HRFC to influence the resolution of hostage cases across the interagency. One hostage participant recommended elevating the position of SPEHA to that of an ambassador in order to increase the office’s authority within the interagency.

From the perspective of hostage and wrongful detainee participants, taking steps to increase the standing of the hostage recovery enterprise within the U.S. government would both increase the priority of hostage and wrongful detainee issues and increase the likelihood that their loved ones return home.