5. Key Concerns Among Hostage and Unlawful or Wrongful Detainee Families

This report has examined the feedback from interviews with hostage participants, unlawful or wrongful detainee participants, advocates, and current and former U.S. officials and senior military officials to evaluate the effectiveness of PPD-30’s organizational changes intended to improve government coordination and engagement with hostage families. 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 and 2020 Bringing Americans Home reports. 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 unclear 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 their level of access to senior policymakers.

In official U.S. government definitions of hostage-taking, the term is defined broadly, focusing on the coercive nature of the act. PPD-30 clearly defines hostage-taking “as the unlawful abduction or holding of a person or persons against their will in order to compel a third-person or governmental organization to do or abstain from doing any act as a condition for the release of the person detained.”¹ While this definition of hostage-taking could be used to describe both individuals held by non-state and state actors, the U.S. government excludes those Americans held by foreign governments from the term hostage. PPD-30 highlights this distinction by stating that the directive “does not apply if a foreign government confirms that it has detained a U.S. national.”² Thus, in practice, the U.S. government defines those individuals held by non-state actors, such as terrorist organizations, militant and criminal groups, and pirates, as hostages and those held by state actors as detainees, and in specific cases, known as unlawful or wrongful detainees.³ As mentioned in Bringing Americans Home 2020, this delineation is based on the U.S. government’s approach to handling these different types of cases. In general, unlawful or wrongful detainees require a more focused diplomatic response, whereas resolving hostage cases requires more military, intelligence, and law enforcement focus.⁴

Despite the U.S. government’s delineation between hostage and detainee cases, however, there can be striking similarities between the two. This is especially the case when Americans are being held by countries with which the U.S. government has an adversarial relationship or where bilateral relationships with the United States are strained or virtually non-existent. In these cases, like hostages, some unlawful or wrongful detainees are subjected to similar inhumane treatment: physical, sexual, and psychological abuse or torture, solitary confinement, mock executions, continuous interrogations, poor nutrition, lack of medical treatment, and in some cases, executions.⁵ The experiences these families endure are also very similar—their loved ones are suddenly missing, without contact, and they fear for their loved ones’ safety. Getting their loved ones home is outside their control, requiring them to engage in a long, complicated process to engage with the U.S. government on their loved ones’ behalf and advocate for their release. One interviewee, formerly held by a foreign government, commented that “in a way, wrongful detentions are even more sinister than a terrorist organization hostage-taking because they’re using loopholes of the international justice system to abuse ordinary citizens.”⁶

There are similarities from the U.S. government’s perspective as well. Both hostages and unlawful or wrongful detainees are used in attempts to extract concessions from the U.S. government, or to make the United States look weak and incapable. The U.S. government’s criteria for what makes a case an unlawful or wrongful detention, listed in the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act, signed into law on December 27, 2020, points to this motivation. In language echoing PPD-30’s definition of a hostage, one criteria states a case would be considered an unlawful or wrongful detention if the foreign government was holding the American “solely or substantially to influence United States Government policy or to secure economic or political concessions from the United States Government.”⁷ In addition, when foreign states hold U.S. citizens captive, they, like terrorist groups, can use the detentions to constrain the options the United States has in acting against the state holding them. The continued imprisonment of U.S. citizens can be used to provide a “potential source of leverage in broader political disputes.”⁸

Despite the similarities, however, definitional differences between hostages and detainees result in significant differences in the treatment of these cases within the U.S. government. First, the terms hostage and detainee can have implications for the attention that the cases receive and the priority that is placed on their resolution. Individuals held hostage, in common language, are perceived as having done nothing wrong and are being held against their will. Those who have been detained, on the other hand, may be seen as having committed some infraction. In fact, as it is currently employed, the term unjust or unlawful detainee is exceptionally broad in scope. It encompasses cases where Americans are effectively the victims of hostage-taking by state actors and those who committed crimes abroad, but whose charging, trials, or sentencing have lacked due process. These latter cases impact the perception of the term detainee and, despite more extreme cases having such close similarities with hostage-takings, they often fail to receive the same levels of attention and treatment.

These definitional differences also shape the support that the victims of these state hostage-taking cases and their families receive. Hostage families, for instance, are able to receive support from the HRFC for a variety of issues through the Family Engagement Coordinator. While the SPEHA’s office is creating a similar position, unlawful or wrongful detainees generally do not receive the same level of support. In addition, American hostages who have returned home also receive reintegration support consisting of medical treatment, psychological, physical, and financial support. Despite the similarities between the experiences of these individuals and unlawful and wrongful detainees who are effectively held hostage by state actors described above, the support that hostages receive upon their return home extends beyond the support provided to these unlawful or wrongful detainees.

In instances where unlawful detainee cases have more similarities with hostage-takings, the disparities between the treatment of hostages and detainees are in stark contrast. Where adversarial governments hold U.S. citizens against their will on trumped up charges in order to put pressure on the U.S. government, they and their families should be entitled to the same support as those held hostage by terrorist groups. There are, of course, difficulties in distinguishing between those cases where individuals are being held for coercive purposes and those where U.S. citizens have broken the laws of foreign countries, but some mechanism must be developed to elevate the support received by these state-held hostages.

Hostage-taking events are, in general, exceptionally difficult to resolve. This is especially true when Americans have been kidnapped and are being held by terrorist groups. Such groups hold U.S. citizens as a means to seek some concessions and/or for their propaganda value, making releases difficult to secure. In addition, when Americans are kidnapped, they are often kept in secure, remote locations, limiting a hostage’s ability to escape. This, then, leaves the rescue of a hostage as one of the last viable options to secure the safe recovery of U.S. citizens held abroad. Hostage rescue operations conducted by U.S. Special Operations Forces (SOF), however, are complicated and risky and, in order to conduct them, they require both high levels of approval within the U.S. government and a considerable amount of detailed, timely intelligence.⁹

The complexity and difficulty of planning hostage rescues makes them, in the words of a long-time commander of SOF forces interviewed for this report, “high-risk ventures.”¹⁰ The risk of a hostage dying during the rescue attempt, either from being caught in the crossfire¹¹ or being murdered by the kidnappers,¹² is significant, as is the risk of the death of one or more rescuers.¹³ In a recent study examining hostage rescue attempts, Think Twice: Deterring Transnational Kidnapping through Rescue, Peter Dyrud highlighted the risky nature of these operations, concluding through his data collection that 19.7 percent of “forcible hostage rescues” resulted in either a hostage’s death or the death of a member of the rescue force.¹⁴ In 18.2 percent of the cases he examined, Dyrud notes, it was a hostage that was among those killed during an operation. In a report by the Combating Terrorism Center at West Point, Held Hostage: Analyses of Kidnapping Across Time and Among Jihadist Organizations, Seth Loertscher and Daniel Milton argue that the recovery of hostages from jihadist terrorist groups were dangerous propositions. They found that during attempts to rescue Westerners held by jihadist groups, hostages were four times more likely to be killed than during rescue attempts for other militant groups.¹⁵ Dyrud’s work focused on hostage rescue operations as the unit of analysis, and Loertscher and Milton used individual hostages as theirs. In addition, New America’s 2017 study, To Pay Ransom or Not Pay Ransom: An Examination of Western Hostage Policies, Christopher Mellon, Peter Bergen, and David Sterman also concluded that attempts to rescue hostages by jihadists resulted in deaths of hostages 20 percent of the time.¹⁶ Each of these studies point to the same conclusion—hostage rescue operations are dangerous, difficult, and risky.

The risk in hostage rescue operations comes from the unique mission of preserving the life of the hostage while, at the same time, eliminating the threat from the terrorists holding them. This often requires military forces to operate deep inside remote territory potentially controlled by terrorist groups, doing so while able to achieve surprise, and securing a hostage likely closely guarded by the group. These operations place both the hostages themselves and the military forces at risk. One senior military officer interviewed with extensive SOF experience commented that the number one priority, from a military perspective, in conducting a hostage rescue operation is evaluating the “risk to the hostage and risk to the force.”¹⁷ The officer went on to describe the significant investment in time and effort the U.S. military makes to evaluate this risk, as well as gathering intelligence and assessing the qualifications of any indigenous forces in the operation—both of which also impact the assessment of risk.¹⁸ Another senior military commander interviewed for this report highlighted the role of this risk assessment in securing the approvals within the U.S. government needed to authorize such operations. “Acting immediately after a hostage is taken is the best chance to getting them back,” they noted, that in order to do that the “risk assessment is highly important.”¹⁹

An important part of assessing this risk is the development of intelligence. Intelligence collection, however, must go beyond simply establishing which groups are holding Americans captive to include where and when a hostage will be in a particular location as well as, ideally, what type of force is guarding them. This type of information becomes the key to the development and authorization of a hostage rescue operation, as well as the evaluation of the risk to the hostage, the tactical risk to the rescue force, and the overall strategic risk within the region.²⁰ “Once you have actionable intelligence,” said a senior U.S. Army commander, “you can then conduct your risk assessment.”²¹ “Only after corroboration of intelligence and evaluation of the risks,” they continued, “can a hostage rescue operation take place.”²²

The development of timely, accurate intelligence is important as well, not just for the military’s ability to assess risk, but for the overall success of the operation. Without the information to place a hostage at a precise location and time, the odds that any hostage rescue operation will ultimately succeed in freeing the hostage plummet dramatically.²³ Thus, corroborating intelligence and building confidence in the information received is an important aspect to gathering intelligence. This may be a place where increased connections between families and the government would prove helpful. In some cases, family members of hostages or third-party intermediaries believe that they have pertinent information regarding their case that may help point to the location of their loved one. Such information, one senior official commented, would be helpful if it could be confirmed. “When [we] get a piece of intelligence, we try to corroborate things,” they commented. “It’s not a function of not believing [the source], it’s about improving confidence in what we’re seeing and understanding on the ground.”²⁴ While neither senior military officer interviewed said they knew of their commands ever receiving information from family members regarding a hostage case, one senior military officer believed that this was an area where the HRFC and Hostage Response Group could play an important role by sharing information received by families with the military.²⁵

During interviews for JWFLF’s 2019 Bringing Americans Home report, for instance, pre-PPD-30 family members shared that they had information regarding the exact location of where their loved ones were being held captive. They believed, however, that the information that they shared with the U.S. government was not being disseminated across the interagency.²⁶ It is important to note that during these pre-PPD-30 cases, the HRFC was not in existence, yet this remains an example of both the importance of interagency coordination and why collaboration with families in sharing information is vital to hostage recovery.

There are some concerns that the U.S. government broadly, however, has not been prioritizing the recovery of Americans held abroad and the development of hostage recovery operations, especially in cases where U.S. citizens have been held for a long length of time. According to one former senior U.S. official, when cases go dormant it becomes a defining moment for U.S. efforts.²⁷ In these cases, they shared hostage cases require more dedicated assets to develop the intelligence needed to support a hostage rescue. In addition, according to this official, current intelligence collection has relied on the employment of drones and aerial footage. The United States, however, needs to place more emphasis on mapping out the networks. Otherwise, additional technical assets will have a limited impact on intelligence collection.²⁸ In addition, they shared, the Department of Defense and intelligence community should dedicate its “HUMINT [human intelligence] and deception apparatus” to generating the intelligence needed to “stimulate the network” and find American hostages. From their perspective, however, this was largely not a priority for the Department of Defense which is instead largely focused on realigning assets away from counterterrorism and toward “great power competition.”²⁹

It is important to note, however, that the decision to initiate a hostage recovery operation or develop the intelligence to support one is not a unilateral military decision. Oftentimes, as one senior officer commented, approval for these operations is held at the highest levels of government.³⁰ Presidential administrations have to weigh the risks to hostages and U.S. military forces described above, as well as the broader strategic implications of these operations, the risk to hostages of allied countries being held by the terrorist group, the risk to any and all hostages in the event of a failed operation that leaves the hostage in the control of the terrorist group, as well as the fallout from authorizing an operation that results in the death of a U.S. citizen. Presidential administrations are also responsible for providing guidance to the interagency and, according to one former senior U.S. official, for placing emphasis – or not – on the development of hostage rescue operations.³¹ This is especially important in a world of competing demands for intelligence collection and national security focus. These considerations and tensions highlight the need for hostage recovery to be a priority within presidential administrations.³² In order to provide the U.S. government the confidence it needs to act and to encourage its departments and agencies to prioritize hostage rescue, cabinet-level officials and individuals within the National Security Council need to emphasize the importance of hostage recovery and to direct the interagency to task the resources required to develop the intelligence needed to create viable plans to conduct hostage rescue operations.³³

One concern raised, both specifically and tangentially, by families, advocates, and U.S. government officials is the HRFC’s ability to carry out its role of coordinating the government’s efforts and ensuring that the “information, expertise, and resources” from across the interagency are brought to bear to “develop individualized strategies to secure the safe recovery of U.S. nationals held hostage abroad.”³⁴ As discussed in the introduction to this report, one of the challenges that the U.S. faced in developing effective hostage policy was the lack of coordination of U.S. government activity as it related to hostage-taking incidents. In the 2015 review of Hostage Policy, the NCTC review team “recognized significant challenges in coordinating day-to-day operational activities both during and after a hostage incident.”³⁵ Addressing the issue in more detail, the authors commented:

Generally, departments and agencies individually determine courses of action based on their respective missions, authorities, and capabilities as opposed to doing so collectively. Existing policies and statutes have created conflicting “lead” roles for departments and agencies, making it unclear which entity is ultimately responsible for coordinating and directing activities at the operational level.³⁶

In order to fill this gap, PPD-30 and EO 13698 directed the creation of the HRFC. The HRFC was given, in addition to its family engagement responsibilities, the task of being “the Government’s primary interagency body to drive and coordinate activities at the operational level for all hostage-takings of U.S. Nationals abroad.”³⁷ PPD-30’s original vision of the HRFC contains two important points.

First, the HRFC was designed to function primarily as a dedicated interagency organization outside of other departments and agencies. While the HRFC is currently housed within FBI headquarters, it was originally conceived as operating independently. The HRFC’s original placement at FBI headquarters stemmed, according to former U.S. government officials, largely from the Bureau’s previous experience with investigating hostage-taking incidents, as well as the FBI’s existing infrastructure capable of providing the HRFC access to the Sensitive Compartmentalized Information Facility (SCIF) space and classified communications required to coordinate hostage recovery operations.³⁸ Other organizations, such as the Department of State, lacked this infrastructure, and the establishment of an independent headquarters would have taken years to establish. While the placement within FBI headquarters was expeditious, it has also blurred the independence of the organization, leading some to refer to it as the “bureau’s hostage recovery cell,”³⁹ or “an FBI-led hostage recovery fusion cell.”⁴⁰

The second key point, raised by PPD-30, was the expectation that the HRFC would “coordinate diplomatic, intelligence, law enforcement, and military components of hostage recovery efforts.”⁴¹ Specifically, the HRFC’s Director was envisioned as serving “as the federal government’s primary operational coordinator for responding to overseas hostage-takings.”⁴² There are concerns, however, that both the HRFC’s placement at the FBI and the status of the HRFC director creates challenges for his or her ability to effectively coordinate the U.S. government’s hostage related activities.

Since the inception of the HRFC, the director of the HRFC has served as a section chief, one of the lower levels of FBI management. In interviews for this report, the HRFC’s reporting chain was described as running through the assistant director of the Counterterrorism Division and the executive assistant director of the National Security Bureau to the deputy director and director of the FBI.⁴³ This chain of command places the director of the HRFC five steps below the director of the FBI and other principals (See Figure 8). In contrast, the SPEHA’s office was designed to exist only one step below the principal level and the SPEHA, formerly operating as an ambassador, reports directly to the secretary of state. While the Office of the SPEHA and the HRFC coordinate and work closely together and the SPEHA’s standing in the State Department is necessary for his or her diplomatic engagements overseas on behalf of hostages and detainees, this difference in standing within the government clouds clear delineation of responsibility for these cases. As mentioned in the 2020 report’s discussion on the clarity of U.S. government roles, families have, at times, struggled to understand which organization has the lead for their loved one’s case.⁴⁴ Several U.S. government officials interviewed for this report also expressed being confused about the ownership of hostage cases.⁴⁵

In addition, the HRFC director’s standing impacts their ability to coordinate hostage recovery across the interagency. The director is, according to an interview with a senior U.S. government official, unable to direct the activities of other departments and agencies. “Ultimately, [the Director] can tell these agencies ‘you should,’ but [they] don’t have the [authority] to say, ‘you will.’”⁴⁶ According to a senior Department of Defense official, this has created issues for the clarity of the HRFC’s role, particularly given the important role that the department plays in intelligence gathering and conducting hostage rescues. “Who is the main entity who has the lead [in hostage-taking]?” they asked rhetorically during the interview.⁴⁷ “Is it the FBI? Is it DoD? There is no…conclusion about this [within the Department of Defense].” This “disaggregation and diffusion of responsibility between the DoD and FBI” allows either agency to “do whatever they want” and to do “as much or little as they want,” they continued in words strikingly similar to the 2015 NCTC review team’s finding quoted at the beginning of this discussion.

Coordinating U.S. governmental action is not a new issue. The U.S. government has long struggled to coordinate activities conducted across the interagency, especially in the face of issues with emerging importance. For instance, when confronted with terrorism’s rising importance on the international stage as a result of the hostage-taking at the 1972 Munich Olympics, the Nixon administration’s initial response was to establish a coordinating body within the White House—the Cabinet Committee on Terrorism⁴⁸—the action arm of which was a working group led by Ambassador Armin H. Meyer, who was also named as a special assistant to the secretary ofsState, coordinator for combatting terrorism,⁴⁹ and the working group led by Meyer.⁵⁰ The language creating the committee was forceful. In order to assist the U.S. government to move vigorously against terrorism,⁵¹ the committee would determine “the most effective means by which to prevent terrorism here and abroad” and would also “take the lead in establishing procedures to ensure that our government can take appropriate action in response to acts of terrorism swiftly and effectively.”⁵² In reality, however, Ambassador Meyer found himself to be “a general without an Army,” whose mandate was unclear, and who was unable to advance the policies he was directed to enforce.⁵³

This is not a problem solely of the past, however. In the wake of the 9/11 attacks, as the need to secure the U.S. homeland came to the forefront, President Bush also initially attempted to respond by creating a cabinet-level coordinating body within the White House—the Office of Homeland Security. Led by former Gov. Tom Ridge (R-Pa.), the Office was given the mandate to “coordinate the executive branch’s efforts to detect, prepare for, prevent, protect against, respond to, and recover from terrorist attacks within the United States.”⁵⁴ Like Meyer before him, however, Ridge found himself charged with coordinating interagency responses without the power to direct. He could encourage agencies to cooperate with one another, but he could not force any department or agency to do so. “He lacked,” as Dr. Donald Kettle writes in his book on the challenges of modern governance, “any leverage but the power of persuasion.”⁵⁵, ⁵⁶

As these examples show, the challenges of coordinating government actions are not unique to a particular time period or issue. In fact, when the U.S. government raises up an individual and charges them with “coordinating governmental policy on important problems,” Dr. Kettle writes, they face challenges regardless of what the issue is they have been tasked with correcting. These challenges are often the same: “they start their jobs with strong presidential support, high-level public attention, and a broad mandate. But they typically find… that without power over agency budgets and the authority to issue orders to federal employees, they must rely on the job’s bully pulpit.”⁵⁷

The HRFC represents, then, the adoption of a standard U.S. government tactic to address problems—that of creating a coordinating body, this time applied to hostage-taking. In some important ways the HRFC is structurally different from Ambassador Meyer’s working group or Governor Ridge’s office. It has received resourcing, staffing and has been legally codified through the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act, all giving a basic level of permanence. At the same time, the HRFC’s mandate is to coordinate without controlling and it faces the same challenges encountered by Ambassador Meyer and Gov. Richardson (D-N.M.). Given a broad mandate to coordinate hostage recoveries, strong support from then-President Obama, and a public and interagency still traumatized by the ISIS hostage-takings, the HRFC’s influence, regardless if the director’s rank was higher. Five years after its establishment, two presidential administrations removed, and faced with a public and interagency focused on a number of other pressing issues and threats, the HRFC may find it difficult to encourage the cooperation of the interagency and make hostage recovery a priority. This is complicated by the organization’s placement within the FBI and the status of the director. If, a senior official is being obstructionist and unwilling to commit resources to generate intelligence needed to recover U.S. hostages,⁵⁸ the HRFC’s director would require more standing to influence combatant commanders. Understanding the limits of the coordinating body approach, PPD-30 does provide for the Hostage Response Group, a sub-deputies committee at the National Security Council to be the arbiter of disputes between agencies. This approach, however, may be limited in practice by the priority which the National Security Council places on the recovery of hostages, as multiple crises and national concerns vie for attention even within the National Security Council’s counterterrorism directorate.

The United States government will not and should not, as was done with the Office of Homeland Security, respond to the challenges of hostage-taking by reorganizing the government to place all intelligence assets and military units with hostage-taking responsibilities under a single new department. Coordinating government action is likely going to remain the HRFC’s mandate. If that is the case, however, U.S. government officials interviewed for this report commented that the HRFC should be given “more permanence and a little more independence.”⁵⁹ One individual, a senior official, commented that, while the 2015 reorganization of the hostage recovery enterprise was important, “it’s time to mature the enterprise.”⁶⁰ From their perspective, the enterprise is overly bureaucratized and is currently stuck and that “the system needs to be updated.” In their opinion, hostage recovery was not receiving the appropriate prioritization from agencies like the Department of Defense and Central Intelligence Agency (CIA). In order to raise the prominence of the HRFC, they recommended, it should be “pulled out of the FBI.”⁶¹ Another senior U.S. government official shared this perspective during the interview process. The HRFC, in their opinion, has “a unique interagency makeup and [the Director is] often dealing with presidential or political appointees” as well as “one-, two-, and three-star Generals within the DoD.”⁶² In order to encourage coordination and prioritization of hostage cases, the HRFC director’s position should “be [at] a higher level,” either independent from the FBI or answering to the executive assistant director of the national security branch.⁶³ Both individuals were concerned that there was limited appetite within the relevant departments and agencies to make these changes on their own and felt that any changes to the HRFC’s current status would require congressional legislation.