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Where Exactly Is the Rule That Says Governments Can't Negotiate with Terrorists?

Though there's a general stigma against governments paying out ransoms to groups like the Islamic State, it's more of a fuzzy line than a hard and fast rule.
From the Islamic State video

According to a video the Islamic State uploaded a week ago, the Japanese government had until 12:50 AM EST on Friday morning EST to pay $200 million or two Japanese citizens would die. When that deadline passed, members of the Islamic State say they executed one of them, Haruna Yukawa, and that if their demands aren't met, they'll execute the other, the journalist Kenji Goto.

But instead of their outlandish $200 million from Japan, the terrorists now want Jordan to release Sajida Mubarak Atrous al-Rishawi, a failed suicide bomber currently being held on terrorism charges. They assume, perhaps rightly, that Japan will talk to the US, which will in turn talk to Jordan, and that some kind of arrangement can be reached.


Prime Minister Shinzo Abe didn't pay the ransom—in doing so, he honored a pledge the G8 countries made in 2013 not to negotiate with terrorists—but IS apparently thinks that a prisoner exchange is more palatable to Japan than a straight-up ransom payment.

They may be right about that—though there's a general stigma against governments "negotiating with terrorists," it's more of a fuzzy line than a hard and fast rule.

The logic to not giving in to terrorists, even when that could result in the deaths of hostages, was spelled out in a 2012 speech by David S. Cohen, who is now the Treasury Department's Under Secretary for Terrorism and Finance Intelligence:

Ransom payments lead to future kidnappings, and future kidnappings lead to additional ransom payments. And it all builds the capacity of terrorist organizations to conduct attacks. We must find a way to break the cycle. Refusing to pay ransoms or to make other concessions to terrorists is, clearly, the surest way to break the cycle, because if kidnappers consistently fail to get what they want, they will have a strong incentive to stop taking hostages in the first place.

This defiance in the face of threats is an old idea, and it's included in some of America's founding mythology—in 1801 Thomas Jefferson famously refused to negotiate with the Barbary Pirates. But for most of American history, negotiations with terrorists were handled on a case-by-case basis.


When the shit hit the fan, presidents like Nixon were known to dispense ransoms to the tune of $2 million to airline hijackers. Then there was Carter's unfreezing of $8 billion in Iranian assets during the Iranian Hostage Crisis. Even during this time, openly paying ransoms was shameful enough to be treated in a hush-hush manner. Fred Burton, Vice President of Intelligence at Stratfor and a former State Department employee, told me he wasn't in the room when money was exchanged, but it was obvious when a payment had been delivered.

"We would always deploy ahead of time, in anticipation of a hostage being released," he told me. "I would wonder, as we're flying over the North Atlantic on a special air mission out of Andrews Air Force Base, What the heck's going on? How would anybody know these hostages are coming out? But we would get to Germany, and the next thing you know, a hostage would be released in Lebanon."

The "we don't negotiate with terrorists" thing wasn't crystallized until 1985, when President Ronald Reagan gave a speech about the hijacking of TWA Flight 847 by members of Hezbollah and the Islamic Jihad. Just like IS did this week, the groups demanded the release of prisoners, not money. In response, Reagan said the following:

America will never make concessions to terrorists—to do so would only invite more terrorism—nor will we ask nor pressure any other government to do so. Once we head down that path there would be no end to it, no end to the suffering of innocent people, no end to the bloody ransom all civilized nations must pay.


Never mind that Reagan's administration would go on to trade arms for hostages with Iran, this speech was still more or less the genesis of America's modern policy against paying ransoms.

The following year, the vice president's report on counterterrorism made the stance official with the line, "The United States has a clear policy of no concessions to terrorists as the best way to protect the greatest number of people." In 1995, a similar statement showed up in a State Department fact sheet on terrorism. Every president since Reagan has kept up the policy, at least on paper.

But while that's a nice tough-on-terror policy, it's not exactly ironclad. "The State Department has a lot of policies, and policy is not law," Burton told me. "This is one of those Washington soundbites that really don't have a lot of teeth at the end of the day."

The Bowe Bergdahl and Peter Moore prisoner exchanges are public examples that show that the US and the UK will occasionally give the bad guys what they want if the price is right.

But the US does a better job of keeping negotiations under wraps than Austria, France, Germany, Italy, and Switzerland, to name a few countries who are freer with ransom payments than the US or the UK. They have collectively paid tens of millions in ransoms over the past few years, according to the New York Times.

Indeed, hostage-taking remains a profitable business. In his speech, Cohen said that $120 million was paid to terrorists between 2004 and 2012. That's in the same ballpark as the New York Times' estimate of $125 million in ransoms between 2008 and 2014—and more than half of that amount, the paper reported, was paid in the last year. A lot of that is going to al Qaeda, which has made taking Europeans hostages a core part of its business.


The Islamic State, on the other hand, is relatively new at this whole demanding ransom thing. This was the first time the group openly asked for money and it hasn't really worked out, though it has quietly made money from ransom payments in the past.

It's worth noting that there is a case to be made for trading money for hostages. Just look at the scene from about a week ago after two Italian aid workers were released after a multimillion dollar ransom was paid. It doesn't look like an evildoer using government money to stock up on RPGs, it's a family reunion:

When countries like Italy pay ransoms, they do it not by earmarking some government money as a ransom fund, but by pulling shenanigans. In 2003, Germany paid a ransom when a group of Europeans were being held in Mali, but the government dressed it up as aid money for the starving country. Officially, no ransom was ever paid. Similarly, when the Islamic State freed 49 Turkish hostages last year, officials stated that no ransom was paid. IS must have just had a change of heart.

Even the US practices this brand of under-the-table ransom payments according to Burton. He points to the example of Robert Levinson, the former FBI agent who disappeared in Iran in 2007 and is presumably still being held captive by the government. Levinson is a bargaining chip Iran hasn't cashed in yet. "Whenever we're sitting down with Iran over nuclear negotiations, somebody is going to bring up Levinson," Burton told me. "It would not be as blunt as you and I are talking. It would be, 'We would really appreciate the Islamic Republic of Iran doing everything in their power to help us resolve the unfortunate circumstance surrounding the hostage-taking of Robert Levinson.'"


Then there's the State Department's Rewards for Justice Program, which can't be documented as having generated ransom payments, and that's the point. The program hands out rewards for what is called the "favorable resolution" of a situation involving terrorism. According to Burton, however, things can get pretty murky when it comes to who gets what money.

"At it's face value [the reward is] for the arrest for prosecution of a terrorist that's engaged in terrorist activity to include hostage-taking," he told me. "But 'favorable resolution' is pretty much whatever the spies sitting around the table decide it is on that day. So if you can pay an informant to help you get a hostage out, that's a favorable resolution. Now, did you directly pay Hezbollah to get the hostage out? Well, nobody's down in the weeds trying to determine where the money went."

Whatever tactics governments employ, it seems that nothing is going to dissuade criminals and terrorists from holding hostages for ransoms. "In the 35 years I've been in this business, hostage-taking hasn't stopped," Burton said.

Even though it's hard to point to hard data, it's likely that more widespread refusal to pay ransoms really would strengthen the policy and reduce the number of hostage situations, just like Cohen and others claim. Still, it's obviously tough to demand that people put their loved ones on the line like that. The US and UK governments make speeches urging allies to stop paying ransoms from time to time and try to keep insurers from providing kidnap and ransom insurance, and even threaten the families of hostages with charges of funding terrorism if they pay up. James Foley's mother Diane told ABC News that a member of Obama's National Security Council told her that even though IS hadn't publicly demanded money, that she might face "criminal charges" if she sent money in exchange for her son's life.

The threat was likely a bluff. Burton is "not aware of anybody ever being prosecuted for this," and points out that to convict anyone of supporting terrorism, the Department of Justice would have to put the family of a hostage on trial, which is obviously not a very appealing prospect.

Instead of paying for Foley's release, the US reportedly sent in Special Operations forces to take out his kidnappers, but the rescue mission failed, and the hostage was beheaded in August. Last month, a South African named Pierre Korkie—who was supposed to be in the process of being freed after his family reportedly negotiated a ransom deal—got killed when the American military botched an extraction attempt. These fiascos aren't a good way to advertise the no-negotiating policy.

Nonetheless, the Japanese government seems to be following it, at least for now. Possibly as a result, Haruna Yukawa is dead. As for Kenji Goto, the latest IS video statement gave no timeline for his execution, but according to CNN analysts, Islamic State hostage-takers only keep someone alive if they feel like they're going to get something out of it.

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