There’s a cold logic in refusing to pay ransom to terrorists: Holding a firm line may well serve as a deterrent to further acts of terror. Destroy the pecuniary incentive for terrorists to kidnap folks, and, the theory goes, there will be fewer kidnappings. I wonder about that logic when it comes to the Islamic State of Iraq and Syria, (ISIS).
But when that logic results in the public beheading of a hostage, there’s good reason to rethink such a hardline. But for this policy, James Foley, Steven Sotloff and David Cawthorne Haines might be alive today, and we might not be headed into yet another conflict without end in the Middle East.
As a matter of law and policy, the United States refuses to pay ransom, or to negotiate the payment of ransoms, to those who kidnap Americans. What’s more, federal officials vow prosecution of Americans who pay ransom to terrorists. The result is that families with loved ones held by such groups as ISIS are left in impotent rage: Try to save their loved one, but risk prosecution by their government for doing so.
The conflict between obedience to the state and fealty to a loved one is ancient — Sophocles nailed it in the fifth century before common era in the Anitgone.
Thebes was torn by civil war. Polyneices, a rebel, was killed in the conflict. His family sought to bury him, to prevent what was regarded as the greatest shame — leaving the dead unburied. But Creon, king of Thebes, forbade it. Polyneices must be punished: “There is nothing worse than disobedience to authority,” he told the family, even as Polyneices’s sister planned to break the law.
Antigone, the sister of the slain rebel, thought otherwise: “He has no right to keep me from my own,” she complained of King Creon. She buried her dead brother in defiance of the king, and she is herself put to death for defying the king. The play remains a class portrayal of the claims of natural law versus the laws of the state.
Diane Foley, the mother of slain American journalist James Foley, is cast as Antigone today. Yet, unlike Antigone, she obeyed the state; she now lives, unlike Anitgone, heartbroken.
Ms. Foley has good reason the United States government did not do enough to save her son from beheading. When the family received an email in November 2013 demanding a ransom in exchange for her son, the family turned the matter over the Federal Bureau of Investigation. The email was one of many sent to families of Western hostages in Europe and North America. European governments negotiated cash payments for the release of their hostages. The United States and Great Britain refused to do so: As of this writing, two Americans, Mr. Foley and Steven Sotloff, and one British citizen, David Cawthorne Haines, have been beheaded. Two other Americans and two British citizens remain under ISIS control.
Apparently, neither the Foley family, nor the families of the other Americans held hostage by ISIS, were put in touch with one another by federal officials. And word that European governments had paid an estimated two million Euros per hostage was kept from them as well. They were asked simply to trust that American officials did all that was required to secure the liberty of their loved ones.
GlobalPost, the Boston-based online international news organization that employed Mr. Foley, did try to raise funds late in his captivity. The Foley family informed the FBI, which then relented and said the family might not be prosecuted if a ransom were paid. However, the feds advised to delay, to negotiate, to keep communications alive. “Are you sure,” Ms. Foley reportedly told the feds. “I think we are just making them angry.”
The Foleys are now working to form an organization to advise other families about what to do when similar disaster strikes them. Among the tools the group needs to place in its toolbox is an understanding of the defense of necessity.
The law permits a person to defend against charges that they broke the law on grounds that their prohibited conduct was necessary in order to prevent some greater harm. This defense might justify their illegal course of action. It’s a tricky and rarely used doctrine. To succeed, a defendant must show that his conduct was required in order to prevent some greater harm.
In its classic form, the defense requires proof of four things: First, the defendant must show he did not the very danger he sought to avoid by breaking the law. Next, a defendant must show he stopped engaging in the prohibited conduct as soon as the danger passed. In addition, a defendant must show he had no reasonable alternative but to break the law. Finally, and the trickiest part in the case of the kidnap-ransom scenario, he must show that the danger he sought to avoid is greater than the harm his unlawful conduct posed.
A classic example of the defense arose in New Hampshire a century ago. A man named Samuel Jackson kept his daughter out of school in violation of state law. Why? She suffered a serious medical condition requiring constant monitoring. He feared she would not get the care she required at school, so he kept her home. His illegal act in keeping her from school was, he argued, necessary to keep her alive.
Would such a defense succeed if a kidnap victim paid a terrorist for the return of a loved one?
Federal law prohibits the knowing provision of financial support, even indirect financial support, to known terrorists organizations. By definition, sending money constitutes a violation of the law. But what if it is done to save the life of a loved one — isn’t that preventing a greater harm, isn’t that necessary?
It certainly is insofar as the family is concerned, but what about the greater public good? The government would have a powerful argument that paying terrorists did not prevent a greater harm, quite the contrary, it would argue, paying terrorists only emboldens them.
Sophocles was a tragedian. We’re living now in tragic times. A defense of necessity to save a loved one from public beheading would have confounded even Sophocles. The issues raised remain confounding today.