The president’s tweets tell a misleading story. As my research shows, the U.S. policy on paying ransoms is more complicated in practice than in theory.
North Korea demanded money to release Otto Warmbier
Warmbier was arrested in 2016 for removing a propaganda poster from his hotel. Shortly after being sentenced to 15 years in prison with hard labor, he fell into a mysterious coma.
Though negotiators tried to secure his release during the last year of the Obama administration, U.S. officials did not learn of Warmbier’s condition until June 2017, at which point the Trump administration sent a small delegation — a State Department official and a doctor — to bring the comatose Warmbier home.
New reporting revealed that the North Koreans demanded that the American envoys sign a $2 million invoice for Warmbier’s medical care while in detention, and that Trump instructed the envoy to sign. The administration claims the bill was never paid.
Is this a ransom payment? Yes and no.
Putting aside whether the Trump administration ever paid the $2 million fine, the invoice resembles a ransom demand — an explicit price for freeing a captive. When Trump’s envoy agreed to the conditions of the demand, Warmbier was released into U.S. custody.
At the same time, it may not make sense to classify this payment as a ransom. In a normal kidnapping, the initial ransom demand comes down drastically over a protracted negotiation process with the victim’s family or insurer. The kidnapper then arranges for a secure ransom “drop” — a way to collect the money without revealing his identity or location.
History says that the U.S. (sometimes) pays
As I have written elsewhere, the United States routinely makes and permits concessions to hostage takers, despite presidents’ constant claims to the contrary. From 18th-century ransom payments to the Barbary Pirates to Reagan’s arms-for-hostages deal to recover Americans kidnapped in Lebanon, U.S. presidents have occasionally violated their own pronouncements to make concessions to terrorist hostage-takers.
On the whole, the United States and our partner Britain have affirmed a “no concessions” policy, lobbying other countries to stop financing global terrorism. Yet current U.S. policy only prohibits making concessions to formally designated “foreign terrorist organizations.” There is no formal prohibition against paying foreign governments for Americans held captive, nor is there a prohibition against paying criminal kidnappers, from pirates to cartels.
When a soldier is taken hostage, the United States can secure his release through a prisoner swap. This provision of the Geneva Conventions helps explain the controversial prisoner swap for Sgt. Bowe Bergdahl, who was exchanged for five Taliban prisoners held at Guantanamo. The United States can also negotiate if someone else pays the bill. These third-party intermediaries range from kidnap and ransom insurance providers to other governments making concessions on our behalf.
U.S. policy changed in 2015
After several American journalists and aid workers were kidnapped and brutally beheaded by the Islamic State several years ago, the Obama administration introduced a Presidential Policy Directive on Hostage Recovery Activities that established an interagency Hostage Recovery Fusion Cell and a senior-level presidential envoy for hostage affairs. Sen. Robert Menendez (D-N.J.) and Rep. Ted Deutch (D-Fla.) have since introduced legislation that would codify these positions into law.
The 2015 update also clarified that the U.S. government can communicate directly with kidnappers — including terrorists — in an attempt to recover a hostage, and all but guarantees that no family will be prosecuted for paying ransom for a loved one.
Warmbier was not a hostage, despite what the White House says
When terrorists or criminals capture a foreigner, that person becomes a hostage. But when government actors imprison a foreigner — even if the arrest is arbitrary and illegal — that person becomes a detainee. This is more than a rhetorical distinction; it has legal and practical implications.
Hostages are handled by the Hostage Recovery Fusion Cell, which can facilitate ransom payments to criminal groups, work with third-party intermediaries, or plan rescue missions. Acknowledged detainees, on the other hand, are covered by the State Department’s Bureau of Consular Affairs. When an American is detained in North Korea, Iran or Cuba, the presidential envoy for hostage affairs can help elevate the case to senior diplomatic levels.
There are no limits to what the government can do to get detainees back. Obama made diplomatic concessions to retrieve prisoners from Cuba and Iran, and Trump did the same with prisoners in Egypt and North Korea. By referring to detainees as “hostages,” the White House hamstrings its ability to negotiate their return.
Even the best negotiator in chief can’t bring every American home. Austin Tice — a likely detainee — has been missing in Syria for years. Five Americans are still imprisoned in Iran. It takes patient diplomacy and carrots and sticks to convince a hostile government to give up any leverage. As the United States pursues peace talks with the Taliban, the White House will have to make concessions to secure the release of the remaining hostages in Afghanistan. Ruling out prisoner swaps, foreign aid support, or other concessions will make this harder.
Danielle Gilbert is a PhD candidate in political science at George Washington University, where she is writing her dissertation on the logic of coercive kidnapping.