O Say Can You Free Me?

North Waziristan is not where you want to spend July 4. When you hear what sounds like fireworks, it’s more likely coming from an unmanned drone than your neighbor’s kids. Sadly, this is how some Americans are spending Independence Day this year.

Sgt. Bowe Bergdahl is certainly happy not to be one of them. He will celebrate his first July 4 outside captivity since 2008, presumably with his family if he is reunited with them soon. Whatever one’s feelings about the exchange of five Taliban prisoners for a soldier who may or may not have deserted, it is hard to argue that after five years holed up in a cage in Waziristan at the hands of Taliban militants Bergdahl is not deserving of his newfound freedom. But there are dozens of other Americans who won’t make it home for barbecues and fireworks this year — and likely won’t anytime soon. Around the world, American hostages, some kidnapped during government service, are caught in a hostage no man’s land. And there are very few options to get them back.

Efforts to free hostages — whether soldiers, diplomats, contractors, journalists, aid workers, or tourists — raise questions about how the rules of warfare apply in an era when the lines of the battlefield are blurred, civilians are often on the wrong side, and the hostage-taker is often a nonstate actor. There are very real problems that come with cutting deals with hostage-takers, namely encouraging further kidnappings for ransom and legitimizing the practice. But the edict that the United States "doesn’t negotiate with terrorists" has been at best followed loosely by U.S. administrations for decades. (See the Iran hostage crisis, the Iran-Contra scandal, and the 2001 negotiations by George W. Bush’s administration to free two American missionaries held by the militant group Abu Sayyaf in the Philippines.) This selective bending of the rules can often seem arbitrary, especially to the families and friends of those being held. Clearly, a more coherent strategy is overdue, especially given the risks civilians face in the complex conflicts of the 21st century.

Given that the United States designated the Taliban a terrorist group in 2003, there is an argument to be made — one that has been made loudly by President Barack Obama’s critics — that the exchange for Bergdahl could be considered a deal with a terrorist group, with all the potential baggage that would entail. But because Bergdahl was picked up on the battlefield while acting as a combatant, this argument doesn’t really have legs; in the context of the war in Afghanistan, the Taliban is more of an enemy state, making Bergdahl a prisoner of war. Nevertheless, the Bergdahl deal is a reminder that the distinctions that dictate such negotiations are often extremely vague and that in a war against amorphous adversaries living in states with little real governance, hard-and-fast rules rarely apply.

Among those on the blurrier side of that spectrum is Warren Weinstein, a U.S. Agency for International Development (USAID) contractor who served for decades as an employee of the development agency before moving to a private company. Weinstein celebrates his 73rd birthday July 3 in the same place he spent his 72nd and 71st: As al Qaeda’s captive, reportedly in Pakistan’s North Waziristan region. He was kidnapped from his home in Lahore in August 2011. Weinstein’s case has received some press, particularly in the weeks since Bergdahl’s release and in response to what appears to be his deteriorating health. But the options available to the Obama administration to negotiate his release remain shamefully few. As a U.S. government official told me, "The United States continues to work with Pakistani authorities to try to secure his release. We remain in contact with Weinstein’s family in the United States and are providing all appropriate consular assistance." The truth, though, is that his case is most likely at a standstill.

There is little doubt that fulfilling Weinstein’s captors’ demands — an end to all drone strikes and freedom for all prisoners in the Guantánamo Bay prison — is a non-starter. So is the type of exchange brokered for Bergdahl. Weinstein is not a U.S. soldier, and the outcry that followed the Bergdahl trade would pale in comparison to what would happen if Guantánamo detainees were traded for a civilian, especially one who does not work directly for the U.S. government. But that does not mean all avenues are closed. The Pakistani military could attempt to rescue Weinstein and other hostages in North Waziristan, including several high-profile Pakistanis, perhaps even with U.S. assistance. There are also discussions that could be held by the United States or other actors in concert with or separate from the Pakistani government. If the United States can negotiate with the Taliban for a prisoner of war, it seems possible to at least talk to al Qaeda about the conditions for the release of a prisoner who was working to help prevent future wars through economic development.

Treating civilians as if they were soldiers is clearly a bridge too far, and not only because it’s politically infeasible for Obama. Prisoners of war have long been considered a different type of hostage, both under U.S. and international law, and they should rightly be retrieved by their nation at almost any cost. But there is always much gray area to explore. Many in the media, including a number of veterans, have argued that the circumstances of Bergdahl’s capture meant that any efforts to secure his release were more than he really deserved. And whether or not Bergdahl was a deserter, it is clear that he left his base willingly and had grave doubts about his mission in Afghanistan. Weinstein, on the other hand, had gone to Pakistan on his own volition to fulfill a development mission. As a contractor, Weinstein was separated by only one degree from the U.S. government, as are many who conduct U.S. foreign policy abroad today, especially in dangerous places where organizations like USAID would rather send contractors than their own personnel. Contractors shouldn’t be treated like soldiers, but they are often sent quite far into harm’s way.

It’s unclear how much the intent of the hostage, his or her ties to a particular government, and notoriety and wealth affect the efforts to gain his or her release. History gives conflicting examples: Two journalists who wandered into North Korea were freed through the efforts of former U.S. President Bill Clinton; two hikers who wandered across the Iranian border spent over two years in jail before being released on bail, allegedly paid by the sultan of Oman (a third hiker had been released a year earlier); Robert Levinson, a former FBI agent captured in Iran and later alleged to have been working for the CIA, remains in an unknown location; and two aid workers kidnapped in Somalia, one American and the other Danish, were rescued by Navy SEALs in a daring airborne raid. There seems to be little rhyme or reason to who makes it out and how.

More important than any other factor are the larger circumstances of these hostages’ kidnappings and captivities, specifically the relationship between the U.S. government and the country either holding the hostage or in which he or she is being held. In the case of the Somalia raid, for example, the lack of government control over the vast majority of the country made conducting an operation on Somali soil politically feasible. Pakistan, on the other hand, is so sensitive to foreign military action on its soil that even the raid against Osama bin Laden was met with resistance and outrage in that country’s press. But outside these political realities, there still seem to be some significant disparities in how hostage situations pan out. In some cases, hostages’ families may even be forced to beg and borrow from friends and benefactors to try to meet captors’ demands.

Now that the integration of military and civilian missions has become the norm, especially with a counterinsurgency strategy based on economic development, civilians have often found themselves at as great a risk as many of their military counterparts, often without the same level of training or protection. A civilian hostage will likely never be treated the same as a captured soldier, even though in the most recent conflicts they are acting more like soldiers in the field. Particularly as the United States and its allies draw back from Afghanistan, it may be time to consider how the United States and other countries can better address the inherent challenges of civilian hostage situations, in addition to making sure we leave no soldier behind on the battlefield.