How Not to Help Americans Captured Abroad

The brutal execution of two American hostages in the last 15 days has forced the country’s attention on the plight of U.S. citizens captured abroad. With the Islamic State (IS) in possession of more American hostages — and over a dozen U.S. citizens still forcibly held from Cuba and Venezuela to Iran and North Korea — a debate on the federal government’s efforts to secure their release is heating up.

Unfortunately, Washington’s latest attempt to aid Americans held in foreign countries will actually harm them. This month, the House will vote on a 2015 appropriations bill containing a provision, already approved by the Senate, called "Assistance for United States Citizens and Nationals Wrongly Detained Abroad" (AFDA). Buried in hundreds of pages of text and likely unread by those voting on it, AFDA is an attempt to centralize control over the detainee process. If ratified, it will sanction the federal government to subordinate some U.S. detainees to the interests of bureaucrats, politicians, and lobbyists, and restrict the efforts of families to lobby for their loved one’s release.

In other words, it would harm the very people it seeks to help.

Sponsored by Sens. Patrick Leahy (D-Vt.) and Barbara Mikulski (D-Md.), AFDA delegates new power to the secretary of state, making him judge and jury in the case of each American detainee. It gives him a list of nine criteria to decide which U.S. citizens have "more likely than not" been wrongly detained abroad; instructs him to submit quarterly reports to Congress determining which detainees are "deserving of enhanced legal and diplomatic support"; and authorizes an official government "resource manual" for families of the wrongly detained.

Of all the federal agencies that shouldn’t be given such power to determine the level of official government support for detainees, it is the State Department. The reason is simple: American detainees are often used as bargaining chips by the foreign governments that hold them, and therefore are a liability for the executive department that manages foreign relations.

For the State Department, stable relations with foreign countries is an end itself. But, as former U.S. Ambassador to Yugoslavia Laurence Silberman observed, this approach often prevails "without sufficient regard to U.S. geopolitical and geostrategic interests." Every president from FDR to George W. Bush bewailed State’s penchant for caution and restraint, which the 2001 bipartisan Hart-Rudman Commission euphemistically called "an ineffective organizational structure in which regional and functional policies do not serve integrated goals."

Hence the absurdity of AFDA’s requirement that the U.S. federal agency most unwilling to upset foreign governments publicly declare whether foreign judicial proceedings are "more likely than not" a farce, dictating legal recourse to the families of detained Americans.

Consider the case of Reza Taghavi, an American businessman wrongly imprisoned for 30 months in Iran. Taghavi’s family quietly hired a private lawyer and former government official, Pierre-Richard Prosper, to negotiate his release. While lobbying for Taghavi’s freedom, Prosper prudently kept the case away from the White House and State Department for fear that Taghavi would become leverage for Tehran in its nuclear negotiations with Washington. Prosper secured his release in October 2010.

Would the State Department, then desperate to jumpstart negotiations with Iran, have declared to Congress, as required by AFDA, that Taghavi "presented credible evidence of factual innocence"? And that his "detention [was] more likely than not a pretext"? It defies belief to think it would have, and imagine the damage to Taghavi’s family and Prosper’s negotiating power had it determined otherwise.

AFDA’s mandate for greater congressional involvement is also troubling. Congress, as George Kennan lamented, is responsive to "the pressures of various highly organized lobbies and interest groups" to tilt foreign policy to their own benefit. This interdependence on special interests prevents Congress from acting entirely on behalf of American detainees, the way NGOs and private lawyers do.

Take, as another example, Matt and Grace Huang, an American couple wrongly imprisoned in Qatar. With Qatar hosting U.S. negotiations with the Taliban and involved in the complex negotiations between Israel and Hamas, the secretary of state would surely be reluctant to upset the Qatari government by recommending to Congress, in the manner AFDA requires, "enhanced support" for the Huangs.

But suppose he did; a panoply of lobbyists, from the petroleum and hydrocarbons industries to companies for whom Qatar is a major export market, would then drown Congress in a flood of opposition to disrupting bilateral relations, threatening their business interests. Congress would predictably cave.

How would it appear to the Huangs, whose innocence is already proven, to watch their government solemnly agree on their ineligibility for enhanced support? Imagine, again, the damage such a demonstration of government opposition would inflict on the efforts of pro bono legal teams to win the Huangs’ freedom.

The impetus behind AFDA is laudable: get the government to show more support for American detainees. In reality, however, AFDA will sideline the support they and their families rely on. The House Appropriations Committee should remove it from the bill.