From Rare Occurrences to Zero Tolerance: Eliminating Hostage-Taking Worldwide

While officials may label the wrongful detention of Americans abroad as ‘rare,’ for those who have endured captivity and their families, even one case is one too many. We must shift our focus from accepting ‘rare’ as acceptable to striving for ‘none.’

When U.S. government officials assure us that the wrongful detention of Americans by foreign nations is “rare,” it might offer a fleeting sense of comfort to international travelers. This was precisely the stance taken by U.S. officials in a motion to dismiss a case brought in the District Court in the Western District of Pennsylvania by the family of Mr. Marc Fogel, an American unjustly imprisoned in Russia. Statistically, they may be correct, but is it the best way to frame the issue to the American people?

In their argument, the State Department lawyers use the word “rare” to downplay the prevalence of such cases, perhaps suggesting to the court that wrongful detentions are too infrequent to warrant legal scrutiny. As the case appears to be the first legal challenge to the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act, I have started to monitor it closely. Yet even “rare” is statistically correct; I find its use very telling about what some U.S. government officials appear to think politically about these sorts of cases.

The government’s position is predictable and similar to pre-Levinson law cases involving the wrongful detention of Americans and legal residents in foreign nations. I doubt filing the lawsuit was easy for the family to make. Dealing with the Russians is stressful, and having to also deal with what appears to be an uncooperative American government compounds the situation.

Rather than forcing the hand of the Fogel family to engage in protracted and complex litigation, the Biden-Harris administration should do the right thing and find a way to bring Mr. Fodgel home before the end of the year, rather than engage in a protracted legal battle with the family. And for that matter, the Russians will undoubtedly exploit the matter.

The stark reality is that “rare” does not equate to acceptable, and complacency in the face of such violations perpetuates the problem. This complacency becomes even more troubling when considering the experiences of others who have gone through this process and continue to do so.

There are individuals like Mr. Nizar Zakka, a Lebanese-born U.S. permanent resident and U.S. government contractor - and now a U.S. citizen - who was wrongfully detained in Iran for nearly four years. Zakka’s ordeal and his subsequent advocacy work, and that of many other former hostages and families, underscore the urgent need to transition from accepting these incidents as anomalies to adopting a zero-tolerance stance against wrongful detention and hostage-taking worldwide.

The U.S. government should aim to resolve wrongful detention cases within months or, at most, a year—not years or even decades. While the resolution may take time, as Zakka’s case and others I have worked on illustrate, we need to recalibrate expectations around case timelines. Delays profoundly impact the hostage, who is the most critical person in this process, the families, and our nation.

Furthermore, every American and U.S. legal resident deserves due process and equal protection in how laws are applied and cases resolved, ensuring fair and timely outcomes. The Fogel lawsuit may help chip away at what I have called over the years in my private practice the national security regulatory black box that seems to delay Levinson law designations or, at a minimum, put pressure on Congress to do something about it.

In a recent Jerusalem Post interview, Zakka emphasized the “devastating impact of hostage-taking on the families of victims,” stating, “Families of the hostages are being hammered again and again—by the terrorists, then by the governments of their respective nationalities, and then by the international community as a whole.” Read the full story here.

Zakka’s story reminded me of something Benjamin Franklin once said about time, “Dost thou love life? Then do not squander time, for that’s the stuff life is made of.” We must not allow hostage-takers to run out the clock, squandering political and other resources to exploit this issue for political gain or forcing these cases into a national security regulatory black box, where common sense, due process, and equal protection go to die.

The Unacceptable Acceptance of ‘Rare’

Labeling these cases as “rare” in their motion to dismiss the State Department impliedly diminishes the offense’s severity and undermines the urgency to address them. You should read it. I’ve embedded it at the end of this paragraph. Each wrongful detention represents a profound violation of individual rights and an affront to the principles of justice and customary international law.

Still, more importantly, it just makes America look bad. Even a single instance is one too many, and we must ensure that no government even considers such actions against U.S. nationals. One American wrongfully detained or held hostage by a foreign nation or non-state actor such as a terrorist group is one too many. There was a time when our elected representatives in Congress were purposely kept in the dark about these kinds of cases. That is how far the executive branch would go to keep this embarrassing information, even if “rare,” because of the political damage these “rare” cases can inflict on diplomatic relations and business interests.