Ransom and Material Support

by Jens David Ohlin

The Foley family is furious that the US government did little to help them rescue their son, James Foley, from ISIS terrorists. In a recent New York Times article, the Foley family expresses frustration that European countries were quietly negotiating to pay ransoms for their nationals, while the US steadfastly refused to do so. As foreign nationals were gradually released for payments, detainees from the UK and the US remained behind because these two countries refuse to pay ransoms to terrorists. The Foleys figured this out late in the game and attempted a last-minute fundraising campaign to generate funds, but the effort came too late. They were also told by FBI agents that they could be prosecuted for paying a ransom to ISIS in exchange for their son.

I want to analyze in greater detail the claim that paying a ransom to ISIS could constitute a crime. I’m not aware of a specific federal statute banning the paying of ransoms to terrorist organizations. (If readers are aware of such a statute, please let me know in the comments section). Rather, I’m assuming that the FBI claim is based on the application of the material support provision of the federal code (18 U.S. § 2339B) which provides:

(a) Prohibited Activities.—

(1) Unlawful conduct.— Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).

(2) Financial institutions.— Except as authorized by the Secretary, any financial institution that becomes aware that it has possession of, or control over, any funds in which a foreign terrorist organization, or its agent, has an interest, shall—
(A) retain possession of, or maintain control over, such funds; and
(B) report to the Secretary the existence of such funds in accordance with regulations issued by the Secretary.

The first question is whether the payment of ransom constitutes the knowing provision of material support or resources. I’m not sure what a jury would do with this question. On the one hand, any money, delivered for any reason, can be considered a type of resource. Furthermore, the statute criminalizes knowing support, not just purposeful support. If it was the latter, the Foleys could claim that their purpose was to free their son, not provide material support. But since the mens rea is knowingly, perhaps they would be liable even if their purpose was the freedom of their son.

The bigger issue is whether they could claim an affirmative defense. The most likely possibilities are necessity and duress.

Necessity applies when a defendant, in response to a threat or emergency, violates a criminal prohibition because doing so represents the lesser of two evils. In that sense, the necessity defense has a utilitarian or consequentialist logic stemming from its status as a justification. If the defendant produces a greater evil, then the defense no longer applies.

In contrast, duress applies when the defendant performs a criminal act due to a threat of grave injury or death to the defendant or a close associate, emanating from a third party. (In the past I’ve argued that the defense should apply even if the target of the threat is not a close associate.) The paradigm of duress involves an autonomy-reducing threat that requires a level of moral heroism that cannot be expected by the law. The third party “forces” the defendant to violate the criminal prohibition by virtue of a threat that cannot be reasonably ignored. As such, duress is an excuse which negates the culpability of the actor. As an excuse, duress should not require that the defendant selected the lesser of two evils, because the claim has nothing to do with the defendant’s selection of a better outcome. Indeed, in duress situations the defendant may have selected the worse outcome because they are unwilling to sacrifice the life of the threatened individual.

American jurisdictions impose restrictions on the application of both defenses. Under the rule from Dudley & Stephens, necessity and duress are unavailable in cases of murder. There is a complicated question of whether the same exclusion should apply in manslaughter cases.

It seems clear to me that the Foleys, if they had paid a ransom to ISIS, would be (and should be) entitled to a duress defense. If they paid the ransom to ISIS, they would be providing material support to ISIS only by virtue of the threat against their son, which they cannot reasonably be expected to ignore. The government position is that paying ransom endangers future US citizens who would be captured for ransom by a terrorist organization incentivized to repeat the strategy. This seems factually true, though this point is irrelevant: duress as an excuse applies even if the outcome produced by the defendant is worse. Duress is not a lesser-evils defense. Finally, even if it were relevant, the future lives endangered by paying a ransom are speculative and hypothetical, rather than actual and manifest.

As a final point, necessity is often excluded as a defense if the statutory provision embodies a specific legislative choice or policy to criminalize the decision made by the defendant. However, that exclusion does not apply to excuses such as duress. And even in the context of necessity, there is no evidence that Congress had in mind the specific situation of paying ransom to terrorists. If, in the future, Congress passes a specific statute outlawing the paying of ransom to terrorists by private citizens, then the exclusion would be relevant.

Consequently, the Foleys are entitled to the duress defense, and that seems like the right result. And it also helps to explain the popular outrage over the FBI’s heavy-handed techniques against the Foley family. For the FBI agents to suggest to the Foleys that they would be prosecuted for paying the ransom was not only tone deaf–but it also indicates that the FBI agents did not understand the law of duress.


9 Responses

  1. Your legal analysis on the law of duress is spot on, but you seem to be making assumptions and jumping to conclusions. According to what appears in the article you base your comment on, the Foleys were merely told that it was “a crime for private citizens to pay off terrorists.”
    You first get it right by saying that the Foleys were told (by inference) that they “could” be prosecuted. Your conclusion that it was suggested (inferred threatened) that they “would” be prosecuted is stretching it.
    The defense of duress has been around in common law in general and specifically in the US, and it is commonly used by defense lawyers. The threshold to getting a jury instruction, much like self defense, is rather low. That said, the FBI does not decide who gets prosecuted, and it would have been irresponsible of the FBI if it did not alerted the Foleys of the potential legal perils if they opted to cooperate with and financially assist the terrorist – irrespective of their obvious and undisputed good intentions.
    Perhaps the FBI should have further advised the Foleys to seek legal advice, but that is really not part of their remit. But had the Foleys consulted any defense lawyer worth his/her salt, they would have been informed of the possible defences and potential outcomes before a jury trial, IF, and this is a big IF, the US Attorney chose to indict and prosecute. And that is not a given. Just as the outcome of a jury trial is never a given. Having a viable defense if one thing; convincing a jury to acquit on that defense is another.

  2. Just one comment totally outside US law’s perspective.
    These executions are awful, heartless and totally inhuman. Their perpetrators should be caught, trialed and arrested for the rest of their lives (but not killed, as they would see that as dying for their faith with I don’t know how many virgins to “acknowledge” this in heaven).
    Having said this, I would feel deep shame to discover that the Portuguese state (my state) is giving any tax-payers’ money to terrorist organizations, no matter what the reason is. Our money would just serve to buy more weapons to commit more atrocities. Besides, they would regard the Portuguese nationals as a lucrative prey. (on the bright side, at least someone would)
    The same thing for private parties. Basically, those fortunate enough with access to money to save their relatives would be helping to buy guns to kill those who were not so fortunate.
    In the Portuguese Law (Lei n.º 52/2003, pursuant to Council Framework Decision 2002/475/JHA of 13 June 2002), giving money to terrorist organizations is also a crime. Duress would work in Portugal as you described for the USA. However, in my opinion, duress should only work to reduce the sentence, but the act should still be a crime.

  3. Jens David: are you addressing defenses under federal criminal law applicable in a federal district court? Under international law, which is also “part of” the law of the U.S., necessity might relate to defense of others, but both defense of others and duress involve an imminent death or serious bodily injury. Perhaps that would fit some circ.

  4. Imminence is required under almost any jurisidiction. In any event, its clear in this case that the threat was imminent and that the captive was under a constant and immediate threat of death if the payment was not produced.

  5. With respect, it is almost never possible to say with absolute certainty that someone would be entitled to a defence before they’ve been tried (indeed – before they even act). And a criminal lawyer who can be sued for professional negligence would have to be insane to give advice in such unqualified terms. By the same token, the fact that an investigations and charges are foreshadowed if someone does something does not mean the authorities don’t understand the law. Charges do get laid when the case is less than overwhelming. It seems trite to point this out, but that is why criminal trials take place.

  6. Duress requires a sort of immediacy that doesn’t seem to exist here. One of the factors that defeats duress is the ability to take alternative action such as going to the police. They obviously did go to the authorities. So this is quite different from a traditional duress defense, where a defendant doesn’t have time to do anything but the illegal act. Here, they went to the authorities and were told not to do the illegal act.

  7. Could the hostage himself be prosecuted were he to pay a ransom. How does self defense and defense of others play in here?

  8. Jens,

    I just noticed your post, just under the wire for commenting. You asked readers to let you know of any “specific federal statute banning the paying of ransoms to terrorist organizations.” I’ll bite. Under the International Emergency Economic Powers Act (IEEPA), ISIS has been named as a “foreign terrorist organization” and a “specially designated global terrorist” on the List of Specially Designated Nationals and Blocked Persons (the SDN List) published by the Treasury Department’s Office of Foreign Assets Control (OFAC). This makes it a federal crime for a US person to engage in virtually any transaction with ISIS.

    You might be interested to know that Kevin Heller raised essentially the same question (and I gave essentially the same answer) on this blog back in 2007, in a post about payments made by Chiquita to protect its workers from a terrorist group in Colombia. http://opiniojuris.org/2007/03/15/what-did-chiquita-do-wrong/

    This still leaves open your duress argument, and related moral and policy objections to threatening to prosecute someone for paying a ransom to rescue a victim kidnapped by terrorists.


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