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.