A Prisoner’s Dilemma: Negotiation and American National Security Policy

BY JOSHUA C. FIVESON

This piece appeared in our 2015 print journal. You can order your copy here

In September 2013, the most active branch of the Al-Qaeda terror franchise—Al-Qaeda in the Arabian Peninsula, or AQAP— kidnapped a British-born American citizen. His name was Luke Somers.

Raised in the United States, Somers pursued a degree in creative writing and
was described by many as someone who suffered from “wanderlust”—an insatiable desire to see the world. Once his studies were completed, Somers went on to establish himself as a successful freelance journalist in Sana’a, Yemen. His true goal, however, was more than to be a journalist. Somers wanted to make a positive impact in the turbulent region; he wanted to change Yemen’s future. Sadly, it was his own future that would be forever changed.

One September evening, Somers found himself walking home alone in the streets of Sana’a. “We told him to avoid going out after the evening hours,” Faud Rajeh, a friend of Somers recalled, “and that’s when [it happened].”1 Somers was kidnapped by AQAP.

After a year of silence, AQAP released a video that confirmed the gravity of the situation: Somers would be killed within 72 hours if the United States did not comply with their demands. Also in the video was Somers himself, who made it clear that the situation had gone from bad to worse. With an eerily placid, near-listless demeanor, Somers confessed, “I’m certain that my life is in danger.” As he continued to stare into the camera, the Yemeni breeze whipping at his back, Somers went on, “So, as I sit here now, I ask, if anything can be done, please let it be done. Thank you very much.”2

However hopeful one might have taken this message to be, Somers’ demeanor in the haunting video revealed something far greater than his words were intended to let on: his fate was sealed. Somers would die in the very country that he had worked so desperately to save. And despite claims that the United States was “aware” of what demands might secure Somers’ release, there were no channels of communication between AQAP and US officials—the United States staunchly refused to negotiate with a terrorist organization. Ultimately, Somers would die as a matter of “good policy.”

But the failings of this policy choice are strikingly underlined by the less-told story of Pierre Korkie, Somers’ South African cell-mate in Yemen. Korkie was a schoolteacher in Sana’a and had been captured along with his wife by AQAP earlier in 2013. Oddly enough, Mrs. Korkie was released with no ransom nearly seven months after her abduction. As for her husband, however, AQAP refused to let him go without ransom; this was for fear of setting bad precedent.

Over the course of the next year, a group called Gift of the Givers—a charity that runs humanitarian projects in eight countries including Yemen—worked to establish communication channels with the AQAP group holding Korkie. In August 2014, unbeknownst to the US government, the charity succeeded in brokering a deal with AQAP through local tribes. AQAP had agreed to release Korkie, and he was to return home before the new year.

Days before the scheduled release, however, the United States put a plan into action that sealed the fate of both him and Somers. SEAL Team Six, the United States’ most elite Special Forces unit, was sent on a secret mission to rescue Somers. But this was not the first attempt to extricate Somers with military might; in fact, the first mission— launched days before the release of Somers’s video—had ended in failure. It was widely speculated that the failed exfiltration was the reason the group chose to release the video and set a final deadline. Despite this, the United States had no other option given its refusal to engage in talks with AQAP.

Joined by a small contingent of Yemeni counterterrorism forces, the SEALs flew under cover of darkness to the AQAP compound in which both Korkie and Somers were held. The team landed several hundred yards from the compound, but something went wrong as they approached. The team was detected, and by the time they breached the compound, the hostages had been executed. The mission was a failure. Both Korkie and Somers never made it home.

The United States’ aversion to negotiation traces its roots to an icon of American strength: Ronald Reagan. Forcefully asserting that the time had come for “the civilized countries of the world [to make] it plain that there is no room worldwide for terrorism,” President Reagan definitively stated that “there will be no negotiation with terrorists of any kind.”3 Although this would later prove short lived for his administration— Reagan was a key figure behind both the Iran-Contra and Trans World Airline hostage negotiations—his impact upon the future policies of the United States was longstanding; a “no negotiation” policy had been born.

Much like the Reagan administration’s position, an overwhelming majority of countries publicly denounce negotiation while taking a much less forceful stance in practice. Countries such as England, who maintained communication with the Irish Republican Army after the infamous Downing Street assassination attempt; Spain, who engaged in talks with the Basque Homeland and Freedom group shortly after its deadly supermarket bombing; and even Israel, who secretly negotiated the Oslo Accords with the Palestinian Liberation Organization, routinely cast aside this ossified policy when push comes to shove.

The United States, on the other hand, is a part of the distinct minority of countries that categorically refuses to negotiate. But this has not always been the case. The storied history on this subject dates as far back
as the nation’s first encounter with terrorism: Barbary pirates. George Washington, John Adams, and Thomas Jefferson each authorized payments to the group, which was composed of pirates and privateers in Northern Africa, in various exchanges. This even culminated in a treaty wherein an annual provision of naval supplies was granted as “protection” from attack.4  This practice
 of below-the-radar bartering continued throughout the years with other groups and other presidents. The Johnson, Nixon, and even Carter administrations are known to have negotiated with terrorist groups.

Now, however, the United States claims an unyielding policy. No matter who, what, when, or where, the United States refuses to negotiate with terrorists. But why?

Those who oppose a policy of amenability to negotiation in the national security context often cite a number of concerns. These challenges range in scope and have traditionally boiled down to two main contentions: (a) floodgates, the idea that a negotiation would encourage further confrontation, and (b) legitimacy, the idea that recognition implicitly undermines US interests by bolstering the legitimacy of terrorist organizations. These beliefs, however, are ill-founded.

The floodgates concern is often cited and rarely challenged. Premised on the idea that a willingness to negotiate would provide incentive for future targeted attacks, the argument is used to characterize the United States’ current policy as a deterrent mechanism. But the belief that radical actors might be influenced to further target the United States if it were to become amenable to negotiating with such groups finds its foundation in theory, not history. Were this actually the case, one might expect the “terror market”—the economic backdrop shaped by nefarious conceptions of supply and demand—to reflect such incentives. But this could not be farther from the truth.

Take, for example, Al-Qaeda in the Islamic Maghreb (AQIM)—one of the wealthiest and best-armed militant groups in Northern Africa. From 2008–10, AQIM enjoyed large success within the kidnapping industry. During this period alone, the group managed to capture seven hostages—two Canadians, two Austrians, and three Spaniards—and successfully negotiated roughly $9.2 million in exchange for their safe passage.5

What is more is the families of the hostages did not pay these ransoms, nor were they paid by philanthropic organizations. Instead, these funds were largely paid by each of the hostages’ respective countries.6 Strangely though, AQIM went on to shirk what is assumed to be one of the most fundamental tenets of terror microeconomics: when you find a market, you sell to it.

From 2010–14, AQIM kidnapped another eight individuals, only two of which were from the previous countries that had been identified as profitable targets. Although their demands skyrocketed from $1.3 to $8.6 million per person, ultimately netting a total bounty of $68.9 million,7 this success cannot be attributed to the proverbial floodgates having been opened against a particular country. There was no indication that the group was actually targeting any particular nationality over another. Indeed, with only two of the eight hostages from countries that the group had previously identified as willing negotiators, AQIM revealed its more simplistic, opportunity-oriented approach: Kidnap first and ask questions later.

The unprincipled reality of this approach yields two primary insights, both of which bear on the farcical legitimacy of the United States’ claimed justifications for its “no negotiation” policy. First is the lack of any preferential tactics by these groups. Again, the decision of whether or not to kidnap a given individual seems to bear no relation to a particular country’s anticipated amenability to negotiation. With no indication of any particular targeting strategy, the repeated assertion that an “administration’s decision to negotiate . . . could encourage future terrorist kidnappings of Americans” is of little substance.8 Second is the nonexistent deterrent effect that is claimed to inhere to the current policy. The targeting process is largely random and is principally based on both opportunity and the favorable odds that a given victim will hail from a country that might be open to negotiation. So long as this continues to be the case, the general incentives at play will annul any deterrent effect that a single nation’s policy might seek.

But if a refusal to negotiate does not deter this activity, and a country’s willingness to negotiate does not, itself, promote this activity, what, then, can justify the United States’ current policy? Similar to an object permanence disorder, the United States seems to have a problem with foreign policy permanence.

It seems that the United States operates under the assumption that a refusal to acknowledge the acrimonious policies of other countries might work to diminish the reality of their effect. But refusing to acknowledge the deleterious effects of these policies reflects an unprincipled dedication to ideology over practicality. This simply limits the range of viable responses in situations involving US citizens without affording any commensurate tactical or deterrent benefit.

Similarly, the legitimacy concern—an idea that the political recognition of these groups would implicitly work against the interests of the United States—has been largely misunderstood and mischaracterized. A policy that is open to principled negotiation tactics does not automatically confer legitimacy upon anyone, nor should the idea of conferring legitimacy be viewed as only negative. Instead, this fear has been perpetuated by years of rote political reiteration without any actual evidence to support such a belief.

In reality, many experts have argued that the exact opposite is true. Accepting a socially constructed perspective on legitimacy, it is clear that a “state’s acceptance of a party as a legitimate interlocutor does not automatically confer [legitimacy] upon the latter.”9 Legitimacy is, instead, the product of broad, geopolitical, normative values that culminate in a group’s recognition on the international plane.

One need only think to the longstanding attempts at negotiation between Israel and Palestine to more fully underline this point. Legitimacy—here, in the sense of regional autonomy—is one of the main points of contention between the Israelis and the Palestinians. This very concern has fueled what is widely known to be the most intractable conflict in modern history. However, the two groups have routinely met at the bargaining table, and doing so has not bolstered the very recognition that the Palestinians so forcefully seek. Instead, the ability to communicate has repeatedly resulted in ceasefires of varying degrees and has been one of the sole contributing factors toward resolution—however far away that might be.

Even if some level of legitimacy is implicitly conferred by isolated negotiations, 
it is not clear that this is always a negative consideration. A platform that embraces a principled approach to negotiation in many ways creates an incentive for terrorist groups to adopt less aggressive tactics by reinforcing the normative value of nonviolence. There is power in identifying particular groups as, in some sense, legitimate. Take, as an example, the Moro Islamic Liberation Front and its dealings with the Philippine government. The Philippine government was able to shift the group from extremist tactics to legitimate engagement, despite its strong links to Al-Qaeda, both ideologically and tactically

Extremist groups such as Al-Qaeda and ISIS (Islamic State in Iraq and Syria) regularly seek to find a voice that they believe has been stifled. And having no other means for communication with the United States,
 a prisoner represents a direct line to the up- per echelon of the US government. Through what can only be described as a perverse call and response, the United States and these organizations communicate through iterative violence. Kidnappings are met with a refusal to speak; a refusal to speak is met with a deadline; a deadline is met with either silence or force; and this, in turn, yields consistent tragedy. The brutal coordination is palpable, and the resulting ballet is as predictable as it is lethal.

If, however, this cyclic response could
be broken by the formation of an open communication channel in appropriate circumstances, the results would be twofold. First, an outlet for legitimate dialogue could actually serve to draw extremist groups away from their barbaric strategies and to the negotiating table. Again, by reinforcing the normative value of nonviolence, the United States can establish the path to some sense of geopolitical legitimacy, if only temporarily. It is this very carrot-and-stick diplomacy that fairly successfully led the United States’ non-proliferation efforts with countries such as Ukraine, North Korea, and Libya in the early 90s.

Second, the United States would be able to more tactfully leverage its resources by flagging with whom it is willing to negotiate. The US military’s greatest deterrent power is not in operation but in wait. For instance, the internationally lauded disarmament of Syria’s chemical weapon stockpiles would not have occurred were it not for
the Russian-brokered negotiations between Syria and the United States that operated on the backdrop of threatened military action. By reserving the use of military force as a viable alternative to a negotiated agreement, the United States was able to strengthen
the motive to seek a political resolution.
This approach also has the added benefit of preserving resources. At the end of the day, the military is composed of men and women, and lives should not be put on the line simply because they can be. War is an ultimatum, not a utility.

Broad, foundationless assertions that the “only language understood by [terrorists] . . . is the language of force” are quickly being recognized for what they truly are—glib, political talking points.10 The current approach imprudently shifts the treatment of terrorism away from the political realm, restricting the resolution of these issues to reciprocal demonstrations of force. “Terrorism,” however, “is fundamentally and inherently political.”11 And political problems require political solutions. The United States must discard the policies of years past and adapt to a changing world. Absent a reevaluation of the current approach to terrorism, the resulting outcome is the classic prisoner’s dilemma—a situation that almost exclusively produces a losing scenario for all parties involved.

 

Joshua C. Fiveson is an officer in the U.S. Navy, a graduate of Harvard Law School, and a former Harvard Graduate Student Leadership Institute Fellow at the Kennedy School’s Center for Public Leadership. Fiveson regularly writes on issues involving foreign policy, international law, and the confluence of national security and constitutional law, and he currently serves as an Attorney Advisor at the U.S. Court of Appeals for the Armed Forces. Fiveson is also the Co-Director of J.D. Operations for Service to School, the nation’s only non-profit that provides cost-free assistance to veterans seeking admission to top universities. Any views expressed by Fiveson are his own and do not reflect that of the Department of Defense, the Department of the Navy, or any other organization. 

 

Photo credit: Sana’a, Yemen by Richard Messenger.

 

Endnotes
1 Alexis Flynn, Maria Abi-Habib, and Hakim Almasmari, “Journalist Luke Somers Captured Suffering in Yemen in Photography,” The Wall Street Journal, 6 December 2014.
2  “Al Qaeda Video Shows British-American Hostage,” CBS News, 6 December 2014.
3  John Ehrman and Michael W. Flamm, Debating the Reagan Presidency (Lanham, MD: Rowman & Littlefield, 2009).
4  Mitchell B. Reiss, Negotiating with Evil: When to Talk to Terrorists (New York: Open Road Media, 2010).
5  Rukmini Callimachi, “Paying Ransoms, Europe Bankrolls Qaeda Terror,” The New York Times, 29 July 2014.
6  Ibid.
7  Ibid.
8  Marco Rubio, “Bergdahl Swap Puts Americans in Danger,” CNN, 4 June 2014.
9  Harmonie Toros, “‘We Don’t Negotiate with Terrorists!’: Legitimacy and Complexity in Terrorist Conflicts,” Security Dialogue Vol. 39, No. 4 (2008): 413.
10 “Remarks by President Obama in Address to the United Nations General Assembly,” The White House, 24 September 2014.
11 Bruce Hoffman, Inside Terrorism (New York: Columbia UP, 2006).

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