James Foley and the Hostage Act

Some commentators have suggested that the newly disclosed special forces operation to rescue James Foley may have lacked congressional authorization, thereby further underscoring the growing concerns over unilateral executive war powers as applied to ISIS–the target of the Foley operation:

At least based upon what we know thus far, though, it’s not obvious to me why the Foley operation couldn’t be defended based upon the language of the 1868 Hostage Act, 22 U.S.C. § 1732:

Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war and not otherwise prohibited by law, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress.

To be sure, (1) ISIS is not a “foreign government”; and based on what I’ve seen, it’s not yet clear whether (2) the operation “amounted to acts of war”; or (3) appropriate notification was provided to Congress. So it’s certainly possible that the Foley operation didn’t comply with the statute. But I actually don’t think it’s a stretch to read “foreign government” as synonymous with “foreign power,” and I also suspect that the Administration has pretty good arguments on (2) and (3) as well. Indeed, in light of today’s news that ISIS apparently tried to ransom Foley, the Hostage Act seems a pretty snug fit… At the very least, the more general proposition–that Congress hasn’t authorized the use of the military to rescue U.S. citizens being held hostage overseas–just isn’t accurate. If anything, the Hostage Act is a reminder that, in any number of cases short of full-scale hostilities, Congress actually has authorized use of the military overseas… 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).