On not not negotiating with terrorists
Rob James
And on distinguishing history from History.
Even a hypothetical conversation with my dear imaginary friend Amy Otis produced an interesting anecdote from early in her legal career. She told me of the time she participated in the release of an expatriate held hostage for months by an overseas political-military revolutionary group.
Ever modest, Amy clarified that she was just a junior lawyer, working for two senior attorneys, none of them with military or law enforcement backgrounds, and that they were advising private security experts who knew what they were doing. Nonetheless, she as a twentysomething was involved as the negotiations for release took place, and she did draft some of the talking points.
Since she only worked on one such kidnapping, Amy said she didn’t know if this was unusual, but it was striking to her that the negotiations centered on enhancing the internal political standing of the hostage-takers. What they coveted was elevated regard in the region over which they wanted influence and control. Accordingly, the main currency of exchange proved to be things of value not to the group but instead to local communities, things for which the seizers could claim credit.
The problem was the perennial one in such circumstances—whether to engage in negotiation at all. Any public indication of a quid pro quo—a provision of value for return of a captive—would be and be seen as extortion and an inducement for more kidnappings. There were and are objections to dealmaking on both moral and pragmatic grounds.
Amy told me that there is an enormous literature on whether to negotiate with kidnappers or hostage-takers, especially those designated as terrorist organizations. At the time, she was familiar with none of it, though we had both heard the declaration “never negotiate with terrorists” in movies, TV and other media, often referring to demands of infants or teenagers. Interestingly, “there are legal precedents in the U.S. establishing that promises made to hostage-takers during negotiations are not legally binding contracts.” Amy and I wondered if hostage-takers are generally aware of those cases. (endnote 1)
Back to the hostage negotiations. There needed to be a decoupling of a quid from a quo. In the heat of the moment, within Amy’s team it was suggested that certain goods appear near a village, delivered by a third party, with no identification of the donor. That would facilitate one side saying it was a goodwill contribution, not admitting that it was part of a deal, and the other side able to seek adulation for their arrival.
More as scribe than anything else, Amy wrote the talking points describing the goods and the delivery mechanics. She said the language reminded her of a commercial bill of lading. Those bullets found their way up and down the chain of communications and were reflected in the arrangements for release of the hostage.
Amy mused that as she wrote the points, she recalled the book Thirteen Days, published in 1969 posthumously under the byline of the late Robert F. Kennedy (RFK). (Robert F. Kennedy, Senior, it should be clarified these days.) She vividly remembered the climax to the Cuban Missile Crisis as described in this work, said by Theodore Sorensen in the introduction to be a faithful reproduction of RFK’s personal diary as Attorney General for his brother John (JFK) in the last two weeks of October 1962.
Toward the end of that final fragile fortnight, a deal was emerging where the Russians would withdraw their nuclear missiles in exchange for the US undertaking not to invade Cuba a second time (after the Bay of Pigs fiasco). But then a US pilot performing a flyover was downed and killed, and the temperature began to rise on both sides—the US military for the attack and the USSR for the overflight in the first place. Suddenly a message came from Chairman Nikita Khrushchev that the missiles would only be withdrawn in exchange for withdrawal of US Jupiter missiles from Turkey.
Such a linkage of Cuba for Turkey was unacceptable to many on the American side, diplomats as well as generals. The US could not be perceived to be bartering with the security of NATO and an ally like Turkey on and for its own account. Still, JFK was bent on reducing the tensions and brinkmanship and pressed for a deal that would avoid the appearance of negotiation. The US could not be seen to negotiate, but it would not not negotiate either.
RFK in the 1969 edition of Thirteen Days described the fateful meeting with Soviet US Ambassador Anatoly Dobrynin:
He asked me what offer the United States was making, and I told him of the letter that President Kennedy had just transmitted to Khrushchev. He raised the question of our removing the missiles from Turkey. I said that there could be no quid pro quo or any arrangement made under this kind of threat or pressure and that in the last analysis this was a decision that would have to be made by NATO. However, I said, President Kennedy had been anxious to remove those missiles from Italy and Turkey for a long period of time. He had ordered their removal some time ago, and it was our judgment that, within a short time after this crisis was over, those missiles would be gone.
Thus, the Soviets and Americans came to an inference, if you will, that the Cuban missiles would go away first and that the Turkish missiles would be gone a few months later. The crisis dissolved shortly thereafter, albeit with a considerable Cold War aftermath.
Amy said that as she drafted the talking points on the village goods, she thought, “This is just like Cuba!” Her team was not tying the goods to the hostage release; it was independently causing them to appear magically in a forest clearing, and anyone could say what they wanted about their provenance. This was a case of not negotiating.
The hostage was released, ill and traumatized but not physically harmed. Justice of a sort was eventually achieved, through legal remedies being successfully prosecuted against at least some of those responsible.
That was the end of Amy’s tale of bravado. But, she added, the tale proved to be incomplete. Many years later, long after the hostage episode, she learned that the story told in Thirteen Days was false—or at least seriously misleading.
The cause of the misdirection was none other than the ubiquitous speechwriter Ted Sorensen, already having ghostwritten Profiles in Courage and other works of the Kennedys. As Sorensen belatedly confessed in 1989:
[JFK] instructed Robert Kennedy—at the suggestion of Secretary of State [Dean] Rusk—to deliver the letter to Ambassador Dobrynin for referral to Chairman Khrushchev, but to add orally what was not in the letter: that the missiles would come out of Turkey.
And here I have a confession to make to my colleagues on the American side, as well as to others who are present. I was the editor of Robert Kennedy’s book. It was, in fact, a diary of those thirteen days. And his diary was very explicit that this was part of the deal; but at that time it was still a secret even on the American side, except for the six of us who had been present at that meeting. So I took it upon myself to edit that out of his diaries, and that is why the Ambassador is somewhat justified in saying that the diaries are not as explicit as his conversation.
The diaries and other documents of Khrushchev and Dobrynin, especially those released after 1992, confirm that the Cuba and Turkey deals were in fact linked, orally and secretly. The only restriction was neither side talking about it. This was not not negotiating; this was in fact negotiating after all. Just clandestine good old quid pro quo negotiation. (endnote 2)
But, Amy laughed as she finished the anecdote, she didn’t know that at the time! She thought that she was following an example from history. It turned out that she was following an example from History—what historians and even eyewitnesses (or their editors) report to us about the past. The latter History is ever contingent and always subject to revision and revisionism.
Amy and I were chastened. Never again would we accept something as true simply because we found it in a history book. (And this revelation impacted the two of us long before the era of the Internet.)
The narrowest lesson here is that it is not always obvious to the outside world how a hostage release deal is cut. As Robert Mnookin and Susan Hackley noted in 2004, “FBI and police hostage negotiators nearly always negotiate with hostage takers [to] make a deal, but one that appears to disconnect the ‘quid’ from the ‘quo’…Whether or not to negotiate with terrorists? Useful generalizations are difficult to come by except to say that there often is a choice. And, behind the scenes, a lot more might be going on than meets the eye.”
The medium-width lesson here is that sunlight is not always the best disinfectant. Not everything needs to be publicly broadcast about any development—if other, higher values might be jeopardized. When Charles Darwin’s theory emerged of descent of humans from a common ancestor with other primates, the wife of the canon of Worcester Cathedral reportedly exclaimed to her husband, “Descended from the apes! My dear, we will hope it is not true. But if it is, let us pray that it may not become generally known.”
The largest lesson here, Amy concluded, is always to distinguish history from History. As Winston Churchill apparently never said but should have, “History will be kind to me, for I intend to write it.” (endnote 3)
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Endnotes
See, in addition to countless law enforcement and military training manuals, Chris-Adelle Khaw, Hostage negotiations with terrorists: How and when is it justified? (U. Penn. L. Rev. papers, n.d.); Brian Michael Jenkins, Domestic Politics Have Always Affected Hostage Deals, The Hill, August 14, 2024 (“there is always a quid pro quo to gain the release of those held abroad”); Rachel Briggs OBE, “We do not negotiate with terrorists” – but why?, Chatham House (2025) (comparing US and UK asserted prohibition of government negotiations with practices of other countries and of private actors) (even the FBI allows American companies and private persons to negotiate release of hostages taken by organizations, so long as they are not formally designated terrorist groups). The cases declining to enforce hostage release contracts include U.S. v. Crosby, 713 F.2d 1066 (6th Cir. 1983) and Ariz. v. Sands, 700 P.2d 1369 (Ariz. Ct. App. 1985).
Robert F. Kennedy, Thirteen Days: A Memoir of the Cuban Missile Crisis 109 (Theodore C. Sorensen ed. 1969) (emphasis added); Graham Allison & Philip Zelikow, Essence of Decision: Explaining the Cuban Missile Crisis (1999); Theodore C. Sorensen, in Bruce J. Allyn, James G. Blight, and David A. Welch, eds., Back to the Brink: Proceedings of the Moscow Conference on the Cuban Missile Crisis, January 27-28, 1989, at pp. 92-93 (emphasis added); Jim Hershberg, Anatomy of a Controversy: Anatoly F. Dobrynin’s Meeting with Robert F. Kennedy, Saturday, 27 October 1962, The Cold War International History Project Bulletin (Issue 5, Spring 1995).
Robert Mnookin & Susan Hackley, Disconnecting “Quid” From “Quo,” Los Angeles Times, September 26, 2004.
Churchill in fact responded to a 1948 Labour Party attack on the Conservatives’ prewar foreign policy: “For my part, I consider that it will be found much better by all parties to leave the past to history, especially as I propose to write that history myself.”
Never mind yet a third meaning I style HISTORY, the purposive march of the Zeitgeist or the inevitable final class conflict towards an end state, as contemplated by Hegel, Marx, Kojève, or Fukuyama.