Potential Shift in Hostage Policy: Officials to Recommend Families Be Free to Pay Ransom

— -- Families of American hostages who communicate with foreign kidnappers or raise money and pay ransoms will no longer have to fear prosecution for aiding terrorist groups, a White House-ordered advisory group on U.S. hostage policy is expected to recommend, senior officials told ABC News last week.

"There will be absolutely zero chance of any family member of an American held hostage overseas ever facing jail themselves, or even the threat of prosecution, for trying to free their loved ones," said one of three senior officials familiar with the hostage policy team's ongoing review.

The study undertaken by the National Counterterrorism Center on orders from the Obama White House has involved interviewing many of those with tragic experience such as the parents of journalist James Foley, who were among several families alleging they were repeatedly threatened by administration officials with prosecution last summer for moving to raise millions in ransom demanded by ISIS and other groups in Syria.

Neither of the officials who confronted the Foley family, at the National Security Council and at the State Department, were in law enforcement positions. On Aug. 19, 2014 James Foley was beheaded on video by ISIS executioner and spokesman Mohammed Emwazi, a British citizen nicknamed "Jihad John" in the West.

Two more Americans, two Britons, two Japanese and one Jordanian hostage were subsequently slaughtered one by one on video by ISIS. American hostage Kayla Mueller, who was given as a gift bride to a senior ISIS leader, officials have said, was killed last February in what the terrorist group claimed was a Jordanian airstrike in Syria -- a claim American officials have disputed.

Diane Foley, James Foley's mother, told ABC News last September her family was "told very clearly three times that it was illegal for us to try to ransom our son out and that we had the possibility of being prosecuted."

"We felt compelled. We had to attempt to raise money... What would anyone do? Give me a break," she said in the interview last year. "We don’t want other American families to go through what we have."

Foley said Saturday that with the new policy, which officials discussed with her last week, it seems the government is "trying to make it right in their way."

"There's a lot that needs to be fixed," she told ABC News on Saturday.

The past threats were "the straw that broke the camel's back. It was incredible," Foley added.

She said she intends to press President Obama to accept the recommendations of the NCTC team, which will soon be "on his plate."

After James Foley's death, Obama administration officials publicly denied the Foleys' allegations, which multiple sources throughout the government's hostage recovery programs had confirmed to ABC News. Secretary of State John Kerry said during a stop in Turkey in September that he was "really taken aback" and "surprised" the Foleys were saying publicly that they felt they had been threatened by their own government prior to their son's murder on video in August.

"I know how difficult this is, and all I can say to you is I know of no one who issued such a construction. I have no knowledge of it," Kerry told reporters in his comments last year.

Other officials said that their colleagues had merely explained to the Foleys and other families that U.S. law forbids "supporting" terrorists even with ransom to save a loved one's life and that any other "concessions," such as a prisoner swap are forbidden as well.

"Without getting into the details of our private discussions with families, the law is clear that ransom payments to designated individuals or entities, such as ISIL [also called ISIS], are prohibited. It is also a matter of long standing policy that the U.S. does not grant concessions to hostage takers. Doing so would only put more Americans at risk of being taken captive," President Obama's National Security Council explained last year in a statement to ABC News.

But after Army Sgt. Bowe Bergdahl was freed by the Haqqani Network in Pakistan a year ago for five Taliban leaders incarcerated in Guantanamo Bay's military prison, many hostage families later cried foul over no swaps being offered for their loved ones. The White House responded that Bergdahl, who now faces life in prison if convicted of desertion, was considered a prisoner of war and therefore his case was different.

The hostage policy review team is headed by Army Lt. Gen. Bennet Sacolick, a former commander of the elite Delta Force counter-terrorism unit, and his NCTC staff. He told the Daily Beast last week that "we can do better" at informing hostage families about developments in their cases, which has been another criticism by the Foleys who complained they were kept in the dark during their son's captivity.

Experts say that threatening hostages' families with prosecution who already are suffering excruciating pain -- which eventually was subsumed by grief when their loved ones were murdered by ISIS -- was not only reprehensible, but sticking to a cookie-cutter policy of outlawing ransom negotiations or payments also mistakenly restricted options rather than risked encouraging more kidnappings.

"They should be allowed to do whatever they can as a civilian to get their victim or family member out of harm's way," former FBI agent Jack Cloonan, who has been involved in hostage negotiations, told ABC News last week.

The Foleys said last year that they had been told by Obama aides that any effort to pay ransom would be viewed as providing material support to terrorists. But, in reality, the payoffs are often pocketed by middlemen and hostage-takers rather than used to buy weapons or support terrorist operations, Cloonan said.

"I think what the President has been forced to articulate now is that we should draw a distinction and make it clear what a private citizen can do versus what the government should do," he said.

Another retired agent, former chief FBI hostage negotiator Chris Voss, said the alleged strong-arm tactics used by some government officials "was a horrible thing to do to the families" and was "the symptom of an uncoordinated government response."

"No one who was in a position to make prosecutorial decisions was making the threats. So threats were being made by people who didn't understand the policies. I think it was an indicator of lack of functionality in the government," Voss said in an interview.

It also didn't save lives.

Besides the four Americans killed by ISIS in Syria, one American and a South African were killed during a hostage rescue attempt by Navy SEALs in Yemen in December. American Warren Weinstein and an Italian hostage, Giovanni Lo Porto, were killed accidentally in a CIA drone strike targeting Al Qaeda in Pakistan in January. A person familiar with Weinstein's ordeal said the family attempted to pay around $250,000 to the men believed to be holding him, but it came to nothing.

There are at least two more Americans, Caitlan Coleman and her toddler child, publicly known to be Taliban captives in Pakistan.

Voss said he's concerned that a negative affect of looking the other way when ransoms are collected and paid by families is that they won't have FBI input on the mechanics of a process the victims have never engaged in previously.

Two former officials told ABC News that payoffs to hostage-takers in some cases are allowed under the secret National Security Presidential Directive-12 if a ransom is paid as part of a sting operation or to bring the perpetrators to justice.

Another conceivable benefit to paying a ransom is to gain intelligence by tracing the cash and how it is spent.

"The issue is not whether or not ransom is paid, the issue is how it's paid," Voss explained. "The practical matter is money is very traceable. You just have to know what money to trace. It's not hard at all. Put the money in the terrorists' hands, find out who they're buying weapons from because you're going to follow the money. Find out who they're buying medical supplies from."

Will paying extortion fees encourage more kidnappings of Americans overseas? Voss insisted that most who are abducted in the Middle East's warzones are simply targets of opportunity.

"I don't think this is going to lead to more kidnappings at all," he said.