§1741 — Title 22 Foreign Relations and Intercourse | U.S. Code

Summary

The Secretary of State must quickly review cases of U.S. citizens held overseas to see if there is credible information that their detention is unlawful or wrongful. The review can look at things like evidence of innocence; whether the person is held because they are American or to pressure the U.S.; whether they were punished for exercising free speech, religion, or peaceful assembly; violations of the detaining country’s laws or fair trial rules; inhumane conditions; reports from journalists or NGOs raising doubts; or if U.S. diplomacy is likely needed to win release. If, after looking at all the facts, the Secretary finds credible information of unlawful or wrongful detention, the case must be moved quickly to the Special Presidential Envoy for Hostage Affairs and Congress must be told within 14 days (the notice can be classified). The Secretary must also send Congress an annual, mostly unclassified report with the number of such cases and key case details, legal and diplomatic steps taken, and planned next steps. By 180 days after December 27, 2020, the Secretary must give written resource guidance to families and officials about U.S. policy, contacts, options, and helpful services. The State Department may pay travel costs to Washington, D.C., for family members more than 50 miles away so they can meet the government: normally up to 2 trips per fiscal year, up to 2 people per trip, and up to 2 nights lodging (exceptions can be made by the Envoy). The Department should also offer physical and mental health services and other support to detainees and their families; post‑return support can last up to 5 years from when someone chooses to get help. The Department must tell Congress within 14 days if annual spending on family travel and support goes over $250,000, and must send a fiscal report within 90 days after each fiscal year describing spending, types of support (without naming recipients), and the Envoy’s visits to families outside Washington. The travel and support rules end on December 31, 2027. The Consular Affairs bureau and the Envoy must review potential wrongful‑detention cases at least every 180 days, send a classified list to Congress within 30 days of each review, and notify families within 30 days. The Secretary has 180 days to make a final detention determination after getting a bureau assessment, unless a classified waiver is issued for safety or national security (waivers last 180 days and can be renewed). When a person determined to have been unlawfully or wrongfully detained is released and returns, the President must give them a letter declaring the detention invalid to help with records and background checks. Family member here means close relatives and certain in‑laws, step and half relatives, and some extended family.

Title 22, §1741

Foreign Relations and Intercourse — Source: USLM XML via OLRC

(a)The Secretary of State shall review, as expeditiously as possible, the cases of United States nationals detained abroad to determine if there is credible information that they are being detained unlawfully or wrongfully, based on criteria which may include whether—

(1)United States officials receive or possess credible information indicating innocence of the detained individual;

(2)the individual is being detained solely or substantially because he or she is a United States national;

(3)the individual is being detained solely or substantially to influence United States Government policy or to secure economic or political concessions from the United States Government;

(4)the detention appears to be because the individual sought to obtain, exercise, defend, or promote freedom of the press, freedom of religion, or the right to peacefully assemble;

(5)the individual is being detained in violation of the laws of the detaining country;

(6)independent nongovernmental organizations or journalists have raised legitimate questions about the innocence of the detained individual;

(7)the United States mission in the country where the individual is being detained has received credible reports that the detention is a pretext for an illegitimate purpose;

(8)the individual is detained in a country where the Department of State has determined in its annual human rights reports that the judicial system is not independent or impartial, is susceptible to corruption, or is incapable of rendering just verdicts;

(9)the individual is being detained in inhumane conditions;

(10)due process of law has been sufficiently impaired so as to render the detention arbitrary; and

(11)United States diplomatic engagement is likely necessary to secure the release of the detained individual.

(b)(1)Upon a determination by the Secretary of State, based on the totality of the circumstances, that there is credible information that the detention of a United States national abroad is unlawful or wrongful, and regardless of whether the detention is by a foreign government or a nongovernmental actor, the Secretary shall—

(A)expeditiously transfer responsibility for such case from the Bureau of Consular Affairs of the Department of State to the Special Presidential Envoy for Hostage Affairs; and

(B)not later than 14 days after such determination, notify the Committee on Foreign Relations of the Senate, the Select Committee on Intelligence of the Senate, the Committee on Foreign Affairs of the House of Representatives, and the Permanent Select Committee on Intelligence of the House of Representatives of such determination and provide such committees with a summary of the facts that led to such determination.

(2)The notification described in paragraph (1)(B) may be classified, if necessary.

(c)(1)(A)The Secretary of State shall submit to the appropriate congressional committees an annual report with respect to United States nationals for whom the Secretary determines there is credible information of unlawful or wrongful detention abroad.

(B)The report required under this paragraph shall be submitted in unclassified form, but may include a classified annex if necessary.

(2)The report required under paragraph (1) shall include current estimates of the number of individuals so detained, as well as relevant information about particular cases, such as—

(A)the name of the individual, unless the provision of such information is inconsistent with section 552a of title 5 (commonly known as the “Privacy Act of 1974”);

(B)basic facts about the case;

(C)a summary of the information that such individual may be detained unlawfully or wrongfully;

(D)a description of specific efforts, legal and diplomatic, taken on behalf of the individual since the last reporting period, including a description of accomplishments and setbacks; and

(E)a description of intended next steps.

(d)(1)(A)Not later than 180 days after December 27, 2020, and after consulting with relevant organizations that advocate on behalf of United States nationals detained abroad and the Family Engagement Coordinator established pursuant to section 1741b(c)(2) of this title, the Secretary of State shall provide resource guidance in writing for government officials and families of unjustly or wrongfully detained individuals.

(B)The resource guidance required under subparagraph (A) should include—

(i)information to help families understand United States policy concerning the release of United States nationals unlawfully or wrongfully held abroad;

(ii)contact information for officials in the Department of State or other government agencies suited to answer family questions;

(iii)relevant information about options available to help families obtain the release of unjustly or wrongfully detained individuals, such as guidance on how families may engage with United States diplomatic and consular channels to ensure prompt and regular access for the detained individual to legal counsel, family members, humane treatment, and other services;

(iv)guidance on submitting public or private letters from members of Congress or other individuals who may be influential in securing the release of an individual; and

(v)appropriate points of contacts, such as legal resources and counseling services, who have a record of assisting victims’ families.

(2)(A)For the purpose of facilitating meetings between the United States Government and the family members of United States nationals unlawfully or wrongfully detained abroad, the Secretary shall provide financial assistance to cover the costs of travel to and from Washington, D.C., including travel by air, train, bus, or other transit as appropriate, to any individual who—

(i)is—

(I)a family member of a United States national unlawfully or wrongfully detained abroad as determined by the Secretary under subsection (a); or

(II)an appropriate individual who—

(aa)is approved by the Special Presidential Envoy for Hostage Affairs; and

(bb)does not represent in any legal capacity a United States national unlawfully or wrongfully detained abroad or the family of such United States national;

(ii)has a permanent address that is more than 50 miles from Washington, D.C.; and

(iii)requests such assistance.

(B)(i)For each such United States national unlawfully or wrongfully detained abroad, the financial assistance described in subparagraph (A) shall be provided for not more than 2 trips per fiscal year, unless the Special Presidential Envoy for Hostage Affairs determines that a third trip is warranted.

(ii)Any trip described in clause (i) shall—

(I)consist of not more than 2 family members or other individuals approved in accordance with subparagraph (A)(i)(II), unless the Special Presidential Envoy for Hostage Affairs determines that circumstances warrant an additional family member or other individual approved in accordance with subparagraph (A)(i)(II) and approves assistance to such third family member or other individual; and

(II)not exceed more than 2 nights lodging, unless the Special Presidential Envoy for Hostage Affairs determines that circumstances warrant an additional night, which shall not exceed the applicable government rate.

(C)If other United States Government assistance is unavailable, the Secretary may provide to a United States national unlawfully or wrongfully detained abroad as determined by the Secretary under subsection (a), United States assistance, as necessary, for return travel to the United States upon release of such United States national.

(3)(A)The Secretary shall seek to make available physical health services, mental health services, and other support as appropriate, including providing information on available legal or financial resources, to—

(i)any United States national unlawfully or wrongfully detained abroad; and

(ii)any family member of such United States national.

(B)(i)For any support described in subparagraph (A) for an individual described in clause (i) or (ii) of such subparagraph that commences following the return of a United States national who was unlawfully or wrongfully detained abroad, such support shall be made available for up to 5 years from the date on which any individual identified in subparagraph (A) chooses to avail themselves of the support described in that subparagraph, unless the Special Presidential Envoy for Hostage Affairs determines that circumstances warrant extending such support.

(ii)The time limitation under clause (i) does not apply to any support provided during the pendency of the detention of a United States national unlawfully or wrongfully detained abroad.

(4)The Secretary shall notify the Committee on Foreign Relations of the Senate, the Committee on Foreign Affairs of the House of Representatives, and the Committees on Appropriations of the Senate and the House of Representatives not later than 14 days after such time that total expenditures to carry out paragraphs (2) and (3) in any fiscal year surpass $250,000 for any fiscal year.

(5)Funds authorized to be appropriated for the Department of State, which may include funds made available for unforeseen emergencies arising in the diplomatic and consular service, may be used to provide the support authorized by this section.

(6)Not later than 90 days after the end of each fiscal year, the Secretary shall submit to the Committees on Foreign Relations and Appropriations of the Senate and the Committee on Foreign Affairs and Appropriations of the House of Representatives a report that includes—

(A)a detailed description of expenditures made pursuant to paragraphs (2) and (3);

(B)a detailed description of types of support provided pursuant to paragraph (3), provided that such description does not identify any individuals receiving any physical or mental health support, in order to protect their privacy; and

(C)the number and location of visits outside of Washington, D.C., during the prior fiscal year made by the Special Presidential Envoy for Hostage Affairs to family members of each United States national unlawfully or wrongfully detained abroad.

(7)The authority and requirements under paragraphs (2), (3), (4), and (5) shall terminate on December 31, 2027.

(8)In this subsection, the term “family member” means a spouse, father, mother, child, brother, sister, grandparent, grandchild, aunt, uncle, nephew, niece, cousin, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.

(e)(1)(A)Not less frequently than every 180 days, the Assistant Secretary for the Bureau of Consular Affairs and the Special Presidential Envoy for Hostage Affairs shall review the cases where there is potential credible information that any United States national is being detained wrongfully and which has been identified through official government channels to both bureaus.

(B)Not later than 30 days after each review under subparagraph (A), the Assistant Secretary of State for Consular Affairs and the Special Presidential Envoy for Hostage Affairs shall jointly submit to Congress a classified report identifying the United States nationals identified as a result of the review in subparagraph (A) detained overseas who have not, as of the date of the report, been determined by the Secretary to be unlawfully or wrongfully detained.

(C)In the case of a United States national detained overseas identified in the report under subparagraph (B), the Assistant Secretary of State for Consular Affairs shall notify a family member (as that term is defined in subsection (d)(8)) or the legal representative of the United States national not later than 30 days after the transmittal of the report required by subparagraph (B).

(2)(A)Except as provided in subparagraph (B) and to the extent practicable, not later than 180 days after the date on which the Secretary of State receives an assessment from the Special Presidential Envoy for Hostage Affairs or the head of any other relevant bureau of the Department of State that credible information exists that a United States national is being detained unlawfully or wrongfully, the Secretary shall determine whether the United States national is in fact being unlawfully or wrongfully detained.

(B)(i)The Secretary may waive the requirement under subparagraph (A) to make an unlawful or wrongful detention determination if the Secretary—

(I)determines that making such a determination may jeopardize the safety or interests of the United States national being detained abroad or the national security interests of the United States; and

(II)submits to Congress a classified report describing the reasons for the waiver.

(ii)A waiver under clause (i) shall expire on the date that is 180 days after the date on which the Secretary submits the report on the waiver to Congress pursuant to clause (i)(II).

(iii)The Secretary may renew a waiver granted pursuant to clause (i) in the manner provided under such clause.

(f)Upon the release of a United States national determined to be unlawfully or wrongfully detained abroad and the return of that national, the President shall issue to that national a letter, to be known as a “declaration of invalidity”, that officially declares the detention abroad of the national as invalid for the purpose of completing any documentation that warrants a background investigation or review of prior offenses, such as a conviction.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2024—Subsec. (d)(2)(B)(ii)(II). Pub. L. 118–159, § 7701(1), inserted “unless the Special Presidential Envoy for Hostage Affairs determines that circumstances warrant an additional night,” after “lodging,”. Subsec. (d)(4). Pub. L. 118–159, § 7701(2), substituted “not later than 14 days after such time that total expenditures to carry out paragraphs (2) and (3) in any fiscal year surpass $250,000 for any fiscal year” for “of any amount spent above $250,000 for any fiscal year to carry out paragraphs (2) and (3)”. Subsec. (e). Pub. L. 118–159, § 7707, added subsec. (e). Subsec. (f). Pub. L. 118–159, § 7708, added subsec. (f). 2023—Subsec. (d). Pub. L. 118–31, § 6409(1), substituted “Resources for United States nationals unlawfully or wrongfully detained abroad” for “Resource guidance” in heading. Subsec. (d)(1). Pub. L. 118–31, § 6409(2), substituted “Resource guidance” for “Establishment” in heading, and designated existing provisions as subpar. (A) and inserted heading. Subsec. (d)(1)(B). Pub. L. 118–31, § 6409(5), substituted “subparagraph (A)” for “paragraph (1)”. Pub. L. 118–31, § 6409(4), which directed the redesignation of “paragraph (2) as subparagraph (B)”, without specifying the par. to which subpar. (B) was to be redesignated, and the realignment of margins, was executed by redesignating par. (2) as subpar. (B) of par. (1), to reflect the probable intent of Congress, and realigning margins. Subsec. (d)(2). Pub. L. 118–31, § 6409(6), added par. (2). Former par. (2) redesignated (1)(B). Pub. L. 118–31, § 6409(3), which directed the redesignation of “subparagraphs (A), (B), (C), (D), and (E) and clauses (i), (ii), (iii), (iv), and (v), respectively,” and the realignment of margins, was executed by redesignating subpars. (A) to (E) as cls. (i) to (v), respectively, to reflect the probable intent of Congress, and realigning margins. Former par. (2) redesignated (1)(B). Subsec. (d)(3) to (8). Pub. L. 118–31, § 6409(6), added pars. (3) to (8). 2022—Subsec. (a). Pub. L. 117–263, § 9102(1), inserted “, as expeditiously as possible,” after “review” in introductory provisions. Subsec. (b). Pub. L. 117–263, § 9102(2), amended subsec. (b) generally. Prior to amendment, text read as follows: “Upon a determination by the Secretary of State, based on the totality of the circumstances, that there is credible information that the detention of a United States national abroad is unlawful or wrongful, and regardless of whether the detention is by a foreign government or a nongovernmental actor, the Secretary shall transfer responsibility for such case from the Bureau of Consular Affairs of the Department of State to the Special Envoy for Hostage Affairs created pursuant to section 1741a of this title.”

Statutory Notes and Related Subsidiaries

Short Title

Pub. L. 116–260, div. FF, title III, § 301, Dec. 27, 2020, 134 Stat. 3091, provided that: “This subtitle [subtitle A (§§ 301–308) of title III of div. FF of Pub. L. 116–260, enacting this subchapter] may be cited as the ‘Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act’.”

§1741 Assistance for United States Nationals Unlawfully or Wrongfully Detained Abroad