Atty. Gen. Barr's letter to the UK brings two ISIS fighters accused of beheading American journalists and aid workers closer to a U.S. trial.
The United States will not pursue the death penalty against two British Islamic State detainees who are accused of beheading American journalists and have been held in indefinite military detention in Iraq, if the United Kingdom agrees to turn over vital evidence in the case, Attorney General Bill Barr confirmed in a letter (PDF) sent Tuesday to U.K. Home Secretary Priti Patel.
The commitment not to pursue capital punishment for the detainees reverses two years of U.S. policy and opens the door for a resolution to the case by allowing the men, who have had their British citizenship revoked, to stand trial in the United States. If the U.K. agrees to Barr’s terms, it would cover all charges that the U.S. might bring against the men.
"We would hope and expect that, in light of this assurance, the evidence can and will now be provided promptly," Barr wrote, according to a copy of the letter obtained by Defense One. "Time is of the essence. Further delay is no longer possible if Kotey and Elsheikh are to be tried in the United States, and further delay is an injustice to the families of the victims."
Barr said that if the U.K. does not resolve its domestic legal hurdles and begin transferring the needed evidence to the United States by Oct. 15 — through what’s known as a Mutual Legal Assistance Treaty — then the United States would move to transfer custody of the two men to the Iraqi government for prosecution. In the United States, the two men would likely be tried under the broad set of criminal terrorism laws that American prosecutors have at their disposal. In Iraq, where courts have funneled hundreds of foreign ISIS suspects through rapid-fire terrorism trials that frequently end in guilty verdicts, they would almost certainly be executed.
Multiple U.S. officials had confirmed the contents of the letter to Defense One before a copy was obtained on Wednesday. A spokesman for the Department of Justice declined to comment.
Barr is also demanding a commitment from the U.K. to "provide ongoing cooperation with respect to such evidence for the duration of any legal proceedings," according to the letter. In return, Barr promised not only that U.S. prosecutors will not seek the death penalty, but that the United States will not carry out any death penalty that may be imposed by a U.S. judge, and that the United States will not transfer any evidence in the case to a third country that might impose the death penalty.
The case has been an ongoing source of friction between the U.S. and the U.K. Since their capture in 2018, the Trump administration has insisted that American prosecutors must be free to seek the death penalty if it were to try the two men in the United States. In order to bring charges, U.S. prosecutors need evidence held by the British government. But Britain abolished the death penalty in 1969 and British courts have blocked the government from cooperating in the case.
The two men, Alexanda Kotey and El Shafee Elsheikh, were part of an infamous cell of Islamic State fighters in Syria — known as “the Beatles” — who horrified the world with graphic videos of public beheadings used for ISIS propaganda in 2014. Among those killed by the group was James Foley, an American journalist who was beheaded in August of that year, and three other Americans: journalist Steven Sotloff and aid workers Peter Kassig and Kayla Mueller.
The group also included Mohammed Emwazi, known as “Jihadi John,” who was killed in an American drone stroke in 2015. A fourth member, Aine Lesley Davis, is imprisoned in Turkey on terrorism charges.
The letter is the first known confirmation that Barr has officially informed the UK of the U.S. decision to drop the pursuit of the death penalty. The Washington Post and the New York Times previously reported that Barr was willing to consider dropping the death penalty as a way to move the case forward, and last week, NBC News reported that Barr promised the families of Americans slain by the Beatles that he had decided to do so.
The UK initially shared some information about the case in 2018 with the Justice Department. But Elsheikh’s mother filed a lawsuit that has worked its way through British courts. She won an initial ruling in March that blocked further cooperation in the case on the grounds that the government had transferred the information inappropriately under the UK’s data privacy laws. Legal experts say testimony from British officials would almost certainly be necessary to successfully prosecute the two men. Litigation in the case is ongoing.
The families of the American victims also have opposed the death penalty for the two men, in part because they argue that it would turn the accused into martyrs, a propaganda coup for the Islamic State. They are also concerned that a U.S. insistence on the death penalty would allow the two men to get away with a lighter punishment elsewhere — or prevent American prosecutors from gaining access to the information they need to build an airtight case.
Shirley Sotloff, mother of Steven Sotloff, told Defense One on Wednesday that the families are "on the same page with taking the death penalty off the table. That's all I can say now."
Sen. Jeanne Saheen, D-N.H., a member of the Senate Armed Services Committee who has pushed for the suspects to face trial in the United States, called the news of Barr’s notice on Wednesday “encouraging.”
“The so-called ‘Beatles’ have been in legal limbo for far too long,” she said. “We owe this to the memories of James, Steven, Peter and Kayla. I’ve urged Attorney General Barr to do what’s necessary in this case.”
Kotey and Elsheikh have been held at Al Asad airbase in Iraq since October, where they were moved during the Turkish invasion of Syria last fall over concerns that there could be mass breakouts from the Kurdish-guarded prisons. The duo are part of a much larger problem that has become increasingly intractable for the United States. The American-backed Syrian Democratic Forces is still holding around 10,000 captured fighters in converted hospitals and school houses in Syria, and senior officials have been grappling with what to do with them for years. Most of the prisoners are from Iraq or Syria. But the administration has had little luck pressing European allies to take back and try the roughly 2,000 resident “foreign fighters” in their own courts.
“We’ve made very clear our expectation is that the places that these fighters are being detained may not be sustainable and that we need to work with each host country to bring those people back and bring them to justice back in their home,” Secretary of State Mike Pompeo said in July. “We’ve been consistent with that all across all the nations that have fighters that are there inside of Syria.”