Jus­tice lead­ers wary to try ISIS fighters in U.S., as prose­cu­tors push for case

The Washington Post Sunday - - POLITICS & THE NATION - BY ELLEN NAKASHIMA, MATT ZAPOTOSKY AND SOUAD MEKHENNET ellen.nakashima@wash­post.com matt.zapotosky@wash­post.com souad.mekhennet@wash­post.com

Jus­tice De­part­ment lead­ers are reluc­tant to rec­om­mend U.S.-based crim­i­nal tri­als for two Is­lamic State mil­i­tants cap­tured and de­tained in Syria, ac­cord­ing to Amer­i­can of­fi­cials who said that, even though fed­eral prose­cu­tors be­lieve they can win in court, it is un­clear whether there is suf­fi­cient ev­i­dence to se­cure con­vic­tions and lengthy pri­son terms.

At the same time, se­nior Trump ad­min­is­tra­tion of­fi­cials are adamant that Britain bears re­spon­si­bil­ity to pros­e­cute the men, Alexanda Kotey, 34, and El Shafee El­sheikh, 29, whose Bri­tish cit­i­zen­ships were re­voked over their al­leged af­fil­i­a­tion with an ISIS cell suspected of mur­der­ing Western­ers.

Fur­ther com­pli­cat­ing mat­ters, At­tor­ney Gen­eral Jeff Ses­sions would pre­fer that Kotey and El­sheikh be sent to the U.S. mil­i­tary de­ten­tion fa­cil­ity in Guan­tanamo Bay, Cuba, though he has rec­og­nized the suc­cess of fed­eral ter­ror­ism pros­e­cu­tions.

State De­part­ment of­fi­cials are wary of un­der­min­ing the U.S. gov­ern­ment’s po­si­tion that ter­ror­ist fighters cap­tured over­seas should be re­turned to their coun­tries of ori­gin.

The com­pli­cated U.S. pol­icy dis­cus­sion, and the im­passe be­tween the United States and Britain, is test­ing the pa­tience of the vic­tims’ fam­i­lies, who anx­iously await a de­ci­sion they hope will re­sult in jus­tice through a fair and open trial. They op­pose send­ing the men to Guan­tanamo, which they view as fuel for ter­ror­ists’ nar­ra­tive of abuse and mis­treat­ment by U.S. author­i­ties.

Slow­ing the process is a turnover in lead­er­ship in Lon­don, where a new home sec­re­tary just took of­fice, and in Washington, where John Bolton last month be­came Pres­i­dent Trump’s na­tional se­cu­rity ad­viser.

“We re­ally don’t have any commitment that the U.S. is going to ac­tu­ally take on their case,” said Diane Fo­ley, whose son, jour­nal­ist James Fo­ley, was be­headed by the Is­lamic State in 2014. Fo­ley and the rel­a­tives of three other de­ceased Amer­i­can hostages met in re­cent days with Bolton and As­sis­tant At­tor­ney Gen­eral for Na­tional Se­cu­rity John De­mers. The of­fi­cials were sym­pa­thetic lis­ten­ers, she said, but they could not of­fer much guid­ance. “It’s all very much still up in the air,” she said.

Trump is­sued an ex­ec­u­tive or­der in Jan­uary to leave Guan­tanamo open. At his di­rec­tion, De­fense Sec­re­tary Jim Mat­tis has de­vel­oped cri­te­ria for trans­fer­ring ter­ror­ist sus­pects cap­tured on the bat­tle­field to the pri­son, in­clud­ing that they be high-value and mem­bers of groups such as al-Qaeda or the Is­lamic State. The Pen­tagon also is ea­ger for the Bri­tish to take custody of Kotey and El­sheikh, in part to ease the pres­sure on the United States’ main ally in Syria, the Kur­dish­dom­i­nated Syr­ian Demo­cratic Forces, which has be­come taxed by hav­ing to de­tain hun­dreds of cap­tured for­eign fighters.

The fam­i­lies, Fo­ley said, hope to speak with Trump and Mat­tis.

The White House de­clined to com­ment, as did the Pen­tagon, Jus­tice De­part­ment and State De­part­ment. “We con­tinue to work ex­tremely closely with the U.S. gov­ern­ment on this is­sue . . . in the con­text of our joint de­ter­mi­na­tion to tackle international ter­ror­ism and com­bat vi­o­lent ex­trem­ism,” a Bri­tish gov­ern­ment spokesman said.

U.S. of­fi­cials say Kotey and El­sheikh be­longed to a four-per­son ISIS cell known as the Bea­tles, so named for the mem­bers’ Bri­tish ac­cents. The group held more than 20 Western hostages and tor­tured many of them. The most in­fa­mous was Mo­hammed Emwazi, bet­ter known as Ji­hadi John, who was killed in a 2015 drone strike in Syria. The fourth mem­ber, Aine Davis, was ar­rested in Tur­key, con­victed in 2017 and is in pri­son there.

U.S. prose­cu­tors have told their bosses they have ev­i­dence — with the most com­pelling ma­te­rial coming from Britain — to ob­tain life sen­tences on charges such as con­spir­ing to pro­vide ma­te­rial sup­port to ter­ror­ists with acts re­sult­ing in death and con­spir­ing to take hostages with acts re­sult­ing in death.

In a Fe­bru­ary memo to De­mers, at­tor­neys in the East­ern District of Vir­ginia in­di­cated the Bri­tish have voice analysis ev­i­dence against Kotey that could link him to the Bea­tles cell, which is im­por­tant be­cause the cap­tors wore masks while in the hostages’ pres­ence. In­ves­ti­ga­tors say wit­nesses would make voice iden­ti­fi­ca­tions, which might be but­tressed by cir­cum­stan­tial ev­i­dence, such as show­ing that the men used phrases around the hostages that they were known to use at other times.

“There is definitely enough ev­i­dence to put them on trial,” said one Bri­tish in­tel­li­gence of­fi­cial, speak­ing on con­di­tion of anonymity to dis­cuss a sen­si­tive mat­ter. The of­fi­cial de­clined to say how strong he felt the ev­i­dence was but added that, if they are con­victed and im­pris­oned, he fears they would “rad­i­cal­ize other pris­on­ers while we would have to pay for their pri­son time — not a great sce­nario.”

In­ves­ti­ga­tors also have gath­ered ev­i­dence of the men’s rad­i­cal­iza­tion dat­ing to the mid2000s. Nei­ther has de­nied be­long­ing to the Is­lamic State. Prose­cu­tors are hope­ful they could build a case that con­nects both to the mur­ders of Fo­ley, Kayla Mueller, Steven Sot­loff and Peter Kas­sig.

But se­nior ad­min­is­tra­tion of­fi­cials, in­clud­ing some in the Jus­tice De­part­ment, are less cer­tain. One ob­sta­cle, of­fi­cials say, is that the Bri­tish have placed re­quire­ments on shar­ing ev­i­dence, in­clud­ing a guar­an­tee that the men will not be sent to Guan­tanamo and that the death penalty won’t be sought.

Ses­sions, al­lud­ing to these de­mands, chided the Bri­tish gov­ern­ment late last month for its re­luc­tance to pros­e­cute the men. “I have been dis­ap­pointed, frankly, that the Bri­tish . . . are not will­ing to try the cases but pre­tend to tell us how to try them,” he said dur­ing con­gres­sional tes­ti­mony.

“What hap­pens if we bring them here and the pros­e­cu­tion is not suc­cess­ful?” one U.S. of­fi­cial said, de­scrib­ing the ques­tions of­ten asked within the ad­min­is­tra­tion. “Do we just re­lease them onto the streets of south­ern Man­hat­tan?” And if the United States agrees to pros­e­cute Kotey and El­sheikh, “how does that af­fect our abil­ity to per­suade other coun­tries” to take back their dozens of for­eign ter­ror­ist fighters if the Bri­tish don’t take their two?

For­mer na­tional se­cu­rity prose­cu­tors say they would take the risk. “I’d put my money on the assess­ment of the ca­reer ter­ror­ism prose­cu­tors rec­om­mend­ing fed­eral charges against these guys,” said Ni­cholas Lewin, who suc­cess­fully tried in the South­ern District of New York a num­ber of se­nior al-Qaeda fig­ures.

El Shafee El­sheikh, left, and Alexanda Kotey are shown af­ter their cap­ture in Syria.

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