{"id":71750,"date":"2020-12-01T01:24:09","date_gmt":"2020-12-01T01:24:09","guid":{"rendered":"https:\/\/one.sightlinemg.com\/armytimes\/uncategorized\/2020\/12\/01\/inside-the-case-against-isis-militants-suspected-in-the-deaths-of-western-hostages\/"},"modified":"2026-08-08T13:43:51","modified_gmt":"2026-08-08T13:43:51","slug":"inside-the-case-against-isis-militants-suspected-in-the-deaths-of-western-hostages","status":"publish","type":"post","link":"https:\/\/one.sightlinemg.com\/armytimes\/flashpoints\/2020\/12\/01\/inside-the-case-against-isis-militants-suspected-in-the-deaths-of-western-hostages\/","title":{"rendered":"Inside the case against ISIS militants suspected in the deaths of Western hostages"},"content":{"rendered":"\n

WASHINGTON \u2014 As two Islamic State militants faced a judge in Virginia last month, Diane Foley listened from home through a muffled phone connection and strained to make out the voices of the men prosecutors say kidnapped her son before he was murdered. <\/p>\n\n\n\n

Alexanda Kotey and El Shafee Elsheikh stand accused of belonging to an ISIS cell dubbed \u201cthe Beatles,\u201d<\/a> an incongruously lighthearted nickname for British citizens blamed for the jailing, torture and murder of Western hostages in Syria.<\/p>\n\n\n\n

After geopolitical breakthroughs and stalemates, military actions in Syria and court fights in London, the Justice Department\u2019s most significant terrorism prosecution in years<\/a> was finally underway. For Foley, who months earlier had pleaded with Attorney General William Barr to pursue justice by forswearing the death penalty<\/a>, the fact the case was proceeding at all felt miraculous.<\/p>\n\n\n\n

\u201cWe\u2019d met so many blocks over the years, I couldn\u2019t believe it was happening,\u201d Foley said. \u201cI was in awe of it, really, and almost didn\u2019t trust it \u2014 a bit incredulous. Is this really happening?\u201d <\/p>\n\n\n\n

The prosecution is a counterterrorism success in the waning weeks of the Trump administration. But it almost didn\u2019t happen. <\/p>\n\n\n\n

Interviews with 11 people connected to the case make clear the hurdles along the way, including a death penalty dispute that required two normally close allies, the U.S. and U.K., to navigate fundamental differences in criminal justice systems. In the end, the interviews show, grieving families reached a gradual consensus to take capital punishment off the table while a key commitment by Barr to do the same enabled the U.S. to obtain crucial evidence it needed.<\/p>\n\n\n\n

At another time, the case might not have even been handled in civilian courts. After the Sept. 11 attacks, the Republican-led Justice Department favored detaining foreign fighters at the U.S. base in Guantanamo Bay, Cuba, for military tribunals. But that approach changed. Now federal prosecutors are pursuing the highest-profile terrorism case since trials over the Boston Marathon bombing and Benghazi attack, aiming to secure convictions and punishments that can keep the men, in their 30s, imprisoned for life.<\/p>\n\n\n\n

\u201cThere was never a time when I thought we didn\u2019t have any case,\u201d said John Demers, assistant attorney general for national security. But, \u201cwe didn\u2019t want to bring them here unless we had really good charges, a really strong case, and ultimately expected a conviction that was going to result in a very significant prison sentence.\u201d<\/p>\n\n\n\n

The group of militants, called \u201cthe Beatles\u201d by their captives because of their British accents, came to embody ISIS barbarism with the 2014 release of grisly propaganda videos depicting the beheadings of American hostages. The first showed James Foley<\/a>, captured as a freelance journalist covering Syria\u2019s civil war, kneeling in the desert in an orange jumpsuit beside a masked man in black brandishing a knife to his throat.<\/p>\n\n\n\n

The beheadings were part of a reign of terror that officials say also involved waterboarding, mock executions and electric shocks. Elsheikh once videotaped the shooting of a Syrian hostage as Kotey directed hostages to watch while holding signs pleading for their release, prosecutors say. <\/p>\n\n\n\n

The pair also coordinated ransom demands, the indictment says. An email to the Foleys<\/a> tauntingly told them the U.S. government treated them \u201clike worthless insects.\u201d <\/p>\n\n\n\n

An airstrike killed the group\u2019s most notorious member, who had killed Foley and was known by the moniker of \u201cJihadi John.\u201d<\/a> Another was prosecuted in Turkey.<\/p>\n\n\n\n

That left Kotey and Elsheikh, who were captured in Syria in 2018 by American-backed forces. Weeks later, they appeared unapologetic while speaking to The Associated Press at a Kurdish security center, denouncing the U.S. and Britain as hypocrites who wouldn\u2019t give them a fair trial. <\/p>\n\n\n\n

Inside the Justice Department, officials weighed whether the men should be tried in the U.K. or U.S. or even transferred to Guantanamo, which then-Attorney General Jeff Sessions had called a \u201cvery fine place\u201d even though prosecutions there have floundered, lagging behind the speedier justice of American courts.<\/p>\n\n\n\n

U.S. officials initially leaned toward a U.K. prosecution. British authorities had accumulated compelling evidence during their own investigation and U.S. policy encouraged other nations to repatriate and prosecute their citizens who\u2019d joined IS.<\/p>\n\n\n\n

Yet the U.K., which had stripped the men of their British citizenship, resisted doing the case in part over concerns about the ability to get convictions and significant prison sentences in British courts. <\/p>\n\n\n\n

Once that position became clear, officials coalesced around bringing the men to America, said State Department counterterrorism coordinator Nathan Sales. But the British balked at sharing evidence with U.S. prosecutors without assurances they wouldn\u2019t impose the death penalty, which was abolished in the U.K. That was an impediment for American officials, who say they considered Britain\u2019s evidence vital in tracing the men\u2019s travel and path of radicalization. <\/p>\n\n\n\n

They decided they wouldn\u2019t do the case without that evidence, Demers said.<\/p>\n\n\n\n

The British later relented and agreed to share evidence without any assurances. But Elsheikh\u2019s mother sued over the evidence transfer, delaying the case well over a year. Last March, a British court effectively blocked the evidence-sharing over the death penalty issue, a hurdle U.S. officials assumed might require additional litigation to overcome.<\/p>\n\n\n\n

Despite the ruling, prosecutors pressed forward. G. Zachary Terwilliger, the U.S. attorney for the Eastern District of Virginia, whose office is handling the case, was among those arguing internally that prosecuting the defendants was more important than leaving the death penalty on the table.<\/p>\n\n\n\n

\u201cYou certainly can make an argument, and maybe it\u2019s not even a close call, that capital punishment would have been appropriate given the horrific nature of this crime,\u201d Terwilliger said. But, \u201cgetting justice for the victims was paramount to me.\u201d<\/p>\n\n\n\n

The families, too, began uniting around the idea of removing the death penalty from consideration. <\/p>\n\n\n\n

\"In
In this June 19, 2019, file photo, Diane Foley, mother of journalist James Foley, who was killed by the Islamic State terrorist group in a graphic video released online, speaks to the Associated Press during an interview in Washington. (Manuel Balce Ceneta\/AP)<\/figcaption><\/figure>\n\n\n\n

That had long been Diane Foley\u2019s position. The most vocal of the group, she met regularly over the years with government officials and cultivated high-level Washington contacts like her hometown senator, Jeanne Shaheen of New Hampshire, with whom she co-authored a 2019 newspaper op-ed warning against \u201cimpunity for these monsters.\u201d<\/p>\n\n\n\n

Still, the budding consensus in recent months was notable because the families had not always shared the same perspective of the case.<\/p>\n\n\n\n

The executions of Foley and two other hostages, Steven Sotloff and Peter Kassig, were documented in propaganda videos, the men\u2019s fates apparent to the world. But the circumstances of the death of a fourth, Kayla Mueller, who prosecutors say was sexually abused<\/a> by late ISIS leader Abu Bakr al-Baghdadi<\/a>, were less established and her parents initially believed keeping the death penalty on the table could be leverage to get answers. <\/p>\n\n\n\n

Mueller\u2019s mother, Marsha, said in a text message that the couple had not wanted anyone to die but was eager for information about Kayla. <\/p>\n\n\n\n

Ultimately, though, she concluded: \u201cThe other families who we care so deeply for wanted the men brought here and this seemed to be the only way they would come.\u201d<\/p>\n\n\n\n

Meanwhile, current and former FBI officials who were helping the families, including the head of the bureau\u2019s hostage recovery cell, encouraged them to speak out in unison to prod the Trump administration toward prosecution. Ali Soufan, a former FBI counterterrorism agent who\u2019d partnered with Mueller\u2019s parents to investigate Kayla\u2019s death, made the case that waiving the death penalty was essential for cooperating with the U.K. and even customary in international terrorism cases like this one.<\/p>\n\n\n\n

Other options were hardly optimal. A trial in Iraq, where the men had been held in U.S. military custody<\/a> over the past year, could produce a human rights outcry creating empathy for the men. The proceedings could also result in their release, or potentially execution if they were convicted.<\/p>\n\n\n\n

Concerned a U.S. prosecution might not happen at all, or that the men might be left in Iraq, the families accelerated their public advocacy. In July, all four signed onto an opinion piece in The Washington Post imploring the U.S. to prosecute the pair as a message that anyone who harms American citizens \u201cwill not escape.\u201d That month, NBC News aired an interview with the men in which they admitted involvement in Mueller\u2019s captivity.<\/p>\n\n\n\n

When Foley met with Barr in 2019, he said he shared her desire for accountability. But she said he and other Justice Department officials were firm in their convictions that the death penalty, a punishment Barr had brought back after a 16-year federal government hiatus, was merited.<\/p>\n\n\n\n

Last summer, though, as the families conveyed their wishes to remove death from consideration and as the case dragged on without obvious resolution, Barr was ready to break the logjam.<\/p>\n\n\n\n

\u201cI don\u2019t know if it was the deciding factor or not, but I think it did help when we finally spoke up again and said, \u2018Please. Please bring them to the U.S,\u2019\u201d Foley said. \u201cIf you need that evidence and you need to waive the death penalty, please do it.\u2019\u201d<\/p>\n\n\n\n

A senior Justice Department official prepared Foley for the news about to break, writing in an Aug. 14 email that once the U.S. message is delivered and becomes public, \u201cwe are sure it will generate a lot of attention and discussion \u2014 and that many will be interested to hear from all of you.\u201d<\/p>\n\n\n\n

That happened days later with the release of Barr\u2019s letter to U.K. Home Secretary Priti Patel. In it, he committed to forgo the death penalty but also issued an ultimatum: If the Justice Department received Britain\u2019s evidence by Oct. 15, it would proceed with prosecution. If not, it would transfer the men to Iraqi custody for prosecution.<\/p>\n\n\n\n

\u201cThat was a real option. It wasn\u2019t posturing,\u201d Demers said. \u201cI didn\u2019t know if the U.K. could do everything it needed to do in time to get us that evidence.\u201d <\/p>\n\n\n\n

The evidence came, resulting in a 24-page indictment with counts punishable by life imprisonment. <\/p>\n\n\n\n

Justice Department prosecutors announced their case on Oct. 7 as the men were flown to Dulles International Airport and taken to jail, where because of the pandemic they faced a judge via video link. They have pleaded not guilty.<\/p>\n\n\n\n

As Foley listened to court proceedings she once doubted would ever come, she couldn\u2019t help but wonder if, under different circumstances, the men might have been friends with James, who years earlier had taught jail inmates.<\/p>\n\n\n\n

But she also is gratified.<\/p>\n\n\n\n

\u201cTo my last dying breath, I will do my best to bring some accountability and justice for the horror of the murders of these four Americans.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

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