The “British Invasion” of U.S. Counterterrorism Policy? On the “ISIS Beatles” Case
By Michael Thompson
On October 7, the Department of Justice announced an indictment against two members of the Islamic State of Iraq and Syria (ISIS), former British citizens Alexanda Amon Kotey and El Shafee Elsheikh, charging the two with taking part in the torture and beheading of four American citizens, as well as British and Japanese citizens. Kurdish-led forces seized Mr. Kotey and Mr. Elsheikh in January 2018, and the United States later transferred the men to a military base in Iraq. Kotey, Elsheikh, and two other ISIS militants were collectively known as “The Beatles,” a nickname their hostages gave them because of their British accents and history in the United Kingdom. Mr. Kotey and Mr. Elsheikh were the only remaining members of “The Beatles” whose status was in limbo: one member, Mohamed Emwazi (also known as “Jihadi John”), was killed in a drone strike in 2015; the other is being incarcerated in Turkey.
Mr. Kotey and Mr. Elsheikh’s prosecution in the United States represents multiple significant milestones. With the men being tried in the Eastern District of Virginia in Alexandria, this case “is the first use of the [United States] justice system to seek to hold Islamic State fighters accountable for the murder of American citizens.” As a policy matter, their prosecution is also a victory for those advocating for the greater use of Article III courts in prosecuting terrorism suspects.
But the case also represents the culmination of an extensive legal and policy battle that took place across the Atlantic.
The Legal and Policy Battle
During its investigation of Mr. Kotey and Mr. Elsheikh’s hostage killings, the United States made a mutual legal assistance request to the United Kingdom seeking evidence that British police uncovered about the men in an effort to try the two in America. Theresa May, who was then her country’s Secretary of State for the Home Department, was prepared to grant the request. However, Britain is a party to the European Convention on Human Rights, which prohibits the restoration of the death penalty – a punishment that Mr. Kotey and Mr. Elsheikh would face if tried in the United States. As a result, Ms. May made the customary request that her government would offer the evidence only if the Department of Justice made assurances to forgo the death penalty. Former Attorney General Jeff Sessions declined to make such assurances and insisted that the British government prosecute the men in their “home country.”
When the succeeding Home Secretary Sajid Javid acceded to the request, Mr. Elsheikh’s mother brought a lawsuit against Mr. Javid, arguing in part that the transfer of information violated the United Kingdom’s Data Protection Act of 2018. In March 2020, the Supreme Court of the United Kingdom unanimously held in favor of Mr. Elsheikh’s mother. Citing “concerning . . . political pressure from the [United States],” the Court criticized the United States’ position:
“[T]hat pressure does not appear to have taken into account, much less reflected, either the [United Kingdom’s] longstanding policy in this area nor the joint experience of the [United Kingdom and the United States] in the request for and the furnishing of such assurances. The statement [by a ‘very senior’ Trump Administration official that British ‘lobbying’ on the death penalty was ‘an irritant’] also raises questions as to whether pragmatic considerations, at the expense of a principled approach, might begin to influence the [United Kingdom’s] reaction to the demand that it should cease its ‘lobbying’ in relation to the death penalty assurances.”
The American Ultimatum
On August 18, the new Attorney General William Barr provided the assurances the United Kingdom sought. But he also served the British government an ultimatum: transfer the evidence to the Department of Justice by October 15, 2020, or the United States would give the men to Iraq for prosecution – a transfer of jurisdiction which would effectively lead to death sentences for Mr. Kotey and Mr. Elsheikh. The Queen’s Bench Division of the High Court of Justice later found in September that the Home Secretary was now “entitled to accede to the [mutual legal assistance] request” given the Department of Justice’s assurances. “Notwithstanding the barbaric nature of the [offenses] alleged,” the Court stated, “now that the death penalty assurance has been given it has become, as Sir James put it, ‘run of the mill.’”
Can the United States wantonly refuse death penalty assurances in future cases where evidence is held by a foreign government? Not successfully, at least based on the Supreme Court of the United Kingdom’s reasoning. What the “ISIS Beatles” episode demonstrates is that mutual legal assistance treaties, such as that brought into being by the United Kingdom and the United States, are a force to be reckoned with. To the extent that a foreign government’s interests are represented in the treaties, the agreements “ground” American counterterrorism initiatives in the policies that serve the international communities’ initiatives. It means that newer policy prerogatives will not run roughshod over longstanding experiences.