By Adam Goldman, Eric Schmitt and Charlie Savage
February 28, 2018
The British government wants the Trump administration to provide assurances that American prosecutors will not seek the death penalty against two British Islamic State suspects who were recently captured in Syria — and is threatening to withhold important evidence about them as leverage, according to officials familiar with the deliberations.
The British are also insisting that the United States promise to prosecute the two men in a civilian court, rather than taking them to the Guantánamo Bay wartime prison, the officials said.
The two men, Alexanda Kotey and El Shafee Elsheikh, are believed to be half of a cell of four British jihadists called the Beatles, who played a central role in torturing and killing Western hostages, including several Americans.
Mr. Kotey and Mr. Elsheikh were the last members of the group still at large until their recent capture in Syria by a Kurdish militia, which is holding them. Recently, the British defense secretary, Gavin Williamson, said his government did not want to take back the two men, who have been stripped of British citizenship, so the United States is expected to eventually take custody of them.
But the Trump administration is holding off on doing so until it figures out how it will handle them, according to several American officials. While the American military has interrogated Mr. Kotey and Mr. Elsheikh for intelligence purposes, it has not yet read them Miranda warnings and re-interviewed them in hopes of eliciting confessions that could be used as courtroom evidence.
Because the captors wore masks around hostages, some of whom survived, some courtroom evidence may consist of witnesses identifying at least one of the men by his voice, according to a former hostage and other people familiar with the F.B.I.’s long-running investigation. The British government has other information about the men’s backgrounds, associations, radicalization, movements and activities that could significantly strengthen that case.
An official at the British Embassy in Washington declined to specifically address questions about Mr. Kotey and Mr. Elsheikh and whether London was seeking restrictions in the case, but said that the British government was working closely with the United States to ensure that justice is served.
“Where there is evidence that crimes have been committed, foreign fighters should be brought to justice in accordance with due legal process, regardless of their nationality,” the official said. “We continue to work extremely closely with the U.S. government on this issue, sharing our views, as we do on a range of national security issues and in the context of our joint determination to tackle international terrorism and combat violent extremism.”
A Justice Department spokesman declined to comment.
Britain has abolished the death penalty and, like many European countries, does not like the American policy of holding people indefinitely at Guantánamo. Its government negotiated with the Bush administration for the return of its citizens who had been taken there in the first few years of the prison operation.
President Trump recently issued an executive order to keep the Guantánamo prison open, although his administration so far has taken no new detainees there. Senator Lindsey Graham, a South Carolina Republican who is a proponent of using wartime detention for terrorism cases, has been pushing the administration to take Mr. Kotey and Mr. Elsheikh to Guantánamo.
But Defence Secretary Jim Mattis, whom Mr. Trump has tasked with leading a policy review about what to do with newly captured terrorism suspects, does not want the military to take on the headache of holding the men in long-term detention and prosecuting them in the troubled military commissions system, the officials said.
Mr. Mattis’s reluctance, coupled with the British demands, means bringing Mr. Kotey and Mr. Elsheikh to American soil for civilian court prosecution is seen as far more likely. The Justice Department is now trying to decide whether the Southern District of New York or the Eastern District of Virginia would handle the prosecution, the officials said.
Some prosecutors and F.B.I. agents in New York have argued that they should get the case because their area of operations includes Western Europe, and the suspects are Londoners. But their counterparts in Virginia and the F.B.I.’s Washington Field Office have already been handling most of the casework related to the killings of American hostages in Syria, according to an official familiar with the deliberations.
In February 2016, for example, federal prosecutors in Virginia charged the wife of an Islamic State leader in the death of Kayla Mueller, an American, although the United States military transferred her to the Iraqi justice system.
Ms. Mueller was kidnapped in August 2013 and is believed to have been sexually abused by a leader of the Islamic State, which later said she died in an airstrike in early 2015. The British-accented captors tortured prisoners under their control, according to former hostages; Mr. Kotey is suspected of being a particularly brutal one whom the prisoners called George.
The parents of four Americans who were kidnapped by the Islamic State and abused in various ways before their killing — Ms. Mueller and three men who were beheaded, James Foley, Steven Sotloff and Peter Kassig — recently wrote an Op-Ed in The New York Times calling on the United States government to prosecute the suspects in civilian court and not to seek the death penalty.
“We want the world to know that we agree with the longstanding British government position that it would be a mistake to send killers like these to the military prison at Guantánamo Bay, or to seek the death penalty in court,” they wrote.
“Either path would make them martyrs in the eyes of their fanatic, misled comrades in arms — the worst outcome,” they added. “Instead, they should be tried in our fair and open legal system, or in a court of international justice, and then spend the rest of their lives in prison.”