U.S. May Drop Death Penalty to Obtain Evidence on British ISIS Detainees

Attorney General William Barr has promised victims’ family members that, in exchange for information necessary to bring two British ISIS detainees believed responsible for the murders of four Americans, two British aid workers, and more than twenty others to trial in the United States, the Department of Justice (DOJ) will not seek the death penalty against them.

The Washington Post reported on July 31, 2020 that Barr told “senior administration officials” at a July 29 White House meeting that he would provide assurances to the United Kingdom that DOJ would not capitally prosecute Shafee El Sheikh and Alexanda Koteybe — two of four British-born ISIS members — if the British government agreed to provide important intelligence information about them. NBC News then reported that, during phone calls on August 6 with victims’ family members, Barr had promised to forego the death penalty to ensure that British intelligence information could be used in U.S. prosecutions against the men.

Kotay and El Sheikh are two of four ISIS members who intelligence authorities say were involved in 27 killings, including the videotaped beheadings of kidnapped American journalists James Foley and Steven Sotloff and aid worker Peter Kassig and the sexual assault and murder of aid worker Kayla Mueller. The four ISIS members were dubbed “the Beatles” because of their British accents. Kotay and El Sheikh are currently in U.S. military custody in Iraq. A third, Aine Lesley Davis, is in prison in Turkey serving a 7½-year sentence. Mohammed Emwazi, whom intelligence officials say was the leader of the group and is believed to have actually carried out the killings, was killed in a CIA drone attack in 2015.

On March 25, 2020, the Supreme Court of the United Kingdom unanimously issued a landmark decision under its telecommunications privacy act requiring British authorities to withhold from the United States any evidence that the U.S. could use to prosecute El Sheikh and Kotey because U.S. officials had refused to rule out seeking the death penalty against them. The Court declared that “[n]o further assistance should be given for the purpose of any proceedings” against the men “in the United States of America without the appropriate death penalty assurances.”

The families of the murdered Americans have been adamant about their desire to have Kotey and El Sheikh tried in the United States. Marsha Mueller, the mother of Kayla Mueller, noted that “they did so much horror to so many people. They need to be brought here. They need to be prosecuted. The other thing that’s really important to me about this is I need information about Kayla. We know so little about what happened to her.”

Once the Department of Justice makes a formal declaration that it will not seek the death penalty, it is up to the United Kingdom to decide whether to provide the intelligence information. “The ball will be in the UK’s court,” said Shirley Sotloff, the mother of Steven. “If we take the death penalty off the table — and we all agree on that — then it’s up to the Brits.“

El Sheikh is identified in the U.S. media as El Shafee Elsheikh. DPIC has used the spelling that appears in the lawsuit brought by his mother to block the use of British intelligence in any U.S. capital trial.