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.