(Editor’s note: This article was originally published on Aug. 27, 2020. The Addendum below was added on Aug. 28, 2020.)
Attorney General William Barr announced two troubling death penalty decisions last week in high-profile terrorism cases, one regarding two Islamic State suspects and another on the so-called Boston Marathon bomber. Each underscores the need to ensure fair trials and end capital punishment, even for the most heinous crimes, such as acts of terrorism.
In one sense, Barr’s first decision, on August 19, is welcome news. Barr announced that the Department of Justice will waive the death penalty for ISIS suspects El Shafee Elsheikh and Alexanda Kotey if the United Kingdom shares evidence that U.S. prosecutors consider key to convicting them in U.S. federal court. The U.K. Supreme Court had frozen the evidence transfer over concerns that the U.S. would apply the death penalty in their case. On Wednesday, the Supreme Court lifted that stay in response to Barr’s assurance, potentially clearing the way for the pair to be prosecuted in the U.S.
Elsheikh, 32, and Kotey, 36, were members of a notorious ISIS quartet, dubbed “The Beatles” by their hostages because of their British accents. “The Beatles” are accused of beheading 27 hostages and torturing many more. The two men have been detained without due process since their capture in Syria in January 2018, first by the Kurdish-led, U.S.-backed Syrian Democratic Forces in northeast Syria and since last October by the U.S. military in Iraq. In 2018, the U.K. revoked the pair’s citizenship.
While the U.K. Home Office has yet to respond to the court’s ruling, it is expected to share the intelligence with the U.S. If that leads to fair trials, the developments would be a victory for victims’ families and death penalty foes alike. In freezing the evidence transfer last March, the U.K. Supreme Court had found that sharing evidence about Elsheikh and Kotey absent assurances they would not be executed would violate U.K. data protection law. The U.K. abolished the death penalty a half-century ago.
However, Barr’s offer included a dangerous caveat: He warned that if the U.K. does not share the evidence by October 15, he will transfer Elsheikh and Kotey to the custody of Iraq for prosecution in Iraqi courts—essentially outsourcing the very death sentences that he offered to forgo domestically. As Human Rights Watch, the United Nations and others have amply documented, Iraqi courts have, since 2014, handed down thousands of death sentences following convictions for ISIS membership in fundamentally flawed trials. In many cases, defendants’ confessions apparently were extracted through torture. Hundreds have been executed.
Iraq has not spared the death penalty for foreign ISIS suspects—a practice that, disturbingly, many governments that abolished capital punishment have only meekly protested. France, for example, has rebuffed rights groups’ calls to repatriate 11 Frenchmen sentenced to death in Iraq in 2019 for investigation and potential prosecution back home, although two alleged they were tortured or coerced to confess.
Handing over Elsheikh and Kotey to Iraqi custody would violate U.S. obligations under international human rights law as well as the laws of war, which prohibit the transfer of detainees to countries where they are at serious risk of torture or mistreatment. While the U.K. Supreme Court decision may have reduced the likelihood of such a transfer, the very idea that Barr would float the idea is cause for grave concern. Barr’s October ultimatum was also precarious—and arrogant—because he lacks authority to impose a deadline on another country’s highest court to determine whether its government’s actions comport with its domestic data protection laws.
In the Boston Marathon case, Barr said on August 20 that the Justice Department will appeal a federal appeals court ruling that, three weeks earlier, vacated the death sentence of Dzhokhar Tsarnaev, 27, who was convicted in the 2013 bombings at the Boston Marathon. The twin bombings killed three people, including an 8-year-old boy, and injured 264 others, many of them severely. The three-judge panel of the U.S. Court of Appeals for the First Circuit ruled that the judge presiding over Tsarnaev’s 2015 trial did not properly vet jurors for potential bias. It also found that the trial judge excluded evidence potentially showing that Tsarnaev, 19 at the time of the bombings, was swayed by his older brother Tamerlan Tsarnaev, considered the main perpetrator, to join him in the attack.
The panel did not rule against the death penalty per se. Rather, it sent the case back for a penalty-phase trial in which a new jury is to decide whether Tsarnaev should be executed or serve a life sentence. By appealing the ruling to the U.S. Supreme Court, Barr seeks to restore Tsarnaev’s death sentence and avoid a new penalty-phase trial. International human rights law explicitly prohibits the death penalty for anyone convicted in proceedings that do not meet fair trial standards.
Many victims’ families say they have suffered years of anguish waiting for justice against Elsheikh, Kotey, and Tsarnaev. But justice can never be served through biased juries or outsourcing prosecutions to foreign courts whose proceedings are fundamentally flawed and tainted by torture.
The stakes are particularly high in cases involving capital punishment, which should have been universally abolished long ago because of its inherent cruelty and finality. The right to life is fundamental under international human rights law. Article 6 of the International Covenant on Civil and Political Rights guarantees this right to all human beings, without distinction of any kind. While the Covenant permits capital punishment for murder, there is increasing recognition within U.N. treaty bodies and among U.N. experts that the death penalty “cannot be reconciled with full respect for the right to life” and that its abolition is “necessary.”
More than 170 countries, nearly 90 percent of the world’s total, have abolished or suspended the death penalty. So have half the states in the U.S. Massachusetts banned capital punishment in 1984 and has not carried out an execution since 1947. Tsarnaev faces execution because he was prosecuted in federal rather than state court.
Running counter to the movement toward universal abolition, some countries, including Bangladesh, Nigeria and Tunisia, have in recent years expanded the scope of the death penalty for terrorism cases or, in the case of Chad and Pakistan, lifted their death penalty moratoria for terrorist acts. Death sentences in terrorism-related cases often follow convictions in unfair trials, in many cases tainted by allegations of torture or using overbroad definitions of terrorism that can unjustly target political opponents, independent journalists, peaceful protesters, and members of religious or ethnic groups. This practice is apparent not only in Iraq but also in countries such as Bahrain, Egypt, and Saudi Arabia.
Capital punishment for defendants even fairly convicted of terrorism is also strategically short-sighted as it can glorify those executed in the eyes of their followers. Family members of hostages allegedly killed, kidnapped, or tortured by “The Beatles” have eloquently expressed this concern.
“I think that will just make them martyrs in their twisted ideology,” said Diane Foley, the mother of U.S. journalist James Foley. An ISIS video of Foley’s beheading in 2014 featured a third so-called “Beatle,” Mohammed Emwazi. He was killed the following year in a drone strike. (The fourth “Beatle,” Aine Davis, is serving a 7 ½-year prison sentence in Turkey.) Instead of being executed, Diane Foley said of Elsheikh and Kotey, “I would like them held accountable by sending them to prison for the rest of their lives.”
Tsarnaev apparently aspired to martyrdom. Just before his capture, prosecutors said, he wrote a note on the bloodstained wall of a boat where he was hiding, saying he was “jealous” of his brother Tamerlan, who had been killed during his apprehension by police four days after the Boston Marathon bombing. He asked God to also make him a “martyr” so he could join Tamerlan in Paradise.
Barr should hold firm on his assurance to waive the death penalty for Elsheikh and Kotey, regardless of whether the U.K. Home Office meets his October evidence-sharing deadline. He should retract altogether his threat to transfer the pair to Iraqi custody for prosecution and abstain from using this ultimatum under all circumstances in the future. Similarly, in the Boston Marathon case, Barr should drop his pursuit of the death penalty for Tsarnaev.
Holding Elsheikh, Kotey, and Tsarnaev to account for crimes they committed is essential. But the proceedings must be fair from start to finish. Rather than help perpetrate an inhumane punishment in proceedings that that don’t meet fair trial standards, whether in the U.S. or abroad, the U.S. should consider these cases an opportunity to end its recent resumption of federal executions after a 17-year hiatus.
Addendum: After this article was posted, the parents of Kayla Mueller, a U.S. aid worker whose ISIS captors allegedly included Elsheikh and Kotey, spoke Thursday night at the Republican National Convention. Carl and Marsha Mueller of Arizona gave an emotional account of their daughter’s captivity.
“Kayla was mostly held in a 12-by-12 cell in solitary confinement,” Carl Mueller said. “It was cold and dirty. ISIS terrorists shined bright lights in her face. They shaved her head. They beat her and tortured her. The leader of ISIS, Abu Bakr al-Baghdadi, raped her repeatedly.” Eighteen months after taking Kayla hostage in August 2013, Carl Mueller said, ISIS contacted the Muellers and told them her daughter, then 25, had been killed in an airstrike by the U.S.-led, anti-ISIS coalition. The circumstances of Mueller’s death have not been independently confirmed, but the family has said ISIS sent them photos of her body.
The parents’ speech was overtly political; Carl Mueller claimed that “if Donald Trump had been president when Kayla was captured, she would be here today.” He noted that the October 2019 raid under President Trump that killed al-Baghdadi was code-named after his daughter.
While neither parent mentioned Elsheikh or Kotey, the question now before the U.S. is the fate of the captors. The Muellers were among the families of ISIS victims allegedly abused by the two “Beatles” who have publicly opposed the death penalty for the pair, saying it “would make them martyrs in the eyes of their fanatic, misled comrades in arms—the worst outcome.” Instead, the families have called for Elsheikh and Kotey to serve life in prison following a “fair and open” trial. Barr should heed that call, for strategic reasons but legal and moral ones as well.