More than six years after ISIS began its horrific public executions of American hostages, on Wednesday the U.S. government took one huge step toward justice for U.S. citizens. Alexanda Kotey and El Shafee Elsheikh, two ISIS members and former UK citizens, appeared in federal court to face 8 felony counts related to the kidnapping and murder of Americans Jim Foley, Peter Kassig, Kayla Mueller, and Steven Sotloff. If convicted, the two men could face life sentences in prison. That they are facing justice should come as no surprise, but what is shocking is that it took nearly three years from their capture to their first day in court.
Kotey and Elsheikh are the last remaining members of a four-person cell of ISIS hostage takers and executioners who abducted more than 20 Western hostages and executed three Americans – journalists Foley and Sotloff and aid worker Kassig – in addition to several hostages from other nations. Dubbed “the Beatles” for their British accents, the group was led by Mohammed Emwazi, who was killed in a 2015 U.S. drone strike, and also included Aine Davis, who was captured, tried, and sentenced to 7 years in prison by the Turkish government. Kotey and Elsheikh were captured in January 2018 by the Syrian Democratic Forces (SDF), the primary U.S. partner force in northeastern Syria, and held for two years, reportedly in Syria and Iraq.
It should not be surprising that we’re on the verge of justice. Since 9/11, the U.S. government’s counterterrorism community, working across three administrations, has worked relentlessly to bring to justice those who have harmed Americans. Intelligence and military professionals hunted down and removed from the battlefield terrorist leaders and attack plotters, most notably al-Qaeda leader Osama bin Laden and ISIS Emir Abu Bakr al-Baghdadi. They staged high-risk overseas capture operations that have brought to justice terrorists involved in the 1998 bombings of U.S. embassies in Africa and the 2012 Benghazi attack. The FBI and Department of Justice prosecutors have arrested, tried, and convicted nearly 700 terrorists in U.S. courtrooms since 9/11. In this case, the United States relied on a partner force that it has trained, advised, and assisted over many years to capture two of its most wanted outlaws. Kotey and Elsheikh’s appearance in federal court this week was the result of the collective hard work of so many within our government to make sure that nobody can harm Americans and expect to escape justice.
What is surprising, however, is how long it took to get these two men into a federal court. They have been held in Syria and Iraq amid continued unrest, ISIS prison breaks, and outright combat between the SDF and Turkish military, raising concerns about the security of their detention. For a time, the U.S. government seemed to be leaning toward sending them to Guantanamo Bay. Former Attorney General Jeff Sessions reportedly pushed for them to be treated as enemy combatants and held at Guantanamo, and many speculated that President Trump would make good on his campaign promise to “load [Guantanamo] up with some bad dudes.” Sending them to Guantanamo and trying them in the immensely flawed military commission system would have been a disaster, as Josh Geltzer, Tess Bridgeman and I argued in 2018. In 2019, President Trump signaled that they would not go to Guantanamo, incredulously citing the more than $13 million per year cost of holding a detainee at the facility. Sessions also expressed his disappointment that the British government was not moving to prosecute its former citizens, who also had British blood on their hands.
But the biggest hang-up appears to have been within the Department of Justice, where there were reportedly conflicting views on the strength of the case, with the prosecutors assigned to the case urging swift prosecution and senior officials expressing more concern. Key to building a strong case was obtaining evidence held by the United Kingdom, but in March 2020, British courts halted the sharing of evidence because of the possibility that the United States would pursue the death penalty, which is prohibited under UK and European law. It was only in August, when Attorney General William Barr provided assurances that the government would not seek the death penalty, that the evidence was released to the United States, paving the way for their prosecution by the United States. Reasonable people can disagree on the death penalty – as a general matter or with regard to this case – but it’s a moot point if prosecutors can’t obtain the evidence they need for conviction in the first place.
And so, after exploring every other option, the ultimate disposition for Kotey and Elsheikh has become the one that was most obvious and tested and available all along – prosecution in U.S. federal court. Perhaps most importantly, it’s the option that the families of those murdered by ISIS advocated in powerful op-eds way back in February 2018, only weeks after the men were captured, and again in July of this year, shortly before the Department of Justice took the death penalty off the table. However long it took us to get here, this was the right place to land.
We’re in the final weeks of the presidential election, and it seems that no issue can escape politics, including recovering our hostages and bringing to justice those who harm them. But the capture and prosecution of Kotey and Elsheikh isn’t a story of politics. It’s a testament to the professionalism of the apolitical counterterrorism community and to dedication to the hostage mission across administrations. In its press release after charging Kotey and Elsheikh, the Department of Justice made a point to praise the more than eight years of hard work by the FBI, others across the government, and the international law enforcement community to bring these individuals to justice. I served at the National Security Council from 2013-2016, saw ISIS murder our people, and in the aftermath, worked with an extraordinary team of professionals from across the government to design and implement much-needed reforms to our hostage recovery enterprise. The Trump administration has continued these important efforts, with my successors at the National Security Council keeping hostage recovery a top priority and working tirelessly to bring home hostages and wrongfully detained Americans like Caitlan Coleman, Xiyue Wang, and many others. Wednesday’s news was just the latest win for that hard work, conducted by so many apolitical professionals, and prioritized across successive administrations. Let us hope that some missions can remain so important that they transcend politics.