Charging the 'Beatles': Inside the case against IS militants

WASHINGTON (AP) - When two Islamic State militants faced a judge in Virginia last month, Diane Foley listened from home over a hushed phone line and tried to make out the voices of prosecutors saying they had kidnapped their son before he was murdered.
Alexanda Kotey and El Shafee Elsheikh are charged with belonging to an ISIS cell called "The Beatles," an incongruously lighthearted nickname given to British citizens who are held responsible for the prison, torture and murder of Western hostages in Syria.
After geopolitical breakthroughs and stalemates, military actions in Syria and court battles in London, the Justice Department's most significant terrorism prosecution in years was finally underway. For Foley, who months earlier had asked Attorney General William Barr to bring justice by waiving the death penalty, the fact that the case was going on at all was a miracle.
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"We'd hit so many blocks over the years that I couldn't believe it was happening," said Foley. "I was really in awe of it and almost didn't trust him - a little incredulous. Is that really happening?"
Law enforcement has been a counter-terrorism success for the Trump administration in the past few weeks. But it almost didn't happen.
Interviews with eleven people linked to the case highlight the hurdles along the way, including a death penalty dispute that saw two normally close allies, the US and UK, overcome profound differences in criminal justice systems. Ultimately, the interviews show that grieving families reached a gradual consensus to take the death penalty off the table, while a key commitment from Barr to do the same allowed the US to obtain crucial evidence it needed.
At another point in time, the case may not even have been heard in civil courts. Following the 9/11 attacks, the Republican-led Justice Department advocated detaining foreign fighters at the US base in Guantanamo Bay, Cuba, in military courts. However, that approach changed. Now federal prosecutors are pursuing the best-known terrorism case since the Boston Marathon bombing and Benghazi attack, seeking convictions and sentences that could imprison men in their thirties for life.
"There was never a time when I thought we didn't have a case," said John Demers, assistant attorney general for national security. But "we didn't mean to bring her here unless we had really good charges, really." strong case and ultimately awaiting a conviction that would result in a very significant prison sentence. "
The group of militants, nicknamed "the Beatles" by their prisoners because of their British accents, embodied IS barbarism with the release of gruesome propaganda videos from 2014 depicting the beheadings of American hostages. The first featured James Foley, captured as a freelance journalist about the Syrian civil war, kneeling in an orange jumpsuit next to a masked man in black in the desert with a knife to his throat.
The beheadings were part of a reign of terror that officially included waterboarding, mock executions and electric shocks. Elsheikh once videotaped the shooting of a Syrian hostage when Kotey instructed the hostages to watch them while holding signs asking for their release, prosecutors said.
The couple also coordinated ransom demands, the indictment said. An email to the Foleys sneered them that the US government had treated them "like worthless insects."
An air strike killed the most notorious member of the group who killed Foley, known by the nickname "Jihadi John". Another was prosecuted in Turkey.
That left Kotey and Elsheikh, who were captured in Syria by American-backed forces in 2018. Weeks later, when they spoke to The Associated Press in a Kurdish security center, they did not appear to be apologetic and denounced the US and UK as hypocrites for not giving them a fair trial.
Within the Justice Department, officials weighed up whether the men should be tried in the UK or the US, or even transferred to Guantánamo, which then Attorney General Jeff Sessions had described as a "very nice place" even though prosecution had stalled there and behind the faster justice of the American courts.
US officials were initially prone to prosecution in the UK. The British authorities had gathered compelling evidence during their own investigation, and US policy encouraged other nations to repatriate and prosecute their citizens who had joined IS.
However, the UK, which had stripped the men of British citizenship, opposed the case, in part because of concerns about the possibility of obtaining convictions and significant prison terms in UK courts.
Once that position became clear, officials teamed up to bring the men to America, said Nathan Sales, counter-terrorism coordinator at the State Department. But the British have refused to share evidence with US prosecutors without giving assurances that they would not impose the death penalty, which has been abolished in the UK. This was an obstacle for American officials, who said they viewed the British evidence as crucial in tracking the journey and path of men's radicalization.
They decided not to do the case without this evidence, Demers said.
The British later relented and agreed to share evidence without assurance. But Elsheikh's mother sued over the transfer of evidence and delayed the case for more than a year. In March last year, a UK court effectively blocked the exchange of evidence regarding the death penalty. A hurdle US officials suspected additional litigation might be required to overcome.
Despite the verdict, prosecutors pushed forward. G. Zachary Terwilliger, the US lawyer for the Eastern District of Virginia whose office is handling the case, argued internally that prosecuting the accused was more important than leaving the death penalty on the table.
"You can certainly make an argument, and maybe it's not even a narrow appeal that the death penalty was appropriate given the horrific nature of this crime," Terwilliger said. "But getting justice for the victims was paramount to me."
Families also began to unite to remove the death penalty from the trial.
That was Diane Foley's position for a long time. As the noisiest of the group, she has met regularly with government officials over the years and maintained high-profile contacts in Washington such as her hometown Senator, Jeanne Shaheen of New Hampshire, with whom she wrote a 2019 newspaper warning of "impunity" for these monsters. "
Nonetheless, the burgeoning consensus in recent months has been remarkable as families have not always shared the same perspective on the case.
The executions of Foley and two other hostages, Steven Sotloff and Peter Kassig, were documented in propaganda videos, with the fate of the men evident to the world. However, the circumstances surrounding the death of a fourth, Kayla Mueller, who was sexually assaulted by the late ISIS leader Abu Bakr al-Baghdadi, according to prosecutors, were less well known and her parents initially believed they were keeping the death penalty on the table for answers .
Mueller's mother, Marsha, said in a text message that the couple did not want anyone to die but were eager to hear about Kayla.
Ultimately, however, she concluded, "The other families we care about wanted the men to be brought here, and that seemed like the only way they would come."
Meanwhile, current and former FBI officials who helped the families, including the head of the bureau's hostage rescue cell, encouraged them to speak up together to move the Trump administration to law enforcement. Ali Soufan, a former counter-terrorism FBI agent who teamed up with Müller's parents to investigate Kayla's death, argued that waiving the death penalty was essential to working with Britain and was even common in international terrorism cases like this one.
Other options were hardly optimal. A trial in Iraq in which the men were held in US military detention last year could lead to a human rights outcry that creates empathy for the men. The trial could also result in their release or possibly execution if convicted.
Fearing that US law enforcement might not take place at all or that the men might be left behind in Iraq, the families hastened their advocacy efforts. In July, all four signed an opinion piece in the Washington Post urging the US to use the couple as a message that anyone who harms American citizens "will not escape." That month, NBC News aired an interview with the men they found themselves in admitting being involved in Mueller's captivity.
When Foley met with Barr in 2019, he said he shared her desire for accountability. But she said he and other Justice Department officials firmly believed the death penalty, a sentence Barr brought back after a 16-year hiatus from the federal government, was deserved.
However, last summer Barr was poised to break the traffic jam when families expressed their desire to remove death from consideration and when the case dragged on with no apparent solution.
"I don't know if it was the deciding factor or not, but I think it helped when we finally got back in touch and said, 'Please. Please take them to the US, "said Foley." If you need this evidence and you need to waive the death penalty, please do it. "
Preparing Foley for the upcoming news, a senior Justice Department official wrote in an Aug. 14 email that once the US news is delivered and released, "we are certain it will generate a lot of attention and discussion - and..." there will be many. " be interested in hearing from all of you. "
It did so days later with the publication of Barr's letter to British Home Secretary Priti Patel. In it, he pledged to waive the death penalty, but also issued an ultimatum: If the Justice Department received the British evidence by October 15, it would be prosecuted. If not, it would put the men in Iraqi custody for criminal prosecution.
“That was a real option. It wasn't an attitude, "said Demers." I didn't know if the UK could do everything in time to give us this evidence. "
The evidence came, leading to a 24-page indictment, the number of which were sentenced to life imprisonment.
Justice Department prosecutors announced their case on October 7th when the men were flown to Dulles International Airport and taken to prison where they video-linked to a judge about the pandemic. You plead not guilty.
When Foley heard lawsuits that she once doubted would ever come, she wondered if the men might have been friends with James, who had taught prison inmates years earlier, under other circumstances.
But she is also satisfied.
"Until my last breath, I'll do my best to create some accountability and justice for the horror of the murders of these four Americans."
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