Who’s Afraid of a Little Prosecution?

Lost amid all the scandalous news about White House security clearances and domestic abusers, as well as the start of the Winter Olympics in South Korea, was important news out of northern Syria: our Syrian Kurdish allies have captured two of the four so-called Islamic State (IS) fighters colloquially known as the ‘Beatles’ due to their British accents and origin. These men, Alexanda Kotey and El Shafee Elsheikh, were widely known for their brutality and violence, having carried out on video multiple beheadings, crucifixions, and tortures of prisoners. They are believed to have committed the murders of American journalists Steven Sotloff (pictured above) and James Foley, as well as the American aid worker Abdul-Rahman Kassig. These IS fighters were previously stripped of their British citizenship and are being held by Syrian Kurdish forces in northern Syria after their capture on the field of battle. American special operations forces have accurately confirmed the identities of these two men and are now working with the Kurds to determine the next steps in the handling of these killers of American citizens.

How these fighters are dealt with is no simple matter, especially as they are not citizens of any country as of now, given the rescission of the British citizenship upon their joining of so-called Islamic State. In the past, the British have claimed their own citizens when captured by American or allied forces and have dealt with them on British soil, but this will likely not be the case here. The Kurds in northern Syria are also holding possibly thousands of other enemy combatants as prisoners of war, and are looking to set up courts or tribunals to prosecute these offenders. This, however, is not a great option, as the Kurds may not even control the territory they currently hold next year, much less 5 or 10 years down the road, and the Kurdish system of justice may not be reasonable, fair, speedy, or non-corrupt. So, now that those options seem out of the question, it looks as though the best choice is for the United States to take on these prisoners and put them through the American justice system, as they have killed American citizens. But what justice system should they go through?

The American prison at Guantanamo Bay, Cuba.      Image Credit: New York Times

In the past, we have sent enemy combatants captured in Iraq or Afghanistan to Guantanamo Bay Detention Center in Cuba to be processed and held awaiting charges in our military tribunal system set up after the attacks of September 11, 2001. That system, however, is predicated on the 2001 Authorization for the Use of Military Force (AUMF) that allowed the US to fight the ‘war on terror’ in both of those nations through the current day, but focuses only on groups that “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Thus far, we have not seen if that AUMF legally covers the fight against IS, as that group itself was not around in its current or even previous form when the horrific events of 9/11 took place. If the captured British IS members were taken to Guantanamo Bay for detention, they would have the right to petition for habeas corpus, which determines whether a prisoner’s detention is indeed valid under the law. At that point, we would see the 2001 AUMF challenged for the first time in court in terms of whether it actually justifies the actions taken against the so-called Islamic State. If the prisoners won their habeas petition, the US would have no grounds under which to further hold them. Obviously, this would be a disaster, and could possibly begin a process of many more such requests from Guantanamo detainees or other captured fighters.

What does that leave us then? Well, it leaves us the best possible option: trying these despicable men in United States federal court for murder, conspiring with a terrorist organization, and giving aid and support to a terrorist group. The murders of US war journalists that these men carried out are indeed crimes under the US code, and are punishable by death here in the United States. The other crimes are also punishable by life in prison, and there is strong evidence for the guilt of these parties for all of the crimes they have been alleged to have committed. We have these men in virtual custody, and should not be squeamish about bringing them into our country for a public trial under the same rules that normal American defendants benefit from. These killers, although they would likely not bat an eyelash at beheading either you or I, should be shown the courtesy of a criminal trial, under which they will almost certainly be duly convicted. The criminal prosecution of these men, under our normal American justice system, will go to show the world that we do not take these awful crimes against our citizens lightly, but we also do not stoop to the level of these abhorrent individuals in bringing them to justice. Putting the IS fighters in this case through a public trial will only improve our global reputation and disgrace the terrorists themselves. We cannot come out of that proceeding looking worse, if we try these men fairly.

Fed Court Alexandria VA
Federal District Court in Alexandria, VA where overseas terrorism cases would be heard.     Image Credit: Carlyle Towers

One thought that this circumstance brought up in my mind is something that I have thought about for quite a long time, and is a compelling what-if in our recent history: what would have happened differently in our history had we treated the attacks of September 11 as a horrific criminal act instead of as an act of war? Treating terrorists as the common, lowlife criminals they are reduces their standing in the world and shows them to be cowards, not heroes. Warriors in a holy war gain standing, but criminals carrying out a murderous rampage against civilians gain nothing. Perhaps we could have avoided the spending of trillions of dollars in ‘treasure’ and thousands of lives in ‘blood’ had we chosen a different path. We will never know the outcome of that alternate history, but we can choose our path today. We should bring these British IS prisoners to the United States, give them no special treatment, and try them in federal court as the lowlife criminals they are.

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