A path to justice in the ISIS murders of two journalists

February 13, 2019

When a US federal court held the Syrian government responsible for the 2012 murder of journalist Marie Colvin and awarded her family $300 million in damages, it was a giant step toward justice. It was also something exceedingly rare: nearly 90 percent of all journalists’ murders are carried out with complete impunity, according to research by the Committee to Protect Journalists.

That is why it is vital to take advantage of another, perhaps fleeting opportunity to achieve justice in one the most notorious media crimes in recent history: the 2014 murders of James Foley and Steven Sotloff by Islamic State militants in Syria. The same group also murdered US and British aid workers and volunteers while freeing European hostages in exchange for millions of dollars in ransom.

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The alleged leader of the group, Mohammed Emwazi, was killed in a US airstrike in 2015. Another, Aine Davis, was arrested in Turkey and convicted on terrorism charges. He is currently in prison serving a seven and a half year sentence. The final two, Alexanda Kotey and El Shafee Elsheikh, were captured by US-backed Kurdish forces last year and are being held in northern Syria. The families of the victims—including Diane Foley, the mother of James Foley—have called for Kotey and Elsheikh to be brought to the US and put on trial for their brutal crimes.

But there are complications.

Through intercepts and other intelligence efforts, British authorities have compiled compelling evidence that Kotey and Elsheikh were involved in a range of crimes, including dozens of murders. Intercepts—for example, information gathered through intelligence operations—are not admissible in British courts, and so British prosecutors concluded they had insufficient evidence to bring charges. But such evidence may be admissible under US law, making the United States the preferred legal venue.

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There has been a fierce debate in UK policy circles, as well as legal wrangling in the courts, about whether that nation can legally share the evidence it has collected because of the possibility that the suspects could receive the death penalty. (The UK seeks the global abolition of the death penalty.) Former Attorney General Jeff Sessions offered no assurances that prosecutors would not seek a death sentence, and even told a Senate panel in April 2018 that the lack of British cooperation in the case increased the chances that the suspects would be sent off to Guantanamo as “prisoners of war.”

In the interest of justice, the US government should find a way to address these concerns, offering assurances that they will not seek the death penalty. It should do so not so much to appease the British, but in deference to the friends and family members of Foley and Sotloff who want to see Kotey and Elsheikh tried in civilian court. The families of both journalists believe that a death sentence would fulfill the stated desire of the militants to become martyrs. Sending them to Guantanamo would be worse, as it would provide a perverse justification to the jihadi militants who forced their hostages to wear orange jumpsuits.

William Barr, once confirmed as Attorney General, can break this impasse. He should act quickly: President Trump’s announced withdrawal of US forces from Syria, if carried out, would make it more difficult for Kurdish forces to continue to detain the ISIS militants. Because the security situation in northern Syria remains volatile, Diane Foley says she is anxious to bring Kotey and Elshikh to the US as soon as possible so that they can be indicted and put on trial. “Hopefully, they will implicate others,” Foley says.

Unquestionably, prosecuting the killers of James Foley and Steven Sotloff would be complex. But no more so than the prosecution of Sinaloa cartel leader Joaquín “El Chapo” Guzmán, who was convicted yesterday on all charges. A trial of ISIS militants could have a similar effect, demystifying the organizations and stripping Kotey and Elsheik of the ideological and religious justifications for their heinous crimes.

In researching my recent book on hostages, I spoke with a leading expert on counterterrorism, Brian Jenkins of the RAND Corporation, who noted that a refusal to pay ransom or negotiate when Americans are kidnapped or taken hostage (the so-called “no-concession” policy) does not reduce the threat of future kidnappings, according to research.

“The most powerful determinant of whether or not there will be further kidnapping is not the policy of the government, but the fate of the kidnappers and their organization,” Jenkins told me.  “If kidnappers are apprehended and appropriately punished—if kidnapping gangs, or urban guerrilla groups, or terrorist organizations that engage in kidnapping are destroyed—kidnapping will decline. If this is not done, then it doesn’t make a difference what the policy is.” In other words, if the US government wants to reduce the risk of future kidnappings, the most important action it can take is to put Kotey and Elsheikh on trial and ensure they are duly punished.

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Joel Simon is the founding director of the Journalism Protection Initiative at the Craig Newmark Graduate School of Journalism.