Dropping “Death”: The Politics of DOJ’s ISIS Executioner Trials

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Note: This post will be updated tomorrow. What follows are preliminary thoughts on the breaking news that United States Attorney General Barr will drop demands for the death penalty in exchange for full cooperation from British intelligence.


Here are some initial thoughts on the US decision to not seek the death penalty for the ISIS members known as “the Beatles.” Before I get started, full disclosure: I knew the American victims of ISIS, and am politically, ethically, and strategically opposed to capital punishment. Caveats aside, I do not believe my analysis would change were the conditions different.

Defense One broke the story that AG Barr sent Home Secretary Patel official notice on Wednesday afternoon. DOJ’s about-face here is significant for several reasons, as is the Defense One exclusive. This story was the first confirmation of rumors that have been swirling: namely, that the US was willing to take the death penalty off the table. Further, it’s the first official confirmation of AG Barr’s decision to do so in order to expedite the Beatles’ American trial. If Barr’s demands are met, and the US is able to move forward with the trials, this will mark the first occasion for the American prosecution of non-US citizens who joined so-called Islamic State.

Here are some basics of the situation involving ISIS and the US decision: The UK revoked the Beatles’ British citizenship in absentia five years ago. 2 are held at al-Asad airbase in Iraq: US military custody. 1 is deceased, and another in Turkish prison.

On Tuesday, in an about-face, AG Barr announced to Priti Patel that the US will drop the death penalty in exchange for the transfer of all classified material from the United Kingdom related to the case. But that’s not all. Since 2018, the Trump administration has maintained it has the right to call for death over the executions of James Foley and Steven Sotloff. Victims’ families, however, are united in opposition to this potential outcome. Because they are smart (and ethical).

Barr’s letter to Patel shouldn’t be read as some act of mercy. It isn’t. After dropping the death penalty option, Barr proceeds to use blatantly extortionist language after accusing the UK of violating the nations’ Mutual Legal Assistance Agreement. Barr states “it should be clearly understood” that the US will remand the remaining ISIS Beatles to Iraqi authorities should the UK not hand over all classified intel by October 15th. That will certainly mean execution. So, mercy or strategic sanity this measure is NOT.

The UK outlawed the death penalty in 1969. Despite stripping Kotey and Elsheikh of British citizenship (and denying them British trials), the courts also blocked cooperation with the US on grounds of the death penalty. The US & UK have been in ongoing litigation since 2018. Essentially, AG Barr is threatening the UK with the imposition of death by a third-party state in his “dropping the death penalty” letter of notice to Priti Patel. Extortionist. So, the question (one, anyway) is: why?

Barr claims “time is of the essence” in putting Kotey and Elsheikh on trial in the US. He bases this claim on the difficulties of managing…wait for it…wait for it… …the indefinite detention of ISIS suspects held in Iraq.

YEP.

Let me translate this War on Terror hypocrisy for you, bluntly: Barr’s “concern” about indefinite detention is…bullshit. Gitmo: it’s still open.

Here is where the timing of the US demands enters the equation: October 15, 2020 is the deadline set by the Trump administration. The UK must hand over all classified intel on the case, or Kotey and Elsheikh will be put to death in Iraq by Iraqi authorities. Barr’s move isn’t about “bringing justice” or closure to the families of ISIS victims Jim Foley, Steve Sotloff or anyone else. This is about the election. And the massive clusterfuck the Trump regime is presently in. Make no mistake about it.

Trump needs a big, distracting win, and between this move from DOJ and the announcement about reinstitution of Iran sanctions, it looks like the Middle East is his geopolitical fuckshit sphere of choice.

As per usual for US foreign policy. But moving on.

Here are some additional thorny issues in the death penalty-dropped-against-ISIS-executioners story: International law, repatriation, and citizenship revocation. For starters.

The UK has boxed itself into a very dicey corner. Although Elsheikh retains Sudanese citizenship, they rendered Kotey stateless. That is a violation of international law.The UK refuses to hold the ISIS trial itself for Kotey and Elsheikh on the grounds of..wait for it…wait for it… THE LEGAL COMPLICATIONS OF REPATRIATION FOR NON-UK CITIZENS.

Not only did Kotey’s citizenship revocation violate international law, but it violated the United Kingdom’s OWN laws. The UK “may not deprive a person of British nationality, unless obtained by means of fraud, false representation or concealment of a material fact.” Even in the case of said fraud, false representation or concealment of material fact, the United Kingdom’s own laws state that citizenship revocation cannot move forward… “if they are satisfied that the order would make a person stateless.”

Kotey was never a dual citizen.

Meanwhile, the US is pressuring European states to take back their citizens who joined ISIS. To no avail. And, at the same time, stripping Americans like Hoda Muthana of US citizenship. Essentially, AG Barr’s move amounts to thinly veiled political chess with a supremely cynical logic and shitty endgame. This isn’t a quest for justice. This is a deeply politicized DOJ propping up a regime in crisis.

It isn’t just the DOJ, or the US, however. This case is very much about the logical endpoint of War on Terror non-thought. It is about the consequences of unilateral geopolitical fuckery and the paradoxes of “limitless sovereignty” (when fighting a group claiming the same).

In any case, those are some preliminary thoughts on the United States’ case for dropping the death penalty against ISIS executioners, and how / why this should be seen in the harsh light of reality for the cynical political machinations it represents.

More in the morning.

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