A dispute between the United States and Britain over what to do with Islamic State foreign fighters captured on the battlefield is demonstrating the complexities arising in the aftermath of a years-long war to oust the extremist group from its self-declared caliphate in Iraq and Syria.
The latest flash point involves two men suspected of being Islamic State militants who have been held by coalition-backed forces in Syria since mid-January.
The men grew up in Britain and went to Syria to join a four-person militant cell that became known as the Beatles, owing to the British accents of its members. The cell rose to infamy with the 2014 beheading of American journalists James Foley and Steven Sotloff.
The fate of the two Islamic State militants is part of a bigger dilemma for the United States and its coalition partners now that the extremist group has lost nearly all of the territory it once held. Hundreds of alleged Islamic State fighters have been captured on the battlefield, but in many cases, where they should face justice has not been determined.
U.S. diplomats and military officers are pushing Britain to accept the two men and put them on trial — part of an effort by Washington to establish the principle that all foreign fighters captured on the battlefield should be returned to their countries of origin for trial. Both men are being held by the Syrian Democratic Forces (SDF), a Kurdish-dominated group and the main U.S. partner in Syria.
Defense Secretary Jim Mattis said Tuesday that a final agreement with Britain had not been reached. He called on countries to take responsibility for fighters who joined the Islamic State from their soil.
“How they carry out that responsibility, there’s a dozen different diplomatic, legal or whatever ways, I suppose,” Mattis said during a trip to Europe. “But the bottom line is, we don’t want them going back on the street.”
British Defense Secretary Gavin Williamson told the British newspaper the Sun that the men, El Shafee Elsheikh and Alexanda Kotey, turned their backs on Britain and should never set foot in the country again.
Apart from leaving British territory to join the Islamic State, the Beatles cell has been implicated in the detention and execution of British citizens, including aid worker David Haines.
The State Department has said that if Britain refuses to accept its Islamic State fighters, they could end up imprisoned at the military detention facility at Guantanamo Bay, Cuba, which President Trump has promised to keep open indefinitely.
“We are working with coalition partners to determine what to do with ISIS fighters held by the SDF,” said Steven Goldstein, the State Department’s undersecretary for public diplomacy and public affairs. “One possibility is that former British citizens return to the U.K. Another option that we’re looking at is to place these terrorist fighters in Guantanamo Bay.”
European officials probably would object strenuously to the detention of current or former European citizens at Guantanamo Bay. Despite Trump’s calls to expand the facility, which still houses 41 inmates, officials across the U.S. government are reluctant to do so for legal and diplomatic reasons.
Meanwhile, career Justice Department prosecutors and FBI agents are working feverishly to prepare a case that could bring the Beatles militants to the United States to face trial in federal court, most likely on charges of kidnapping, torturing and killing American hostages, according to people familiar with the discussions. They spoke on the condition of anonymity because of the sensitivity of the diplomatic discussions.
By seeking the pair’s detention at Guantanamo Bay or a death sentence in civilian court, the United States would risk imperiling any future cases in which Washington seeks to extradite European terrorism suspects. Federal prosecutors are approaching the case as though the militants were apprehended in Europe, meaning they would face neither possibility, the people familiar with the discussions said.
Attorney General Jeff Sessions, who has been a vocal advocate for housing new detainees at Guantanamo Bay, has refrained from taking a position on the case, officials said.
Thomas P. Bossert, the White House official coordinating the decision-making process, favors sending the two men to Guantanamo Bay. But Bossert, who is Trump’s top counterterrorism adviser, also has instructed officials to consider all options.
“There’s no rush on the two,” said one U.S. national security official who is familiar with the case. “It’s not like there’s a gun to our head. We’re going to take the time necessary to come up with the right resolution.”
Diane Foley, the mother of one of the American hostages who were killed, said U.S. law enforcement authorities have not contacted the families about the next step. “We have made clear what we want to happen,” she said. “We want [the two men] to have the opposite of what they gave our children: a fair and public trial.”
Foley said she did not favor sending them to Guantanamo Bay, because she thought such a step would “bury the truth.”
Some U.S. officials are concerned that the lack of clarity about what to do with Islamic State detainees could further exacerbate tensions regarding how the U.S. government handles cases of Americans taken hostage by overseas terrorist groups.
The two Islamic State suspects in question grew up in west London. Elsheikh was born in Sudan. Kotey, who has a Ghanaian and Greek Cypriot background, was born in London. The State Department designated both men foreign terrorists last year.
The ringleader of the Beatles cell, Mohammed Emwazi, or “Jihadi John,” was killed in a 2015 drone strike in Syria. The fourth member, Aine Davis, is being detained in Turkey.
Most of the tension over battlefield detainees has focused on Syria, where nonstate groups such as the SDF are holding hundreds of people and lack any official authority to negotiate with foreign governments. Fighters detained on the battlefield in Iraq, meanwhile, can be processed through the Iraqi justice system, but human rights advocates have highlighted legal shortcomings and due-process violations in trials of Islamic State suspects there.
The U.S. military is helping local forces identify the detainees in the hope of repatriating any foreign fighters to their countries of origin for trial.
But the effort, which is in its early stages, has been unsuccessful so far, in part because of the legal concerns these countries have about accepting the combatants. Many European countries apart from Britain also prefer to see the fighters tried in the places where they were fighting, in part to avoid an influx of tricky cases that could stress domestic criminal justice systems.
In their countries of origin, captives could be prosecuted for crimes they committed before traveling to Syria and Iraq, or for supporting efforts to perpetrate terrorist attacks against their home countries while in Syria and Iraq, Air Force Gen. Paul J. Selva, vice chairman of the Joint Chiefs of Staff, said in late January.
“If the home governments are willing to take these individuals back for the purposes of prosecution, then that is a way to thin the herd a little bit and prevent the longer-term consolidation of foreign fighters in places for long periods of time,” he said. “That’s the effort that we’re undergoing right now. It is a process that we’re working on.”
The United States is not upset that Britain has yet to agree to take the two militants from the Beatles cell, said one U.S. official, who acknowledged that the United States faces legal and logistical complexities in another case, this one involving a U.S. citizen.
The American, whom the government has not identified, was captured in Syria last year and is being held by the U.S. military in Iraq. The American Civil Liberties Union filed a lawsuit against Mattis last week on behalf of the detainee in the U.S. District Court in the District of Columbia. In the filing, the ACLU said the U.S. military lacks legal authority to detain the American citizen for months abroad without charge.
Similar legal challenges would be likely to arise in any effort to move such detainees to Guantanamo Bay.
Some U.S. officials are concerned that not dealing with captured Islamic State fighters properly could energize Sunni extremists over the longer term. The officials want to avoid a repeat of the situation at Camp Bucca, a detention center in Iraq that U.S. forces took over in 2003. For years, al-Qaeda operatives organized while in detention and eventually established the Islamic State.
The Pentagon has stressed that countries cannot simply leave Islamic State detainees on the battlefield.
“Doing nothing is not an option,” Mattis said.