El-Shafee Elsheikh and Alexanda Kotey are suspected members of the four-person Islamist cell “the Beatles,” which has tortured and beheaded more than 27 hostages. Their victims include British aid workers Alan Henning and David Haines and American journalists James Foley and Steven Sotloff. In one online video, Foley kneels in an orange jumpsuit as a member of the group severs his head.
The cell has been stopped. Mohammed Emwazi, a.k.a. “Jihadi John,” was targeted and blown up by allied forces in 2015. Another member, Aine Lesley Davis, now rots in a Turkish prison. The remaining two, Elsheikh and Kotey, originally from London, were caught in January by U.S.-backed Syrian Kurdish soldiers. The British government subsequently removed their citizenship. They are being held in a Syrian jail.
Given the international interest of the crime, the question of what to do with the men is somewhat complicated. But regardless, a related political controversy, both unnecessary and distracting, has arisen.
Having revoked their citizenship, British home secretary Sajid Javid decided to send the pair to the United States for trial. Under the circumstances, this is normal. In the U.K. legal system, Kotsey and Elsheikh would have a high chance of being acquitted, owing to limitations on the types of evidence that can be used in court. And as correspondent James Landale of the BBC explained, there is the further complication of “establishing what crimes have been committed in which jurisdiction.” In short: At present the U.S. legal system has a more developed apparatus for dealing with global terrorism.
However, breaking with normal policy, Javid wrote to the U.S. attorney general (in a letter that was leaked to the British press): “We believe that a successful federal prosecution in the US is more likely to be possible because of differences in your statute book and the restrictions on challenges to the route by which defendants appear in US courts.”
Since Javid’s priority was the trial, he also stated that Britain would not insist that the death penalty be avoided. In other words: This was not a decision on the death penalty, rather a decision to trust the U.S. judicial system entirely. Ben Wallace, a Conservative MP, explained that this was a “rare decision,” reminding the House of Commons that “the crimes that we are talking about involve the beheading and videoing of those beheadings of dozens of innocent people by one of the most abhorrent organizations walking the Earth.” Javid also has the prime minister’s support.
This exceptional treatment has sparked outrage from the British Left. The Labour party suggested that the government was abandoning “principled opposition” to the death penalty. (This is not true: The British government’s stance on the death penalty remains unaltered.) Kenneth MacDonald, a former director of public prosecutions, said that Javid’s entertaining the possibility of the death penalty “shoved the door of the death chamber ajar” (meaning what exactly?). Likewise, the non-governmental organization Amnesty International (who are stridently pro-abortion-rights) warned against “leaving the door wide open to charges of hypocrisy and double standards.”
Taking these objections at face value, one would think that Javid had skipped trial altogether and personally sentenced Kotsey and Elsheikh to death. The reality is very different.
Stuart Ramsay, a journalist for Sky News, conducted a 90-minute interview with Kotey and Elsheikh earlier this year. Ramsay wrote about the encounter for The Spectator:
Just a few months ago these men would have imprisoned me, as they had my friends. I would have likely appeared in videos dressed in an orange jump-suit, as had my friends. I may well have had my throat cut while being filmed, as they did to my friends. Yet I introduced myself and sat down in an armchair. It was a peculiar moment.
More than peculiar, Ramsay calmly listening to the pair’s testimony is an appropriate symbol of both the British and the American justice systems. And, moreover, of how they stand in humane opposition to the bloody lawlessness of ISIS.
“My encounter with these men made one thing clear,” Ramsay wrote:
They were utterly without remorse. Worse, maybe, I think they believe everything the Islamic State has done was justified and still do. Their arguments, refusals and denials of guilt aren’t credible; but they were intelligent, eloquent and focused on their position.
He’s right. It’s chilling to watch.
Of course, only a court of law is capable of determining whether they are, beyond reasonable doubt, guilty as accused. And this is the precise point worth bearing in mind when considering the political dispute.
Nevertheless, Elsheik feels hard done by. “What makes the British government want a British citizen to be tried in America?” he asked the BBC. “Like, what’s behind it?”
But again, what’s “behind it” is a legitimate worry that, were the trial to take place in Britain, it could be botched. Which wouldn’t be good for justice. Nor, presumably, for infidels still attached to their heads.
All Javid has really done in this instance is to pass the judicial burden to a fellow democracy and ally — the United States — that is better equipped to deal with it. And, furthermore, to trust its discretion when it comes to sentencing.
But isn’t there something up with the U.S. legal system anyway?
No. In America, as in Britain, they start with a presumption of innocence. The burden of proof is on the prosecution. If Kotsy and Elsheik truly are innocent, which they seem to suggest, that will be revealed in due course — and they have nothing to worry about. Ultimately, this case isn’t about the death penalty. It’s about ensuring a fair trial for the worst crimes imaginable. So go on and send them to America, Mr. Javid. The water is warm. And the law is fine.