Editor’s Note: Joshua A. Geltzer and Luke Hartig served as senior directors for counterterrorism at the National Security Council from 2015-17 and 2014-16, respectively. The opinions expressed in this commentary are theirs.
The horrific images of our fellow Americans forced into orange jumpsuits and beheaded by masked terrorists under the desert sun have been seared into our national consciousness. Nothing can bring back to their families the loved ones they’ve lost.
But, with two of the suspected terrorists allegedly responsible for these murders now in custody, a measure of justice can be done.
Yet, months after their capture, the fate of these detainees (who both deny involvement with ISIS) remains uncertain. There appears to be a debate within our government about which country should hold these men accountable and – if it’s the United States – where to send them: to federal court for criminal prosecution or to Guantanamo Bay.
As former career national security professionals in the US government, we have worked with colleagues across the government to figure out how best to handle terrorist suspects captured overseas. Sending these two to Guantanamo wouldn’t be smart and it wouldn’t be just – it would at a minimum be justice delayed, and more likely justice denied.
The idea of sending these suspects – Alexanda Kotey and El Shafee Elsheikh, believed to share responsibility for the deaths of Americans James Foley, Adbul-Rahman Kassig, Steven Sotloff and Kayla Mueller – to Guantanamo appears tied to the notion of prosecuting them before military commissions, rather than in federal court. But Guantanamo’s military commissions have proven disastrous.
They have obtained only a handful of convictions, with others reversed on appeal. And they are currently in full meltdown mode, with the Defense Department lawyer overseeing them recently fired for reasons now publicly disputed, the lawyers in one case resigning en masse out of concern that the government was surveilling conversations with their client (which government prosecutors deny), and the judge in that case indefinitely postponing proceedings until someone tells him what to do next.
The families of 9/11 victims are still, all of these years later, waiting for the alleged perpetrators to go on trial at Guantanamo. Forcing the same endless wait on the families of murdered hostages makes no sense.
While these individuals await military trial at Guantanamo, they could cause real problems for our government.
First, they’d cost millions of dollars per year to be held at Guantanamo – in contrast to the $86,000 per year it costs our government to hold each prisoner at Colorado’s Supermax facility.
That’s in part because of the incredible burden of operating a prison on a small piece of an island not our own; and it’s in part because, as detainees under the law of war, these individuals would be entitled to conditions at Guantanamo far more comfortable than those afforded prisoners at Supermax.
Second, these would be Guantanamo’s first detainees associated with ISIS rather than al Qaeda or the Taliban, and they could challenge in federal court whether they’re legally detained as such. That, in turn, could put before a federal judge the government’s entire theory of the authority for its critical, continuing campaign against ISIS, a theory that some legal commentators have questioned.
The government is already trying to avoid litigating pending cases that challenge this same legal theory. Why give these guys a shot at bringing this question to the courts?
Third, the prospect of detaining at Guantanamo these two men – former British nationals nicknamed “The Beatles” because of their British accents – could raise diplomatic complications with our closest ally, which previously faced domestic political outrage over the protracted detention at Guantanamo of former and now once-again British resident Shaker Aamer.
Fourth, even a military commission conviction could potentially be thrown out on appeal, as half of those already obtained at Guantanamo have been already. Finally, if the military commissions never come to fruition – as looks increasingly likely for some detainees already at Guantanamo – and these individuals are held indefinitely under the law of war, eventually they may be entitled to their release if the armed conflict with ISIS concludes.
That’s a truly terrifying prospect.
So, what’s the alternative to Guantanamo? It’s prosecution in federal court, where more than 660 defendants have been convicted of terrorism-related crimes since 9/11. The life sentence imposed in March on former high-ranking al Qaeda member Muhanad al-Farekh and the November 2017 conviction of one of the perpetrators of the Benghazi attack showed, yet again, that the federal courts can deliver swift justice and lengthy sentences, even in complicated cases involving terrorists captured overseas.
Of course, we don’t know the precise strength of the government’s case against the two captured “Beatles,” and even the government may not know that until it concludes its full investigation. But, assuming there’s a case to be made, the federal courts are the place to make it and see justice done.
That’s not just our experienced view; it’s also governing US policy, which requires our government to “diligently seek to ensure that hostage-takers of US nationals are arrested, prosecuted and punished through a due process criminal justice system in the United States or abroad for crimes related to the hostage-taking.”
Reasonable people can disagree on the merits of keeping Guantanamo open and of sending new detainees there. But the question of what to do with the alleged murderers of US hostages should be solely focused on two things: seeing justice done and respecting the wishes of the families for prosecution.
One potentially viable alternative to federal prosecution or Guantanamo would be for the British government to prosecute these men.
Both are former British nationals and appear to have British blood on their hands, as well. Depending on the strength of the evidence, as well as the specifics of British criminal procedure, American and British prosecutors may deem this option more likely to bring justice to the families. Perhaps these considerations could justify that result; but the first choice for our government should be to see justice done for Americans right here in America.
All told, bringing these individuals to Guantanamo would inject uncertainty into their fate, impose costs and tough legal challenges on our government, and infuriate our anti-Guantanamo British allies whose citizens also appear to have died at their hands – all with the possibility of eventual release.
Perhaps most importantly, it would contradict the wishes of the families of the hostages allegedly murdered by these men. In contrast, and especially if British prosecution is unavailable, prosecuting them in federal court carries the prospect of seeing justice served, swiftly and for all to see.