How the Islamic State trial could change the future of US terrorism cases

Show caption Family members of IS hostages outside the the US district court in Alexandria, Virginia, in September. Photograph: Saul Loeb/AFP/Getty Images Islamic State How the Islamic State trial could change the future of US terrorism cases As a Virginia jury hears horrific allegations, experts say the trial of El Shafee Elsheikh sets an important precedent Victoria Bekiempis Sat 2 Apr 2022 10.00 BST Share on Facebook

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As the trial against the accused Islamic State fighter El Shafee Elsheikh began this week on American soil, jurors in a northern Virginia courtroom were quickly exposed to accounts of unimaginable brutality.

Elsheikh, prosecutors alleged, carried out terrorist acts that involved the grisly deaths of four Americans – the journalists James Foley and Steven Sotloff, as well as the aid workers Kayla Mueller and Peter Kassig.

Elsheikh, a former British national, allegedly did so as part of a three-man cell dubbed “the Beatles” by the group’s hostages, due to their English accents. Officials have said that this cell was responsible for the kidnappings of more than 20 westerners between 2012 and 2015.

IS members decapitated Foley, Kassig, and Sotloff. The leader of IS, Abu Bakr al-Baghdadi, repeatedly raped Mueller before she was killed.

Legal experts told the Guardian that Elsheikh’s trial would help provide a sense of justice to victims’ families and show that international terrorism cases can, and should, be held in US civilian courts – an important precedent.

David Viola, a professor at the John Jay College of Criminal Justice’s Center on Terrorism, said Elsheikh’s trial demonstrated that the US could get justice through the legal process, not solely by relying on military force.

“The trial proves to the world, hostage-takers, terrorists and others that the US has a virtually unlimited reach and a very long memory,” Viola said.

The prosecutor John Gibbs described Elsheikh as an IS leader who relished cruelty. Elsheikh and his accomplices had beaten hostages more frequently than did low-level guards, Gibbs said on Wednesday in his opening statement.

“If a hostage looked at any of the three men, they would be beaten,” said Gibbs. “In fact, they did not have to do anything to be beaten.”

Hostages who were poised to be released after paying ransoms even endured “going-away beatings”, Gibbs said, noting that Elsheikh and his accomplices once struck a hostage 25 times when they learned it was his 25th birthday, the Associated Press reported.

The IS fighters “were utterly terrifying” to hostages, Gibbs said. Hostages had to kneel, face the wall and avoid eye contact with their captors.

Federico Motka, an aid worker, said that he and his fellow aid worker David Haines were forced to fight captured journalists, including Foley and John Cantlie. “They were super excited about it,” Motka, who was held captive for 14 months and released in May 2014, testified. “We were so weak and shattered we could barely lift our arms.”

The cell described these forced fights as a “royal rumble”, Motka said. They further humiliated the hostages by giving mock commentary on these forced fights. They were forced to fight until passing out.

“They played lots of games with us,” Motka told jurors. “They gave us dog names. We needed to come and immediately respond.”

Motka claimed that in late 2013 and early 2014, hostages had to wear orange jumpsuits, with their captors saying they wanted to re-create “conditions to the detainees at Guantánamo Bay”. Motka said that he endured waterboarding and electrocution through an opening in his cell “until my hands went rigid”.

Elsheikh and another Briton, Alexanda Amon Kotey, were caught in January 2018 by Kurdish fighters while trying to escape from Syria to Turkey. They were brought to US authorities in Iraq and eventually transported to Virginia in 2020, for criminal proceedings.

British officials stripped Elsheikh and Kotey of their UK citizenship but delayed their transfer to the US until authorities agreed not to pursue the death penalty against them.

El Shafee Elsheikh at the trial in a Friday 1 April image. Photograph: Bill Hennessy/Reuters

Kotey pleaded guilty in September 2021 and is awaiting sentencing. His plea deal stipulates life imprisonment; after 15 years, however, he could serve the rest of his sentence in the UK if authorities there are willing to accept him.

The cell ringleader, Mohammed Emwazi, known as “Jihadi John”, died during a US drone strike in Syria about seven years ago.

Elsheikh’s attorney, Edward MacMahon, has contended that there is no evidence proving he was in the terror cell. MacMahon conceded that Elsheikh had traveled to Syria to fight in IS but said cell members always wore masks, making it difficult to identify them.

But amid the awful to and fro in the courtroom and the details of cruelty, violence and death, experts believe the trial’s legacy will concern far bigger issues than individual violence.

“We’re a nation of laws. Our power and our legitimacy can never solely be derived from our military might,” said Viola, who has served as an intelligence officer in the US navy reserve. “We have to hold the likes of Elsheikh accountable … in front of a judge and jury.”

Viola continued: “This is the kind of proof we need for the world, and for ourselves, that laws can have a more profound and lasting impact, and importantly, bring closure to the families of the men and women who died.”

Jason M Blazakis, director of the Center on Terrorism, Extremism, and Counterterrorism at the Middlebury Institute of International Studies, said Elsheikh’s trial showed that the US would prosecute more of this type of case.

“I think the trial, in and of itself, demonstrates that the United States is serious about ensuring that the law is applied against individuals engaged in hostage taking – no matter how long it’s been between the actual hostage taking and the actual trial itself,” Blazakis said. “There is no statute essentially of limitations in terms of trying to bring people to justice for the horrible crimes they allegedly committed.”

In Blazakis’s view, these proceedings might send a message to people who are considering similar actions and prevent some from doing so.

“There are always going to be individuals who sacrifice themselves for some ideological objective – those types of individuals are not going to spend a lot of time thinking about this court case,” Blazakis said. “But there are other kinds of bad actors who are less steeped in the religious ideological milieu of Isis who could be deterred.”

Trial testimony resumes next week.

The Associated Press contributed to this report