Putting ISIS on Trial: A Landmark Terrorism Verdict in U.S. Federal Court

By Joanna Jandali.

In 2013, two Arizona parents’ lives were shattered when they learned that ISIS had taken their daughter hostage in Syria. Kayla Mueller grew up in Prescott, Arizona, attending Northern Arizona University where she received a bachelor’s degree in political science. From a young age, Kayla dedicated herself to helping others. In high school, she won awards for her volunteer efforts; in adulthood, she worked around the world, advocating for human rights issues and providing humanitarian assistance. Kayla’s selflessness is what ultimately brought her to Syria in 2013. On August 3, 2013, Kayla and a friend traveled to Aleppo to help fix the internet at a Doctors Without Borders compound. ISIS fighters abducted her one day later. In 2015, after two horrifying years trying to secure Kayla’s release, her parents—Carl and Marsha Mueller—learned that an airstrike had killed Kayla.

But the Muellers are finally seeing their first glimpse of justice. Two weeks ago, a federal jury in Alexandria, Virginia, convicted El Shafee Elsheikh for his role in the ISIS-hostage scheme involving Kayla as well as three other Americans: James Foley, Steven Sotloff, and Peter Kassig. The jury found Elsheikh guilty of eight charges, including four counts of hostage taking resulting in death, murder conspiracy, and conspiracy to provide material support to terrorists. The verdict is a watershed moment as it marks the first trial and conviction on U.S. soil of a major ISIS actor. The case brought with it a chance for justice and an opportunity for the U.S. to reckon with its past and future pursuit of counterterrorism and global criminal justice.

Background: The ISIS “Beatles” Cell

El Shafee Elsheikh is one of four British nationals—along with Mohammed Emwazi, Alexanda Kotey, and Aine Davis—who comprised a notorious Islamic State cell. Hostages nicknamed these men “The Beatles” for their unrelenting beatings and their distinct English accents. Over several years, the Beatles engaged in brutal hostage takings and more than twenty beheadings, videos of which were shared around the world causing outrage and heartbreak. Released hostages have detailed horrifying accounts of the Beatles’ torture and inhumane treatment, including electric shocks, waterboarding, and mock executions.

In 2018, Kurdish forces captured Elsheikh and Kotey, and detained them in northeastern Syria, before turning them over to U.S. forces. In 2020, the Department of Justice charged Elsheikh and Kotey with: conspiracy to commit hostage taking resulting in death; hostage taking resulting in death; conspiracy to murder a U.S. citizen outside of the U.S.; and conspiracy to provide material support to terrorists and a designated foreign terrorist organization. Kotey pleaded guilty to all eight counts of his indictment, but Elsheikh did not, sending his case to trial. On April 13, 2022, following an 11-day trial and four hours of deliberation, a jury found Elsheikh guilty of all eight charges.

Trying Terrorism in Civilian Courts: The Significance of Elsheikh’s Case

Elsheikh’s case illustrates that U.S. federal courts have the capacity to try terrorism and war-related crimes. That a federal court can grapple with years of terrorism-related activities occurring in Syria is particularly significant in light of the U.S.’s dark legacy at Guantanamo Bay. In the wake of the September 11 attacks, the U.S. unlawfully detained, abused, and tortured upwards of 700 suspected “enemy combatants” at Guantanamo Bay. U.S. officials touted Guantanamo’s military commissions as necessary to try individuals suspected of terrorism for violations of the laws of war.

Defenders of the military commissions argued that battlefield exigencies justified less stringent procedural safeguards, such as the rule against hearsay or the prohibition against the use of coerced statements. They contended that weaker evidentiary safeguards were appropriate for statements obtained in the context of war; reduced standards of evidence would, in theory, facilitate convictions of the “worst of the worst.” The problem, however, was that most of the men detained at Guantanamo were not captured on a battlefield; moreover, reduced due process neither facilitated nor expedited convictions. As of today, of the 780 detainees held at Guantanamo since 2002, only two have been convicted.

Elsheikh’s case is a notable demonstration that terrorism cases can—and should—be held in civilian courts. U.S. federal courts are properly equipped to handle such cases; due process need not be contravened in the pursuit of justice. Although the number of detainees at Guantanamo Bay and the frequency of due process violations have both dramatically declined over the past two decades, the U.S. has replaced its unlawful-detention tactics with unlawful drone strike-to-kill tactics. These strikes not only preclude victims from the opportunity to face their perpetrators in courts, but they also have killed thousands of civilians in the process.

Moreover, these strikes contravene a primary function of courts: truth-finding. Take Elsheikh’s case for instance: the trial has been a critical opportunity for human rights organizations, like Syria Justice and Accountability Centre, to acquire clues regarding mass graves in Syria. Prioritizing extra-judicial counterterrorism tactics effectively deprives courts, victims’ families, and civil society organizations of the ability to uncover crucial information through testimony that could help locate missing persons and bring closure to their families. Taken together, these facts illustrate that optimizing counterterrorism and global criminal justice requires respect for the due process of law and trust in the existing federal judicial system.

Conclusion: The Next Step Forward

Elsheikh’s trial highlights a meaningful opportunity for the U.S. to expand its statutory framework to encompass crimes against humanity. Crimes against humanity are acts of violence—including murder, torture, unlawful imprisonment, sexual violence, and enforced disappearance of persons—committed as part of a widespread or systematic attack against civilian populations. By enacting a crimes against humanity statute, the U.S. could play a larger role in advancing global criminal justice, facilitating the ability to hold perpetrators of major atrocities accountable for their crimes.

As discussed, Elsheikh was charged with hostage taking resulting in death, conspiracy to commit murder, and conspiracy to provide material support to terrorists. Notably, the subject matter of Elsheikh’s trial paralleled the type of evidence that a crimes against humanity charge would require. Jurors saw ISIS propaganda and recruitment documents, videos of hostages begging for help and captors demanding ransom, and graphic images of bruised bodies following torture and abuse. Released hostages testified about their months in ISIS captivity, describing the characteristics of their captors and harrowing stories of violence, torture, and murder. Together, this evidence could be sufficient for a conviction of crimes against humanity. In an age of mounting atrocities and a decreasing global appetite for international courts, domestic courts are more vital than ever as avenues for accountability.

U.S. v. Elsheikh is undoubtedly the landmark terrorism trial and conviction of the decade, bringing with it opportunities for truth, justice, and accountability for victims and their families. The trial also leaves behind lessons to be learned—lessons related to the nexus of counterterrorism, due process of law, and the future of global criminal justice.

"Justice sends mixed messages" by Dan4th is marked with CC BY 2.0.

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By Joanna Jandali

J.D. Candidate 2023

Joanna Jandali is an ASLJ Staff Writer and a 2L from Tucson, Arizona. She graduated from the University of Arizona in 2020 with her B.A. in Political Science and Law and a minor in Arabic. Joanna is interested in criminal justice reform, transitional justice, and environmental law. Outside of law school, she enjoys traveling, trying new coffee shops and vegan restaurants, and thrift shopping.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.