The Washington Post - USA (2020-08-01)

A6 EZ RE THE WASHINGTON POST.SATURDAY, AUGUST 1 , 2020

BY ELLEN NAKASHIMA, RACHEL WEINER, SOUAD MEKHENNET AND MISSY RYAN

The Tr ump administration is
willing to consider dropping its
insistence on pursuing the death
penalty to secure British coopera-
tion in the prosecution of two
admitted Islamic State detainees
accused of involvement in the
executions of American, British
and other foreign hostages in
Syria.
The breakthrough in the long-
stalled case came Wednesday,
when Attorney General William
P. Barr told other senior adminis-
tration officials at a White House
meeting that he would be willing
to take the death penalty off the
table if that would facilitate Brit-
ain’s sharing of crucial evidence,
according to officials familiar
with the matter.
The meeting came amid r ecent
pressure from the Pentagon to
get the pair, both former British
citizens, out of U. S. military cus-
tody in Iraq and as FBI agents
were in London and a federal
prosecutor was in Iraq seeking to
gather more evidence.
Barr and his predecessor Jeff
Sessions had opposed removing
death as a possible sentence for
El Shafee Elsheikh and Alexanda
Kotey, two members of a quartet
of British-raised militants impli-

cated in the beheadings of hostages and whose accents led their captives to dub them “The Beat- les.” A third is in prison in Turkey. The fourth and most notorious member, Mohammed Emwazi — better known as “Jihadi John” — was killed in a U. S. drone strike in 20 15. Barr’s decision marks “a fun- damental shift in the discussion,” said one senior official, who, like others, spoke on the condition of anonymity to describe internal deliberations. “This was the first breakthrough we’ve had in a long time. The sense was, ‘We’re going to get this done. We’re going to get the diplomatic piece mov- ing.’ ” Elsheikh and Kotey have been held at Al Asad air base in Iraq since October, after a Turkish invasion of northern S yria led the U. S. military to move them from a prison in Syria run by allied Kurdish forces. They were first captured b y Syrian Kurdish fight- ers in early 20 18. Defense Secretary Mark T. Es- per, hoping to limit the military’s involvement in holding detainees, had said the matter needed to be resolved by July 31. He backed off that hard deadline, but it accelerated the internal debate over what to do with the Islamic State detainees, officials said. “DOD does not want to hold them indefinitely in Iraq or else- where,” a defense official said. “The temporary facility that they are currently in was never de- signed to house detainees for extended periods of time.” The only long-term f acility is the military prison at Guantánamo Bay,

Cuba, the official said, but the military does not want to add to the population there. The United States had long maintained it was Britain’s re- sponsibility to prosecute the pair, who were British citizens until their citizenship was stripped in 20 18. But British officials have said they feared they could not mount a strong prosecution under their laws and that they lacked sufficient evidence in Elsheikh’s case. U. S. prosecutors, for their part, believe they can bring a case. The main issue for the Justice Depart- ment is ensuring prosecutors can obtain a conviction that will send the men away f or life o r close to it. “The nightmare scenario is they come here and get a short sentence or no sentence — then where would you remove them to?’’ said one national security official. “They’ve been stripped of their citizenship.... They’re stateless. We don’t take a lot of chances on matters like this.” Prosecutors would like to use evidence obtained by British in- vestigators that includes voice analysis believed to tie the two men to hostages and details on how they got to Syria. Officials also are interested in evidence showing that the duo did not

make a snap decision to join the Islamic State, but rather took a long path to becoming “hard- core” Islamist militants, a department official said. Without that evidence, officials believe, it will be harder to bring a case that could result in a substantial prison sentence. One obstacle has been a legal challenge in London. In 201 8, the British government decided it would transmit the material even without a “death penalty assur- ance.” Elsheikh’s mother sued, arguing that would be unlawful. The Supreme Court of the United Kingdom in March agreed, but not because of the capital p unish- ment issue. Rather, it found in a preliminary judgment that the home secretary had failed to ana- lyze the transfer of information under Britain’s 2018 data privacy law. “There is as yet no established principle... which prohibits the sharing of information relevant to a criminal prosecution... merely because it carries a risk of leading to the death penalty in that country,” one of the justices, Lord Robert Carnwath, wrote. A final order is pending. The families of four American hostages are unanimous in their opposition to the death penalty, said Diane Foley, the mother of James Foley, a journalist taken hostage by the Islamic State and beheaded b y Emwazi in 20 14. She said there were two “major” rea- sons. “One is we do not want them to end up in the U.K., where they’ll get a very light sentence,” she said. “And two, we know that the U.K. evidence together with the U. S. evidence will make a

much stronger case against Kotey and Elsheikh.” A number of journalists have obtained interviews in the past year or so in which the pair discussed interactions with American and European hostages. In an interview with The Washington Post last August, Elsheikh said that Emwazi “asked me to get emails and details about [the hostages’] fam- ily contacts, work contacts — anything that’s relevant like that — and pass them over to him.” The email addresses were used to contact the families to conduct ransom negotiations, the men said. One or both admitted in media interviews to interactions with several Americans, including Foley; aid worker Kayla Muel- ler, who was also tortured and sexually abused; journalist Ste- ven Sotloff and aid worker Peter Kassig; as well as British aid workers Alan Henning and David Haines. “The so-called ‘Beatles’ have been in legal limbo for far too long,” said Sen. Jeanne Shaheen (D-N.H.), a member of the armed services committee. “This has been an excruciating process for the families of James Foley, Peter Kassig, Steven Sotloff and Kayla Mueller, who have fought tire- lessly for a fair trial in the United States. I’ve urged Attorney Gen- eral Barr to do what’s necessary in this case. Today’s news gives new hope that justice will be served.” Asked whom he had contact with, Elsheikh said, “All of them — the famous ones, the known ones; James Foley... Peter, Alan,

David — the major ones that were in the [beheading] videos. “It was more like taking an email,” he said. “It was just on one side of the door, the other side of the door, what’s your email address? What’s the email address of your brother?” He also acknowledged inter- acting with Mueller, who was killed in 20 15, noting that Emwa- zi directed him to get email addresses from her as well. “So I went to her and said, how long have you been here? I don’t know how long she said. I can’t r emem- ber now.” He said he did not torture anyone, but, he acknowledged, “I did things that were not Islami- cally justified.... Harsh treatment. Yeah. I accept t hat [charac- terization].” Kotey, who said he did not see Mueller, said there was “some real effort to negotiate for her release,” w hich ended in a request for $7 million. He did not recall through whom the request was made. “This didn’t go anywhere,” he said. Asked what he would tell the parents of the hostages, Kotey told The Post, “What could I tell them? Is sorry going to be sufficient? I’m sorry of course that that was their fate. “Did we make mistakes? Defi- nitely. Did I do things that I regret? Of course — like my role with the prisoners” in Syria. “I wish,” he said, “I didn’t have anything to do with joining a jihadi organization.” [email protected] [email protected] [email protected] [email protected]

Barr is willing to consider forgoing the death penalty for 2 ISIS militants

Move could aid case against d etainees implicated in beheadings

E l Shafee Elsheikh

Alexanda Kotey

BY JUSTIN WM. MOYER

Coronavirus infections can be
controlled at universities this fall
if students are tested for t he virus
every two days, according to a
study published Friday.
The study was done by re-
searchers from the Yale School of
Public Health, Harvard Medical
School and Massachusetts Gener-
al Hospital and published in the
Journal of the American Medical
Association Network Open. The
study used computer simulations
to show how the virus might
spread among a hypothetical co-
hort of 5,000 students.
In the simulations, 4,990 stu-
dents were assumed to be corona-
virus-free, while 10 were assumed
to be infected. Researchers found
screening every two days using a
rapid, inexpensive test — even
one that was not always accurate
— would “maintain a controllable
number of covid- 19 infections” if
coupled with “strict behavioral
interventions” such as quarantin-
ing positive students in isolation
dormitories.
The study estimated screening
would cost $4 70 per student per
semester and did not consider the
effects of reopening schools on
staff and communities where col-
leges are located. It also said that
monitoring students for symp-
toms was not sufficient and that
logistical challenges such as the
availability of tests or isolation
dormitories “may be beyond the
reach of many university admin-
istrators and the students in their
care.”
But the pace and extent of viral
testing that the study envisions
could be difficult to carry out.
Brett P. Giroir, a top federal
health official overseeing corona-
virus testing, acknowledged to
lawmakers Friday that getting re-
sults back to all patients within
two to three days is not possible
now. Giroir told a House panel
that 75 percent of test results are
coming back within five days.
Still, the study suggested that
with sufficient resources, univer-
sities could reopen.
A. David Paltiel, a professor at

the Yale School of Public Health and the study’s lead author, said the study was undertaken as a consortium of university presidents in the Boston area looked for a way to safely reopen. Paltiel said the frequency of testing is more important than its accuracy. Repeated tests would eventually find the positive cases, he said. While there are risks in any plan to reopen campuses in a pandemic, according to Paltiel, there are also risks to letting students stay at home. “The problem doesn’t go away simply because you don’t reopen campus,” he said. The study comes as many universities, including some in the Washington region, announced plans to move online for the fall semester. Georgetown University and George Washington Univer- sity will remain remote for the rest of the year. Other schools, including Yale and Harvard, plan to welcome some students back to campus. Other schools, such as those in the University of Maryland sys- tem, will require students to test negatively for the novel coronavirus before enrolling. “All college presidents want tests that are fast, cheap and reliable,” said Terry W. Hartle, senior vice president of the Amer- ican Council on Education, a higher education advocacy group. “Unfortunately those don’t exist.” Michael Mina, an epidemiolo- gy professor at Harvard who was not involved in the study, said high-volume testing by universities is “a little bit niche,” but may be the key to safely reopening for the fall semester. While the public, many drug companies and the Food and Drug Administration are focused on tests’ accuracy, Mina said, battling the coronavirus successfully may simply demand testing more often, even if tests aren’t always reliable. Simple at-home tests that pro- vide rapid results are necessary everywhere, Mina said. “This is a very powerful ap- proach to get society running again,” he said. “It’s a way we should all be thinking.” [email protected]

Rachel Weiner and Nick Anderson contributed to this report.

Control virus at colleges

with testing, study says

Monitoring every 2 days would yield ‘controllable’ status, research suggests

vada, and put on hold accommo- dations extended to Idaho resi- dents hoping to collect signatures for an education initiative. On Friday, t he court, on a familiar 5-to- 4 vote, rejected a last- ditch effort to keep Tr ump from using money allocated for the Defense Department to finish re- maining construction of border wall projects in Arizona and New Mexico. “This term isn’t going to end,” said Stephen Vladeck, a law professor at the University of Texas who tracks the court’s emergency actions. Those are cases in which parties ask the court for immedi- ate relief from lower-court orders, without the usual briefing and oral arguments. “There’s g oing to be at l east one more federal death case, more covid orders, and then a rush of election cases, perhaps all before October 5,” when the court’s new term begins, Vladeck said. Other factors have kept the Supreme Court squarely in the public eye. Most notable was Jus- tice Ruth Bader Ginsburg’s an- nouncement in mid-July that she is again battling cancer, sharpen- ing focus on how important No- vember’s presidential election will be in determining the court’s future. And those who closely follow the court are buzzing about a CNN series of stories offering in- sider details about the court’s usually secret decision-making process. That there were leaks from the court to veteran Su- preme Court analyst Joan Bisk- upic was seen as significant as the inside-baseball accounts of negotiations. “The attention that’s been placed on the court has been relentless,” said New York Universi- ty law professor Melissa Murray, who is co-host of a Supreme Court-centric podcast called “Strict Scrutiny.” She said with a laugh, “We were supposed to have a break.” Because the pandemic disrupt- ed the court’s work schedule, causing some cases to be post- poned until the fall, Murray n oted that the court decided its lowest number of cases since the Civil War. “But we’ve never talked about the court more than we did this year,” s he said. And that partly is a reflection of its “enormous, out- sized role in the way things work.” If the number of cases decided in the term was smaller, the im- pact was huge. The court decided that federal anti-discrimination law enacted in 1964 should be read to cover LGBTQ employees. It s topped the Tr ump administration’s plan to end the Obama-era protection of undocumented immigrants brought here as children. It s truck down a Louisiana law in the court’s first look at a bortion rights since Tr ump’s two nominees, Neil M. Gorsuch and Brett M. Ka- vanaugh, joined the bench. It decided a trio of cases to the satisfac- tion of religious conservatives. Chief Justice John G. Roberts

COURT FROM A

Jr. was the only member of the court in the majority of all of those cases. But not all of them were 5-to-4 decisions, and the term was marked by concessions that often allowed some crossover among the liberal and conservative justices. Normally, the court would dis- perse after such a term; teaching law classes in lovely places is usually a staple of Supreme Court life. But the pandemic has changed that. The justices have been working mostly in isolation since March, and sightings are rare. Justice Sonia Sotomayor was seen paying tribute to Rep. John Lewis as his casket w as on display in the Capitol. Ginsburg has been hospitalized at Johns Hopkins in Baltimore and Memorial Sloan Kettering in New York. She was discharged and at home Friday. Justice Stephen G. Breyer ad- dressed the virtual convention of the American Bar Association from a r ustic-looking cabin. And all the while, the court has faced an abnormal number of emergency petitions. It has taken action in six cases in the past three weeks, and others are pending. By comparison, there was only one emergency order last July, and none the year before that. Vladeck offers four factors for the change: an especially divisive

election year; a pandemic that has provoked novel state and local restrictions; the court’s “lowered bar” for intervening in emergency cases; and the altered life conditions for the justices and, presum- ably, lawyers. Those first two conditions alone might be enough to keep the court busy: Justin Levitt at L oyola Law School in Los Angeles has counted 170 coronavirus-related election lawsuits in 41 states and the District of Columbia. The emergency requests’ out- comes have almost uniformly fall- en along ideological lines, without the effort at compromise found in the court’s decisions from the term. In Friday’s decision about the border wall, Breyer lamented that even if the court eventually takes up and decides against the legali- ty of Tr ump’s transference of Pen- tagon funds to pay for the border wall, it will be too late. Sharply worded dissents are common, and Sotomayor has de- livered most of them. “The court accepts the government’s artificial claim of urgency to truncate ordinary procedures of judicial review. T his sets a dan- gerous precedent,” Sotomayor wrote in Tuesday’s opinion, in which she was joined by Justice Elena Kagan and Ginsburg. She added that “because of the court’s rush to dispose of this litigation in an emergency posture, there will be no meaningful judicial review of the grave, fact-heavy challenges respondents bring to the way in which the government plans to execute them.” In the Florida case, Sotomayor said the court’s action “prevents thousands of otherwise eligible voters from participating in Flori- da’s primary election simply because they are poor.” A notable exception: Roberts sided with the court’s liberals in upholding Nevada’s restriction that no more than 50 people are

allowed at worship services, even though the state’s famed casinos have reopened. The same five justices earlier had turned away a challenge to California’s restrictions. The Nevada case provoked Jus- tice Samuel A. Alito Jr. “The Con- stitution guarantees the free exer- cise of religion,” he wrote in dis- sent. “It says nothing about the freedom to play craps or black- jack, to feed tokens into a slot machine, or to engage in any other game of chance. But the governor of Nevada apparently has different priorities.” Murray said the court’s actions in the emergency cases on what some have called the court’s “shadow docket” don’t command the same attention as rulings in cases that have gone through the process of extensive briefings and public oral arguments. What does refocus the public on the court, she said, are things like Ginsburg’s revelations about her health. The 87-year-old said after the term ended that lesions on her liver were discovered in February. She began immunotherapy, but it was unsuccessful. She now is un- dergoing biweekly chemotherapy, and it has helped keep the cancer at bay, she said. She disclosed the cancer — she has had three previ- ous bouts — only after settling on her treatment plan. If Ginsburg’s health were to force her off the court, Tr ump would try to name her successor before the election, and Senate Majority Leader Mitch McCon- nell (R-Ky.) has made clear he would do his best to secure the votes. But even if Ginsburg’s depar- ture were to be imminent or somewhere down the road, her illness and age will focus attention on “who on the ballot will be the one to name her successor,” Murray s aid. [email protected]

For high court, a summer of c onsequential actions

CALLA KESSLER/THE WASHINGTON POST Supreme Court Justice Ruth Bader Ginsburg chats with Chief Justice John G. Roberts Jr. before a White House ceremony in 2018. Ginsburg’s health has put a lot of focus on the court this summer.

“The attention that’s

been placed on the court

has been relentless. We

were supposed to have

a break.” Melissa Murray, New York University law professor

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