The move came after the United States military took custody of the two British men, Alexanda Kotey and El Shafee Elsheikh, almost two weeks ago.
“Due to the change in circumstances the CPS are reviewing the evidence in accordance with the Code for Crown Prosecutors,” a CPS spokesperson told The Washington Post on Monday. The decision has not been previously reported.
Kotey and Elsheikh, part of a cell of four British militants dubbed the “Beatles” by their hostages because of their accents, were handed over to the Americans by Kurdish allies in Syria and taken to a detention facility in Iraq — removing an obstacle to a British prosecution, said several people familiar with the matter, who spoke on the condition of anonymity to discuss a sensitive case.
Kotey and Elsheikh were captured in early 2018. Earlier, British prosecutors had argued that they were prevented from extraditing the men because they were being detained by the Kurdish-led Syrian Democratic Forces, a nonstate entity, making their transfer difficult.
The men, whose British citizenship was revoked over their alleged affiliation with ISIS, are believed to be part of the cell suspected of crimes, including the beheading of Americans James Foley, Steven Sotloff and Peter Kassig, as well as two British aid workers.
The possible shift comes as the High Court in London said it had postponed a hearing scheduled for Tuesday in a related case brought by Elsheikh’s mother, Maha Elgizouli, who wants the court to rule that her son should be tried in Britain and not in the United States, where he could face the death penalty.
In the turmoil following Turkey’s invasion of Syria earlier this month, the pair were transferred to U.S. custody with the goal of putting them on trial in the United States, The Post reported previously. President Trump personally approved the move and discussed it with British Prime Minister Boris Johnson, said a senior U.S. official familiar with the matter.
Prosecutors in the Eastern District of Virginia had been optimistic about bringing a case against the two men, assuming they could obtain evidence gathered by British prosecutors.
But Elgizouli has sued the government to force a trial in Britain, and also to prevent the sharing of British evidence with the Americans absent a guarantee that the death penalty is off the table.
The Justice Department declined to comment, as did lawyers for Elgizouli.
The families of American hostages killed by ISIS said their main concern is that the Beatles be brought to justice. They also have opposed any prosecution that involves the death penalty.
“I am certainly okay with them going to the United Kingdom — they are citizens of the U.K.,” said Diane Foley, the mother of one of the slain Americans. “My only concern is that all the evidence can be used to find out if they were the British jihadists who kidnapped, tortured and killed our U.S. citizens and the British citizens.”
Said Foley: “I want to make sure that all their crimes can be assessed and can be prosecuted fully. They shouldn’t just get a slap on the wrist.”
British government officials have long asserted that prosecutors lack sufficient evidence to try the two men in British courts. However, it was revealed in June through Elgizouli’s court case that prosecutors had secretly issued an arrest warrant for Kotey in February 2016 on five charges of murder and eight charges of hostage-taking. The punishment for both murder and hostage-taking is life in prison.
Prosecutors also acknowledged to Elgizouli’s lawyers that they had sufficient evidence to charge Elsheikh with membership of a proscribed organization: ISIS. The maximum penalty is 10 years in prison.
Prosecutors in the Eastern District of Virginia have expressed confidence that they can prosecute the two men for a conspiracy to take hostages that resulted in death, but they planned to rely on evidence from the British. That evidence includes voice analysis believed to tie the two to the Beatles and details about how they got to Syria. The contemplated charge carries a potential death sentence.
The Supreme Court is expected to issue a ruling in the coming weeks on the issue of sharing evidence gathered by British investigators with American prosecutors.
Rachel Weiner contributed to this report.