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Trump administration divided over how to handle two ISIS militants

A Syrian family cooks amid the rubble in Raqqa, the Islamic State’s former "capital" in Syria, on Jan. 11, 2018. (Delil Souleiman/AFP/Getty Images)

The Trump administration is divided over how to handle two captured Islamic State militants who belonged to a cell that held, tortured and killed Western hostages.

Some senior officials, including President Trump’s top counterterrorism adviser, Thomas P. Bossert, favor sending the pair to the military prison at Guantanamo Bay in Cuba, according to a U.S. official familiar with the matter. Last month, Trump signed an executive order keeping the facility open, allowing the United States to transport new detainees there.

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But senior officials at the Pentagon and State Department as well as the families of American hostages killed by the group want the men brought to the United States for a criminal trial, said the official, who like others interviewed, spoke on the condition of anonymity to describe internal discussions.

No final decision has been made about how to handle El Shafee Elsheikh and Alexanda Kotey, who were detained in early January in eastern Syria by the Syrian Democratic Forces, a Kurdish-dominated group and U.S. ally fighting the Islamic State, senior officials said. Bossert has instructed officials to consider all options, they said.

The men, who grew up in Britain, had traveled to Syria to fight with the Islamic State and were part of a four-person cell known as the “Beatles” because of their British accents.

Trump campaigned on a vow not only to keep open the facility that his predecessor wanted closed, but to “load it up with some bad dudes.” But there is significant public pressure on the administration — domestically and in Europe — to avoid sending new detainees to the prison, which has become a symbol for detainee and human rights abuses. Moreover, some current and former national security officials do not view military trials as an effective way to try suspected terrorists.

“Together with our coalition partners, we are still considering options regarding Elsheikh and Kotey, but rest assured our intention is to hold anyone accountable who commit heinous acts against innocent people like they are alleged to have committed,” Justice Department spokesman Ian Prior said Friday.

Attorney General Jeff Sessions has been an outspoken supporter of continuing to use Guantanamo as a prison and supports Trump’s effort to find a way to speed up the military trial process. But he has not expressed an opinion on this case, one U.S. official said.

The two men have been questioned by U.S. officials, including Special Operations forces, for “operational intelligence,” said two national security officials.

Elsheikh and Kotey were the last of the four Beatles to be detained. The ringleader and most notorious of the quartet, Mohammed Emwazi — a Briton known as “Jihadi John” — was killed in a 2015 drone strike in Syria. He was seen in gruesome videos beheading American journalists James Foley and Steven Sotloff and other hostages. The fourth member of the cell, Aine Davis, was detained in Turkey.

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“I am very grateful that these two jihadists have been apprehended and I am hopeful that they can be held accountable for the crimes,” said Diane Foley, whose son James was beheaded in 2014. “It is the first step.” Foley said she hopes the men “will get a fair and public trial and that their crimes will be known to the world.”

Said Foley: “I certainly don’t want them to go to Guantanamo or any place like that, because something like that would just bury the truth. I think there needs to be a public, open and fair trial.”

The families are primarily concerned that the killers face justice, but also that their loved ones’ remains are returned, said current and former officials and others involved in recovery efforts.

The British government has stripped the citizenship of the men, who both grew up in west London. Elsheikh was born in Sudan. Kotey, who has a Ghanaian and Greek Cypriot background, was born in London. The State Department last year designated both men as foreign terrorists.

Kotey was a guard for the cell and “likely engaged in the group’s executions and exceptionally cruel torture methods, including electronic shock and waterboarding,” the department said.Some of the hostages held by the cell are British, including John Cantlie, a war correspondent. His whereabouts are unknown.

Elsheikh “earned a reputation for waterboarding, mock executions and crucifixions while serving as an ISIS jailer,” the department said.

U.S. and British officials have held preliminary discussions regarding the fate of the two men, but no decision about where or when they may be brought to justice has been reached, according to people familiar with the case.

A British government official declined to comment.

One former senior U.S. national security official said he expects the British would defer to the Americans, as long as the Trump administration does not seek to put the men in Guantanamo for an eventual military trial. The Syrian Kurdish forces have a much deeper relationship with the United States than with Britain, and they would be expected to work closely with U.S. officials in this matter, officials said.

Any effort to transfer Kotey and Elsheikh to Guantanamo will run into stiff head winds.

“Sending them to Guantanamo to be prosecuted in the military commission or detained there would be a serious mistake,” said Rita Siemion, international legal counsel at Human Rights First. “The federal courts have a proven track record for handling international terrorism prosecutions quickly and effectively, while military commissions are just the opposite.”

Siemion noted that in November, after a suspected terrorist plowed a pickup truck into passersby in Manhattan and killed eight people, Trump acknowledged that fact.

“Would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer than going through the Federal system,” he tweeted.

Since 9/11, federal prosecutors have obtained hundreds of convictions in civilian courts, while the masterminds, who were indicted in 2009 and remain incarcerated at Guantanamo, have not been tried. The earliest that might happen now is 2019.

“Bringing these men to Guantanamo is risky for a number of reasons,” said Jennifer Daskal, a former senior official in the Justice Department’s national security division.

“Most importantly they are connected to ISIS, as opposed to al-Qaeda, and the Supreme Court has never authorized the detention of ISIS fighters,” she said using an acronym for the Islamic State. “Bringing these men to Guantanamo would put their detention and possible prosecution on shaky legal grounds and set up a good legal basis for them to challenge their detention.”

Such a legal battle could undermine the U.S. government’s overseas military operations if a court rules that the government has no authority to detain ISIS militants under a 2001 Authorization for Use of Military Force passed by Congress to be used when going after al-Qaeda and its affiliates.

Karla Adam in London and Paul Sonne in Washington contributed to this report.