Federal Courts Can Handle Captured ISIL Suspects

Last week, The Daily Beast reported that the United States is holding Umm Sayyaf, the wife of ISIL official Abu Sayyaf, possibly indefinitely, as it debates what to do with her. Some, like Rebecca Ingber, writing for Lawfare, say this suggests the Obama Administration doesn’t have a concrete plan for what to do with captured ISIL members, and that some could not be prosecuted in U.S. courts.

But while temporary detention and transfer to Iraqi authorities may be the preferred option, it’s wrong to imply that active ISIL members and supporters could not successfully be prosecuted.

Indeed, the U.S. laws criminalizing material support for terrorist organizations are so broad that it’s difficult to imagine a scenario in which an ISIL member could not be brought to the U.S. for prosecution. As we’ve seen in the hundreds of cases involving al Qaeda supporters, federal courts offer a solid recourse for both obtaining intelligence and trying terrorists and their supporters.

The U.S. government has tried dozens of people caught in the United States for plotting on behalf of or inspired by ISIL or attempting to join its ranks. It could do the same to people caught overseas.

ISIL is a State Department-designated Foreign Terrorist Organization, which means that aiding the organization in any number of ways (including providing services or personnel to it for the purpose of committing terrorism) is a prosecutable crime, even if the United States is not formally at war with ISIL.

After Umm Sayyaf’s capture, the U.S. is reportedly examining intelligence that indicates that the wives of ISIL’s leaders are heavily involved with the organization’s operations and communications. If this is true, even more federal charges would be available for prosecuting people like Umm Sayyaf.

For those clamoring to have ISIL members sent to Guantanamo to face interrogation and trial there, it’s not only a bad idea, given how many have ended up stuck there at a huge cost to U.S. taxpayers; it’s also totally unnecessary. Federal courts have prosecuted more than 500 terrorism suspects since 9/11, including some supporters of Al Qaeda in Iraq, ISIL’s predecessor. Sixty-seven of these suspects were captured abroad. ISIL members who have committed atrocities could even be prosecuted under the federal War Crimes act.

According to David Kris, former Assistant Attorney General for National Security, the federal court and law enforcement system is highly adept at obtaining valuable intelligence from suspects, even after they’ve been provided Miranda warnings. As Kris pointed out in 2011, the FBI got mounds of intelligence from al Qaeda suspects, including telephone numbers and email addresses used by the organization, information on recruiting techniques, finances, geographic reach, tradecraft to avoid detection, weapons programs and training, locations of safe houses and training camps, communication methods and security protocols, identities of operatives involved in past and planned attacks, as well as information about forthcoming plots.

Guantanamo, on the other hand, has turned out to be a terrible place to obtain intelligence, and its military commissions are in shambles. The 9/11 case remains stuck in pre-trial hearings with no sign of an actual trial on the horizon. U.S. courts have now repeatedly affirmed that military commission convictions on charges of conspiracy and material support are invalid, leaving half of the eight commission convictions void (with at least one more likely to be overturned soon).

Though she is not advocating for transfer to Guantanamo in her post, Ingber’s assertion that “if they bring Umm Sayyaf to Guantanamo … she will have her day in court” looks more unlikely by the day. Federal prosecution would be the best way to make sure she faces justice.

As Robert Chesney notes, as the conflict with ISIL deepens, the United States may capture more ISIL members. But there’s no reason to indefinitely detain these prisoners while hand-wringing over where they should go. If we’re not turning captured ISIL members over to Iraq, the federal justice system is quite capable of prosecuting them.


Published on June 17, 2015


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