Last summer, U.S. forces conducted a raid in Syria that resulted in the capture of Umm Sayyaf, an ISIL member involved in the imprisonment and rape of women including American citizen Kayla Mueller. She was in U.S. military custody long enough to allow for interrogation both by the HIG and by a subsequent FBI clean team, but was not ultimately brought to the United States for trial. Instead, she was transferred to Kurdish authorities to face trial there. As Shane Harris reported at the time, unnamed officials explained that her Iraqi citizenship made removal too difficult, and anyway there supposedly was not enough admissible evidence available to support prosecution in the U.S.
This was disturbing at the time, with echoes of the Ali Musa Daqduq mess (also in Iraq) from a few years ago. But at least there seemed to be a strong likelihood that the Kurds would prosecute Umm Sayyaf, something was never particularly likely with Daqduq. And, in any event, if she truly could not be prosecuted effectively in the U.S., then there was no point in complaining about the transfer.
Well...yesterday, quite remarkably, DOJ announced that it has belatedly filing charges against Umm Sayyaf after all, in connection with the rape, captivity, and death of Kayla Mueller. The complaint and accompanying affidavit are here. And so a huge question arises: is Umm Sayyaf going to face justice in an American court after all?
Shane Harris at Daily Beast suggests that we should not get our hopes up:
But the ISIS widow, known as Umm Sayyaf, is unlikely ever to see the inside of a U.S. courtroom as she is already in custody in Iraq. A U.S. official told The Daily Beast that the charges against her were more of an “insurance policy” in case Iraqi officials fail to charge her or she is ever transferred to another country or she escapes prison.
Ok, so if that is correct then we are back where we were, awaiting prosecution by the Kurds. And how is that coming along? Not great. Harris reports:
Officials told The Daily Beast at the time that they expected the Kurds to “throw the book” at her and that justice would be swift. But nine months later, there have been no reports of charges filed against Umm Sayyaf.
One hopes this simply reflects the slow pace of things in that system, and is not indicative of a lack of will to prosecute Umm Sayyaf. But if this case ultimately goes the way of Daqduq, with Sayyaf walking free, hard questions need to be asked. As Harris notes, officials have said that they just had no choice but to transfer Umm Sayyaf to Iraqi custody last year, because she is Iraqi, there is no US-Iraq extradition treaty, and Iraqi law precludes Iraq from allowing a citizen to be removed from the country. These are not irrelevant considerations, to be sure, but they are not automatically conclusive either. Things I would want to know in order to assess them: Would the Kurdish authorities to whom we actually transferred her really care if we had instead rendered her to justice in the United States? Authorities in Baghdad, for their part, would have cared, but just how costly would removal of Umm Sayyaf have been in terms of war-related cooperation, and to what extent could offsetting pressure have been brought to bear to prevent such costs in part or even in whole? And what is the strength of DOJ's evidence against Umm Sayyaf (supposedly not strong enough at the time, but now there is a complaint...though not yet an indictment, which perhaps is telling)? It's pretty much impossible to assess any of these factors from the outside, alas.
There is a larger question here about the costs of going to war on a model in which we rely entirely on local partners to handle detention of captured enemies and also prosecution in cases of war crimes, particularly where the person at stake has harmed Americans. It may be that the Umm Sayyaf case ultimately will demonstrate, after all, that this model at times results in someone walking free who certainly should not. That is a point worth bearing in mind and affirmatively acknowledging, even if the offsetting considerations (i.e., minimizing the huge costs and frictions that follow from having a larger detention/prosecution role) outweigh it.