(Photo by Zach Gibson/Getty Images)
A shibboleth of right-wing American politics is a steadfast commitment to the death penalty as a moral good unto itself. Innocent or guilty, all that matters is the machine of Judge Dredd-level violence roll on. Government officials aren’t even above making illegal transactions with shady overseas drug dealers to keep it going. And now, courtesy of a decision from the UK Supreme Court, Jeff Sessions and Mike Pompeo and the rest of the Trump crew appear to have botched the prosecution of a pair of notorious terrorists rather than just give up on the death penalty.
Way to go, guys.
El Shafee Elsheikh and Alexanda Kotey are allegedly a pair of ISIS executioners that the U.S. has successfully captured. They were UK citizens until the Brits stripped them of their citizenship, but the UK doesn’t want to attempt prosecuting them out of concern that they might fail to secure a conviction. However, the United States has a lower bar to clear on that score, making it convenient to just let the Americans go ahead with the case since they already have them in custody anyway.
But, of course, the UK has banned the death penalty and requires its government to receive assurances that other countries won’t seek the death penalty before handing over investigative material that could be used in a trial.
After talking to Trump’s team, the Tory government realized they weren’t going to get that and decided to go ahead and illegally hand over the material anyway. The UK Supreme Court is… not pleased with this.
According to documents, Jeff Sessions complained to the former UK Home Secretary that “the U.S. should not be left to assume responsibility for ‘other nations’ terrorist fighters,’” an uncharacteristic departure from American Exceptionalism — these people murdered Americans, Americans have them in custody, America should be ready to prosecute them. Whether or not that’s the proper international norm, that’s absolutely the norm the Republican base wants to see.
And the cognitive dissonance probably stems from this all being a bluff to force the UK to turn over the extensive evidence it had gathered on the pair. At the very hint that this transfer might be conditioned upon a death penalty waiver, the former UK ambassador to Washington wrote:
“Their reaction is likely to be something close to outrage,” Darroch warned, adding that it might “wind up” President Donald Trump.
“They already feel that we are dumping on them a problem for which we should take responsibility. They have been signaling to us for weeks now that we are in no position to attach any conditions to this,” he wrote.
Thus, in spite of its legal obligations, the UK government wrote Sessions explaining that they had no problem with the death penalty and handed over the material. Unsurprisingly, this seems to have ended the administration’s outrage over prosecuting two former British nationals.
The UK Supreme Court, delivering a video opinion because of coronavirus, was appropriately flabbergasted:
In his judgment, Lord Robert Carnwath concluded that the information in question was transferred “without any safeguards at all.”
He said the decision was based on “political expediency, rather than consideration of strict necessity under the statutory criteria.”
The court criticized the British government for abandoning a “principled approach” to the death penalty because it was “coming under, and might become susceptible to, political pressure from the U.S.”
The justices said there were suggestions that “pragmatic considerations, at the expense of a principled approach, might begin to influence the UK’s reaction to the demand that it should cease its lobbying in relation to the death penalty assurances.”
Make no mistake here, Jeff Sessions and the rest of the Trump team have undermined — perhaps, but not necessarily, fatally — the prosecution of American-killing terrorists because they couldn’t let go of the death penalty. Is this really a higher principle than getting justice? The risk that their collective manhood would be wounded by holding these folks in prison for life was so dire that they risked the possibility of convicting them at all. Get your priorities straight, people!
Now, robbed of this evidence, the U.S. will have to be content renditioning these people to some black site and hold them forever without oversight. The good news for the administration is that unlike the Brits, the U.S. Supreme Court has little to no stomach for telling its political branches “no.”
U.K. broke law by sending evidence on ISIS ‘Beatles’ to U.S., court rules [NBC News]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.