The ISIS Beatles: A Challenging Process of Extradition by James G. Pizzo
After nearly ten years since the brutal kidnapping, torture, and murder of James Wright Foley, an American journalist, two of the men responsible are finally facing justice in a United States courtroom. Former British citizens Alexanda Amon Kotey and El Shafee Elsheikh were part of a group of ISIS fighters dubbed the “ISIS Beatles” for their English accents and English background. Kotey, Elsheikh, Mohammed Emwazi, and Aine Lesley Davis carried out a campaign of kidnappings and murders between 2012 and 2015. Their victims include American journalists James Wright Foley and Steven Sotloff and American aid workers Kayla Jean Mueller and Peter Edward Kassig.
For Mohammad Emwazi and Aine Lesley Davis, there were no extradition proceedings. Emwazi was killed by an American drone strike in 2015 while Davis was convicted and sentenced to 7.5 years in Turkey in 2017. Due to the poor relations between the United States and Turkey, extradition to the United States was not feasible for Davis.
However, extradition awaited Kotey and Elsheikh. In 2018, American-backed Kurdish forces captured Kotey and Elsheikh, and the extradition proceedings began. Despite an extradition treaty in place between the United States and the United Kingdom, the process of getting Kotey and Elsheikh onto United States soil was not without political interference and delay.
II. The Extradition Process and Complications
Extradition is the surrender by one nation to another of an individual accused or convicted of an offense outside of its territory and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender. In the United States, the legal frameworks governing extradition are found in an extradition treaty between nations and the international extradition statute (18 U.S.C. §§ 3181, 3184, 3186, 3188-3191)).
When an individual is wanted in the United States, the Office of International Affairs will work with the prosecutor to prepare a request for extradition to be submitted to a foreign country. Next, the State Department will submit the request to the foreign country through diplomatic channels. Then, the foreign country will process the request according to its laws and regulations. Because each country has a different process for handling extradition and the United States has no control over a foreign country’s process, the extradition timeline can be unpredictable.
For the ISIS Beatles, the United States faced difficulty in obtaining crucial evidence from the United Kingdom that was essential to extradite and prosecute Kotey and Elsheikh. Normally, such information would flow freely as there is a lengthy history of extradition treaties between the United States and the United Kingdom, dating back as early as 1794. However, the evidence here was tied up in political and legal challenges because of the possibility that the death penalty was awaiting Kotey and Elsheikh in the United States. The United Kingdom opposes the death penalty so it sought full-scale assurances from the United States that they would not pursue a death sentence. Assurances are routine in extradition cases to territories where capital punishment exists, and the United Kingdom was required by the European Court of Human Rights to obtain them. The United States initially refused to waive seeking the death penalty. As a result, the Supreme Court of the United Kingdom froze the evidence.
To overcome the impasse between the two nations, in August 2020, United States Attorney General William Barr reversed his position and assured to the United Kingdom that the United States would not seek the death penalty. While this might be seen as a “win” for the United Kingdom, Attorney General Barr warned that if the United Kingdom did not share the critical evidence by October 15, 2020, the United States would transfer Kotey and Elsheikh to the custody of Iraq, who would likely execute the two men. Despite the questionable legality of whether the United States could effectively outsource a prisoner’s execution to another country, the United Kingdom promptly shared the sought-after evidence.
After years of investigation and obtaining all the necessary evidence, the United States successfully extradited Kotey and Elsheikh. Initially, both men plead not guilty to terrorism-related charges at their arraignment in the United States District Court Eastern District of Virginia. Nearly a year later, however, Kotey reached an agreement with federal prosecutors and pled guilty to all charges, including his role in the murders of the American citizens. Acting Assistant Attorney General Mark J. Lesko ensured that Kotey will spend the rest of his life in prison. Kotey is expected to be sentenced in March 2022. Meanwhile, Elsheikh has refused to change his not guilty plea, and has unsuccessfully attempted to throw out incriminating statements he made as part of the United States’ evidence against him. Elsheikh is set to face trial in March 2022. Thus, after a long and drawn-out process, the remaining ISIS Beatles are finally facing justice on United States soil.
The case of the ISIS Beatles represents the long and complex process of extradition. When nations do not have an extradition treaty or have poor relations, it is nearly impossible to extradite individuals between those countries. Failing to secure extradition can lead to injustice, political leveraging, or even worse foreign relations. Moreover, even if nations have an extradition treaty in place, political or legal challenges can interfere with the process, creating delay and frustration. Thus, extradition is not a simple process and can take many years to obtain, but in the case of the ISIS Beatles, none of the four men have escaped justice.
 Anna Schecter, ISIS ‘Beatle’ pleads guilty in U.S. court to helping torture, kill hostages, including Americans, NBC News (Sept. 2, 2021, 5:40 PM), https://www.nbcnews.com/politics/justice-department/isis-beatle-pleads-guilty-u-s-court-helping-torture-kill-n1278388.
 Christine Carrega and Liz Stark, ISIS fighter in overseas ‘Beatles’ cell pleads guilty to killing Americans and other hostages, CNN (Sept. 2, 2021, 11:47 PM), https://www.cnn.com/2021/09/02/politics/isis-beatles-alexanda-kotey-pleads-guilty/index.html.
 Schecter, supra note 3.
 Roberto Iraola, Due Process, the Sixth Amendment, and International Extradition, 90 Neb. L. Rev. 752, 753 (2012) (citation and quotation marks omitted).
 Id. at 753-54 (2012) (citation omitted).
 Regarding Extradition, Dep’t of Just. (Nov. 27, 2020), https://www.justice.gov/criminal-oia/frequently-asked-questions-regarding-extradition#:~:text=When%20the%20person%20is%20wanted,foreign%20country%20through%20diplomatic%20channels.
 See id.
 Adam Goldman and Charlie Savage, Islamic State ‘Beatles’ Jailers Are Charged in Abuse of Murdered Hostages, The NY Times (Oct. 7, 2020), https://www.nytimes.com/2020/10/07/us/politics/beatles-islamic-state.html.
 Fern L. Kletter, Extradition Treaties Between United States of America and United Kingdom of Great Britain and Northern Ireland—United States and United Kingdom Cases, 45 A.L.R. Fed. 3d Art. 6 (2019)
 Tenya Mehra, The long and winding road to bringing the ISIS ‘Beatles’ to justice, Int’l Ctr. for Counter-Terrorism (Aug. 27, 2020), https://icct.nl/publication/the-long-and-winding-road-to-bringing-the-isis-beatles-to-justice/.
 Michael Plachta, UK Court Lifts an Obligation to Seek Assurances from Use in a Death Penalty Case, 35 Int’l Enforcement L. Rep. 76 (2019)
 Letta Tayler, “The Beatles”and the Bomber: Barr’s Decisions on Executing Terrorists, Just Sec. (Aug. 28, 2020), https://www.justsecurity.org/72185/the-beatles-and-the-bomber-barrs-decisions-on-executing-terrorists/.
 Goldman and Savage, supra note 14.
 Tayler, supra note 19.
 Goldman and Savage, supra note 14.
 Dep’t of Just., supra note 1.
 Schecter, supra note 3.
 ISIS Militant Pleads Guilty to Role in Deaths of Four Americans in Syria, Dep’t of Just. (Sept. 2, 2021), https://www.justice.gov/opa/pr/isis-militant-pleads-guilty-role-deaths-four-americans-syria.
 Schecter, supra note 3.
 The Associated Press, Judge rejects torture claims by Islamic State defendant, CBS 19 News (Jan. 7, 2022, 8:20 PM), https://www.cbs19news.com/story/45606937/judge-rejects-torture-claims-by-islamic-state-defendant.
 Rachel Weiner, Prosecutors use words of British ISIS militant against him, The Wash. Post (Dec. 18, 2021, 8:00 AM), https://www.washingtonpost.com/dc-md-va/2021/12/18/elsheikh-isis-hostages-trial/; Associated Press, Defense Lawyers Seek to Restrict Testimony From ISIS ‘Slave’, Voice of America (March 02, 2022, 10:29 PM), https://www.voanews.com/a/defense-lawyers-seek-to-restrict-testimony-from-isis-slave-/6467973.html.
Banned Substances and the Olympics: Examination of Laws Governing Marijuana Use by Thomas Larounis
The World Anti-Doping Agency (“WADA”) has long stood as one of the leaders in promoting fair and drug-free athletic competition. Established in 1999, WADA was created to “protect athletes, promote the values of clean sport, and preserve the spirit of sport internationally.”[i] In the summer of 2020, WADA created headlines when it suspended a gold mentalist contender in the women’s 100-meter race for the 2020 Summer Olympics, Sha’Carri Richardson, after she tested positive for a WADA banned substance.[ii] The drug in question was marijuana.[iii] Richardson explained that she had used marijuana legally after learning about the death of her biological mother.[iv] A litany of mixed responses, both from the international community and United States, followed. Many called for the removal of marijuana from the list of WADA banned substances. Others questioned why the substance was on the list at all. For Richardson, the suspension resulted in her inability to participate in the 2020 Summer Olympics.[v]
II. The World Anti-Doping Code and the United States Anti-Doping Agency
The regulations and rules that WADA enforces are derived from the World Anti-Doping Code (the “Code”). [vi] At one hundred and eighty-four pages, the Code lists several hundred substances, including but not limited to: “steroids, masking agents, stimulants, recreational drugs[,]” and marijuana.[vii] In order for a substance to make its way onto the Code’s list of banned substances, it must meet two of the three following conditions: (1) “have the potential or proven ability to enhance performance[;]” and (2) “have the potential to cause harm to an athlete, or (3) their use is considered against the spirit of sport.”[viii]
In 2011, WADA published “Cannabis in Sport: Anti-Doping Perspective” in the journal of Sports Medicine.[ix] Within the article, WADA explained its reason for banning marijuana.[x] The main issue pertained to risk perception being a potential health risk.[xi] Essentially, because marijuana can “impair essential technical skills,” athletes would be at a heightened risk of injury in instances where their motor vehicle skills are essential.[xii] For example, perhaps a gymnast’s timing or balance being impaired could result in a fall and a major injury. In the realm of performance enhancement, WADA recognized the perception that marijuana is often portrayed as a negative on performance.[xiii] However, according to some studies, marijuana increases vasodilation and bronchodilation which suggests that ingestion of marijuana could improve oxygenation in athletes.[xiv]
Furthermore, WADA focused on marijuana’s ability to “help athletes better perform under pressure and to alleviate stress experienced before and during competition.”[xv] At the time, marijuana was still regarded as an illicit drug, which also added to WADA’s reasoning that its use is “not consistent with the athlete as a role model for young people around the world.”[xvi] A counter to this argument could be that substances like cigarette and alcohol both garner their own types of side effects and social harm. Yet, both substances are not banned by WADA. In 2019, WADA removed “cannabidiol” better known as CBD, from the banned list, while keeping all other cannabinoids prohibited. [xvii]
While WADA has become something of a household name in the wake of major Olympic doping scandals including and news headlines regarding failed athlete drug tests, it is not the only agency that conducts anti-doping testing at the highest caliber. The United States Anti-Doping Agency (“USADA”) is a non-profit anti-doping agency tasked with “managing the anti-doping program, including in-competition and out-of-competition testing, results management processes, drug reference recourses, and athlete education for all United States Olympic & Paralympic Committee recognized sport national governing bodies, their athletes, and events.”[xviii] Essentially, the organization is tasked with applying and implementing testing policies set by a respective association.[xix] For example, along with testing for the Olympics, USADA is also the official anti-doping agency for the Ultimate Fighting Championship (the “UFC”).[xx] The UFC may test or ban different substances than the Olympics.[xxi]
Partly due to its structure of federalism and states’ rights, the United States’ position on marijuana is conflicting. Despite marijuana’s legalization across many states, it is still categorized as a Schedule I substance under the U.S. Controlled Substances Act.[xxii] However, regardless of whether an athlete resides in a state where marijuana is legal, or even if the federal government were to legalize the drug, this would have no effect on its WADA status.[xxiii]
III. Going Forward: Will WADA Adopt the UFC’s Stance on Marijuana?
USADA’s other client, the UFC, has begun loosening its own marijuana restrictions.[xxiv] The UFC instructed USADA that beginning January 1, 2021, “a positive drug test for carboxy-THC, the psychoactive ingredient in cannabis, will no longer be considered a violation.”[xxv] The UFC will only consider such test result a violation if USADA can prove the use of marijuana was done for some form of performance-enhancing purpose.[xxvi] In essence, this decision by the UFC increases the burden of proof on USADA, while also “de-emphasizing marijuana sanctions completely.”[xxvii] The UFC took this stance because “there is no scientific correlation between levels of THC being in urine or blood samples and actual impairment.”[xxviii] Jeff Novitzky, the UFC Senior Vice President of Athlete Health and Performance, stated the following: “why the hell do we care what someone did a week before, let alone a night before, when it does not have any effect on their ability to fight.”[xxix] The caveat to this change in policy is that while the UFC may no longer be focusing on marijuana, that decision does not preclude individual state athletic commissions from continuing to test and punish athletes for marijuana being in their systems.[xxx]
The UFC’s decision could undercut the WADA’s and Olympic Committee’s athlete safety argument since professional MMA fighters rely heavily on their motor skills. However, the different treatment could result from the different perceptions of the role model status of Olympic athletes compared to MMA fighters. Time will tell whether the WADA will loosen its current position on marijuana.
[ii] Kevin Draper and Juliet Macur, Sha’Carri Richardson, a Track Sensation, Tests Positive for Marijuana, New York Times (July 1, 2021), https://www.nytimes.com/2021/07/01/sports/olympics/shacarri-richardson-suspended-marijuana.html.
[iii] Adam Kilgore and Rick Maese, The Doping Rules That Cost Sha’Carri Richardson Have a Debated, Political History, The Wash. Post (July 3, 2021, 4:45 PM), https://www.washingtonpost.com/sports/olympics/2021/07/03/shacarri-richardson-marijuana-olympics-doping-ban/ [hereinafter Doping Rules].
[vii] Doping Rules, supra note iii.
[ix] Marilyn Huestis et al., Cannabis in Sport: Anti-Doping Perspective, 41(11) Sports Med. 1 (Nov. 1, 2011), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3717337/pdf/nihms486945.pdf.
[xxii] Marijuana FAQ, USADA, https://www.usada.org/athletes/substances/marijuana-faq/ (last visited Mar. 1, 2022).
[xxiv] Marc Raimondi, USADA ‘Essentially’ Eliminating Marijuana Use as UFC Violation, ESPN, (Jan. 14, 2021), https://www.espn.com/mma/story/_/id/30712132/usada-essentially-eliminating-marijuana-use-ufc-violation.