The challenge of prosecuting IS terrorists: a return to Guantanamo?

One of the most difficult challenges for governments around the world is what to do with their citizens who left to join Islamic State (IS) or other terrorist groups in Syria and Iraq from 2013ish to 2017.  As we all know, IS is a shadow of its former self. It has lost swaths of territory.  The self-styled ‘Caliphate’ is no more.  Thousands, if not tens of thousands, of terrorists belonging to the group are dead, either through airstrikes or armed operations.  In this we have to be thankful.  After all, the only good terrorist is a dead one.

There are, alas, many who did not do us a collective favour by dying but were rather picked up by Iraqi, Syrian or even Kurdish authorities and are being tried in local courts.  Suffice to say that their court standards are not our court standards.  In some cases, especially in Iraq, IS members are found guilty after ten-minute trials and sentenced to death.  As much as I am not a fan of the death penalty in general, I am still having a hard time feeling sorry for members of a heinous terrorist group that raped, beheaded, burned, drowned and slaughtered its way through communities throughout the region.  While terrorism is often brutal, IS practiced what has to be the lowest form of animal behaviour and those caught partaking in, or supporting, these actions do deserve severe punishment.  Death if necessary, but not necessarily death.

Some nations, such as France, are not in a particular hurry to welcome their IS citizens home, preferring to allow the Iraqis (or the Syrians or the Kurds) to deal with them.  Does anyone really have a problem with this? I hope not.  Given the disproportionate suffering IS visited on Iraq, that country has every right to treat these monsters as it wishes.  Who are we to say otherwise?

One development that does have me worried, however, is the news that the US may be seeking to send its citizens who joined IS to a third country for trial or other ‘treatment’.  Now I know I got this story from a Nigerian news source so I need to be careful, but if true it certainly would be consistent with prior US policy when it comes to terrorism.  Anyone heard of Guantanamo?  That US naval base in Cuba – a real anachronism if I have ever heard of one – served in essence as a ‘third country’ for Al Qaeda terrorists and others captured in countries like Afghanistan and elsewhere.  We all know what happened to those men while in ‘custody’ and we in Canada are $10.5 million poorer thanks to a decision (a ridiculous one in my books) to compensate Omar Khadr for the fact that CSIS interviewed him while he was in Gitmo.  The Guantanamo experience tainted the US in many ways, undermining its reputation as a beacon of democracy and rule of law, and led directly to the killing of innocent hostages dressed in Guantanamo-style orange jumpsuits by terrorist groups.

We also know about so-called third country ‘black sites’ run in part by the CIA where suspected terrorists were tortured. Is this what the US is seeking to replicate?  Why on earth would an American government do this again?  Sorry, silly me, this is the Trump Administration we are talking about where no one has the foggiest where policy is going and major shifts in position are but a tweet away.

The US is repeating a critical error in what the Brits call an ‘own goal’.  There is no need to do this since there are better options available.  Preferably, the US can let the Iraqis try their (i.e. US) citizens and apply Iraqi justice, which may include the death penalty (which is the right of Iraqis, and ONLY Iraqis, to decide).  Alternatively, they can ask that their citizens be extradited and tried in the US, which, after all, much like Iraq still practices the death penalty.  There will be evidentiary challenges in these cases but they will not be impossible to prosecute.

I hope the Nigerian news story is Trumpian in nature (i.e. FAKE NEWS!). If not, the US is headed down the same stupid pathway in adopted post 9/11, a pathway that has gotten us no closer – in fact has moved us farther – down the road to actually making progress on terrorism.  Let’s hope that saner heads will prevail, if there are any saner heads left in the Trump White House.



By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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