A court on Wednesday barred the British government from providing US prosecutors with evidence against two Islamic State militants suspected in the beheadings of Western hostages, citing the prospect that the men could face the death penalty if tried and convicted in the US.
The ruling by the British Supreme Court blocks an earlier decision by the country’s authorities to cooperate with the US by sharing information about El Shafee Elsheikh and Alexanda Kotey.
The British men, captured two years ago by a Kurdish-led, US-backed militia, are accused of participation in a brutal Islamic State group known for beheadings and barbaric treatment of US aid workers, journalists and other hostages in Syria.
The decision is a setback for the US Department of Justice, where officials for years have been investigating the killings.
US officials have not announced any charges against the men, but have spoken publicly about their desire to see members of the cell, known as “The Beatles” for their British accents, face justice.
They were transferred to US custody in October last year as Turkey invaded Syria to attack Kurds who have been battling the Islamic State alongside US forces.
“We are disappointed with the UK Supreme Court’s decision and are considering the appropriate next steps,” Justice Department spokesman Marc Raimondi said.
“As our investigation of these individuals continues, we will work with our UK counterparts on a path forward, consistent with our shared commitment to ensuring that those who commit acts of terror are held accountable for their crimes,” he said.
It was not clear what those next steps would be, or whether the decision might prompt the department to remove the possibility of the death penalty from any eventual prosecution.
US Attorney General William Barr said in a private meeting last year with victims’ relatives that he wanted to see the militants brought to justice.
The US and British governments have an agreement to share documents, records and other evidence in criminal investigations.
In 2015, the department asked for evidence that Britain had gathered on the “Beatles,” saying it was doing its own investigation into Americans who were murdered in Syria.
Although the death penalty has been abolished in the UK, British authorities were willing to provide their US counterparts with evidence against Elsheikh and Kotey even without assurances that the men would not be executed if convicted.
British authorities said it would not be right to withhold evidence given the horrific nature of the allegations, but some British lawmakers called on the government to reserve its position.
In July 2018, after lawyers for Elsheikh demanded a review of the decision to allow the men to be put on trial in the US, the British Home Office temporarily suspended cooperation with the US.
Lord Brian Kerr, a judge on the British Supreme Court, said that there was no doubt the crimes the men are accused of are “dreadful” and “of the most awful nature.”
However, he said it was unlawful to turn over evidence to a foreign country that could be used in pursuit of a death penalty prosecution.
“It follows that no further assistance should be given for the purpose of any proceedings against Mr El Sheikh in the United States of America without the appropriate death penalty assurances,” he wrote.
The British leader of the “Beatles” cell, Mohammed Emwazi, who was also known as “Jihadi John,” was killed in a 2015 drone strike.
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