U.S. Moves to Take ‘High Value’ ISIS Detainees, Including Britons Who Abused Hostages – The New York Times

After Britain declined to bring Mr. Elsheikh and Mr. Kotey home for prosecution, instead stripping them of their citizenship, the United States government weighed various options for handling them itself before deciding to prosecute them in civilian court once it obtained all of the evidence it needed.

A person familiar with the exchange said that Attorney General William P. Barr has asked Mr. Trump to make keeping the two British men detained a priority so they could eventually face prosecution in the United States. The president agreed to do so, the person said.

The Trump administration had also toyed with sending the two British men to the American military prison at Guantánamo Bay, Cuba, for a period of indefinite wartime detention without trial. Senator Lindsey Graham, Republican of South Carolina, who is a close ally of Mr. Trump’s but has criticized his Syria policy, has advocated that step.

But the military opposes becoming more deeply involved in long-term detention operations, and there are steep legal obstacles to taking the men to Cuba.

Among those challenges, transfer restrictions Congress imposed to block President Barack Obama from carrying out his plan to close the Guantánamo prison would make it illegal to transfer the men, once at the base, to domestic American soil for an eventual trial before a civilian court, and the military commissions system at Guantánamo is widely seen as dysfunctional.

It is also not clear whether legal authority exists to hold Islamic State members — as opposed to members of Al Qaeda — in indefinite wartime detention. Once in Guantánamo, the detainees would have the right to file habeas corpus lawsuits challenging the legality of their detention, raising the risk of a ruling that the larger war effort against ISIS has been illegal.

Eric Schmitt and Katie Benner contributed reporting.

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