Prosecuting al Baghdadi

Abstract

Policy Question: How should the United States Government (“USG”) prosecute the ISIL leader, Abu Bakr al-Baghdadi (“ABAB”), if it captures him? Overall Recommendations:

The USG should consider the empirically proven benefits of capturing terrorist leaders rather killing than them. Both the scholarship discussed in Part III and the independent statistical analysis discussed in Appendix A shows the empiricism behind the benefits. The empirical evidence suggests decapitation hastens the demise of terror groups, but that “capture” decapitation strategies do so more than “kill” strategies. The intuitive rationale is that capture yields intelligence from interrogation and prosecution renders a strategic communications impact of the rule of law.

The USG should only opt for a capture / prosecute strategy once it has sufficient admissible evidence to secure a conviction. This calculation must be made for whichever court policymakers intend to try him. Different courts have different rules of evidence and pose different practical and procedural hurdles to bringing evidence before a judge and jury. If the USG can link ABAB to ISIL’s crimes only through classified documents and source-protected witnesses, then prosecutors may not have sufficient evidence to convict without that information. This dilemma is more problematic the more “international” the prosecution becomes. US prosecution confronts its own evidentiary problems, such as the rule against hearsay.

The USG should attempt to capture as many ISIL members in the top echelon as possible. Beyond the obvious value of dealing more damage to ISIL, capturing a larger group of ISIL leaders than just ABAB serves two purposes. First, prosecuting a leader of a criminal organization is uniquely difficult. Prosecutors must link the actions of the leader to the crimes of the organization; testimony to that linkage becomes critical. While accomplices have loyalty to a leader, they still reveal information under interrogation and are often willing to testify to save themselves from a harsher sentence. Having witnesses with first-hand knowledge of ABAB’s directives is particularly important for US prosecution, because the rule against hearsay bars second-hand testimony. Second, more detainees increases the achievability of the non-US prosecution options. Creating an international tribunal or hybrid court, or investing in an International Criminal Court inquiry, is more feasible if prosecutors will have a docket replete with defendants, rather than a sole offender.