WASHINGTON -- As two Islamic State militants faced a judge in Virginia last month, Diane Foley listened from home through a muffled phone connection and strained to make out the voices of the men prosecutors say kidnapped her son before he was murdered.
“We'd met so many blocks over the years, I couldn't believe it was happening,” Foley said. “I was in awe of it, really, and almost didn’t trust it — a bit incredulous. Is this really happening?”
The prosecution is a counterterrorism success in the waning weeks of the Trump administration. But it almost didn't happen.
At another time, the case might not have even been handled in civilian courts. After the Sept. 11 attacks, the Republican-led Justice Department favored detaining foreign fighters at the U.S. base in Guantanamo Bay, Cuba, for military tribunals. But that approach changed. Now federal prosecutors are pursuing the highest-profile terrorism case since trials over the Boston Marathon bombing and Benghazi attack, aiming to secure convictions and punishments that can keep the men, in their 30s, imprisoned for life.
“There was never a time when I thought we didn't have any case," said John Demers, assistant attorney general for national security. But, “we didn't want to bring them here unless we had really good charges, a really strong case, and ultimately expected a conviction that was going to result in a very significant prison sentence."
The group of militants, called “the Beatles” by their captives because of their British accents, came to embody IS barbarism with the 2014 release of grisly propaganda videos depicting the beheadings of American hostages. The first showed James Foley, captured as a freelance journalist covering Syria's civil war, kneeling in the desert in an orange jumpsuit beside a masked man in black brandishing a knife to his throat.
The beheadings were part of a reign of terror that officials say also involved waterboarding, mock executions and electric shocks. Elsheikh once videotaped the shooting of a Syrian hostage as Kotey directed hostages to watch while holding signs pleading for their release, prosecutors say.
The pair also coordinated ransom demands, the indictment says. An email to the Foleys tauntingly told them the U.S. government treated them "like worthless insects."
An airstrike killed the group's most notorious member, who had killed Foley and was known by the moniker of “Jihadi John.” Another was prosecuted in Turkey.
That left Kotey and Elsheikh, who were captured in Syria in 2018 by American-backed forces. Weeks later, they appeared unapologetic while speaking to The Associated Press at a Kurdish security center, denouncing the U.S. and Britain as hypocrites who wouldn't give them a fair trial.
Inside the Justice Department, officials weighed whether the men should be tried in the U.K. or U.S. or even transferred to Guantanamo, which then-Attorney General Jeff Sessions had called a “very fine place" even though prosecutions there have floundered, lagging behind the speedier justice of American courts.
U.S. officials initially leaned toward a U.K. prosecution. British authorities had accumulated compelling evidence during their own investigation and U.S. policy encouraged other nations to repatriate and prosecute their citizens who'd joined IS.
Yet the U.K., which had stripped the men of their British citizenship, resisted doing the case in part over concerns about the ability to get convictions and significant prison sentences in British courts.
Once that position became clear, officials coalesced around bringing the men to America, said State Department counterterrorism coordinator Nathan Sales. But the British balked at sharing evidence with U.S. prosecutors without assurances they wouldn't impose the death penalty, which was abolished in the U.K. That was an impediment for American officials, who say they considered Britain's evidence vital in tracing the men's travel and path of radicalization.
They decided they wouldn't do the case without that evidence, Demers said.
The British later relented and agreed to share evidence without any assurances. But Elsheikh's mother sued over the evidence transfer, delaying the case well over a year. Last March, a British court effectively blocked the evidence-sharing over the death penalty issue, a hurdle U.S. officials assumed might require additional litigation to overcome.
Despite the ruling, prosecutors pressed forward. G. Zachary Terwilliger, the U.S. attorney for the Eastern District of Virginia, whose office is handling the case, was among those arguing internally that prosecuting the defendants was more important than leaving the death penalty on the table.
The families, too, began uniting around the idea of removing the death penalty from consideration.
That had long been Diane Foley's position. The most vocal of the group, she met regularly over the years with government officials and cultivated high-level Washington contacts like her hometown senator, Jeanne Shaheen of New Hampshire, with whom she co-authored a 2019 newspaper op-ed warning against “impunity for these monsters.”
Still, the budding consensus in recent months was notable because the families had not always shared the same perspective of the case.
The executions of Foley and two other hostages, Steven Sotloff and Peter Kassig, were documented in propaganda videos, the men's fates apparent to the world. But the circumstances of the death of a fourth, Kayla Mueller, who prosecutors say was sexually abused by late IS leader Abu Bakr al-Baghdadi, were less established and her parents initially believed keeping the death penalty on the table could be leverage to get answers.
Mueller's mother, Marsha, said in a text message that the couple had not wanted anyone to die but was eager for information about Kayla.
Ultimately, though, she concluded: “The other families who we care so deeply for wanted the men brought here and this seemed to be the only way they would come."
Meanwhile, current and former FBI officials who were helping the families, including the head of the bureau's hostage recovery cell, encouraged them to speak out in unison to prod the Trump administration toward prosecution. Ali Soufan, a former FBI counterterrorism agent who'd partnered with Mueller's parents to investigate Kayla's death, made the case that waiving the death penalty was essential for cooperating with the U.K. and even customary in international terrorism cases like this one.
Other options were hardly optimal. A trial in Iraq, where the men had been held in U.S. military custody over the past year, could produce a human rights outcry creating empathy for the men. The proceedings could also result in their release, or potentially execution if they were convicted.
Concerned a U.S. prosecution might not happen at all, or that the men might be left in Iraq, the families accelerated their public advocacy. In July, all four signed onto an opinion piece in The Washington Post imploring the U.S. to prosecute the pair as a message that anyone who harms American citizens “will not escape." That month, NBC News aired an interview with the men in which they admitted involvement in Mueller's captivity.
When Foley met with Barr in 2019, he said he shared her desire for accountability. But she said he and other Justice Department officials were firm in their convictions that the death penalty, a punishment Barr had brought back after a 16-year federal government hiatus, was merited.
Last summer, though, as the families conveyed their wishes to remove death from consideration and as the case dragged on without obvious resolution, Barr was ready to break the logjam.
“I don’t know if it was the deciding factor or not, but I think it did help when we finally spoke up again and said, ‘Please. Please bring them to the U.S,'" Foley said. "If you need that evidence and you need to waive the death penalty, please do it.’"
A senior Justice Department official prepared Foley for the news about to break, writing in an Aug. 14 email that once the U.S. message is delivered and becomes public, "we are sure it will generate a lot of attention and discussion — and that many will be interested to hear from all of you.”
That happened days later with the release of Barr's letter to U.K. Home Secretary Priti Patel. In it, he committed to forgo the death penalty but also issued an ultimatum: If the Justice Department received Britain's evidence by Oct. 15, it would proceed with prosecution. If not, it would transfer the men to Iraqi custody for prosecution.
“That was a real option. It wasn’t posturing," Demers said. “I didn't know if the U.K. could do everything it needed to do in time to get us that evidence.”
The evidence came, resulting in a 24-page indictment with counts punishable by life imprisonment.
Justice Department prosecutors announced their case on Oct. 7 as the men were flown to Dulles International Airport and taken to jail, where because of the pandemic they faced a judge via video link. They have pleaded not guilty.
As Foley listened to court proceedings she once doubted would ever come, she couldn't help but wonder if, under different circumstances, the men might have been friends with James, who years earlier had taught jail inmates.
But she also is gratified.
“To my last dying breath, I will do my best to bring some accountability and justice for the horror of the murders of these four Americans."