ISIS Today: Prisoners, Escapees, Returnees, and Resurgent Fighters

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's International & National Security Law Practice Group, was recorded on Friday, October 25, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Micah Wallen:  Welcome to The Federalist Society’s teleforum conference call. This afternoon’s top is entitled “ISIS Today: Prisoners, Escapees, Returnees, and Resurgent Fighters.” My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today, we are fortunate to have with us our moderator, Christopher Harnisch, who’s the Deputy Coordinator for Counterterrorism at the United States Department of State. Christopher Harnisch will be introducing our panel today. After our panel gives their opening remarks, we will then open up the lines for audience Q&A. Thank you all for sharing with us today. Christopher, the floor is yours.

 

Christopher K. Harnisch:  Thank you and good afternoon from the U.S. State Department in Washington and thank you all for spending your lunch hour with us today to discuss this incredibly important and timely topic of ISIS prisoners, escapees, and resurgent fighters. We have three excellent, highly qualified panelists with us today who I’ll be introducing momentarily. Before I get too far, let me thank The Federalist Society for convening this call. I’m a longtime admirer of The Federalist Society and the great work that it does.

 

The U.S. position on foreign terrorist fighters, which I’ll refer to as FTFs during this call, is clear and straightforward. Countries should repatriate and, when appropriate, prosecute, rehabilitate, and reintegrate FTFs. The President called on countries yet again on Wednesday to take these steps. At all levels of the U.S. government, we’ve been calling on countries to repatriate and prosecute for over a year and a half now. And we have warned countries that the window for U.S. to support these operations would not be open forever.

 

More than ten countries, including Kazakhstan, Morocco, and Kosovo, have repatriated FTFs from Syria. We are grateful for those countries that have stepped up to do the right thing on this issue. But the rest of the world needs to step up and also do what is right. Unfortunately, only one Western European country to date has repatriated, and that is Italy.

 

Let me note that the United States leads by example on this issue. To date, we have repatriated eight adult American citizens and 14 U.S. minors from Syria and Iraq. The adults include five males and three females. Two of the females are young women and were minors when they were allegedly taken to Syria. Of the adults, DOJ has already charged six with federal criminal charges, and one individual has already begun serving a 20-year prison sentence.

 

U.S. prosecutors can deploy a variety of charges against [inaudible 02:59] returnees, including conspiracy, attempt, or provision of material support to a foreign terrorist organization. Our counterterrorism statutes have also enabled us to interdict individuals prior to departure for Iraq and Syria, a number that the DOJ has said is more than 100. With regard to repatriation of [inaudible 03:18] ISIS associated family members, we consider each individual on a case by case basis. The issue of associated women and children, including children born in Syria during the conflict, is particularly complicated, and effective management of such cases depends on the available information and individual circumstances as addressed against specific criteria, including parents’ nationalities and citizenship laws in countries of origin.

 

The United States does not punitively strip nationals of U.S. citizenship and does not condone that practice. By stripping citizenship, we’re creating the citizens for the next caliphate. For proof of what happens when a country strips a national of his or her citizenship, look no further than Osama bin Laden. We do not consider it the responsibility of the United States to find solutions for the thousands of non-U.S. citizen FTFs in Kurdish custody and family members residing in the camps in northeast Syria. We have used U.S. resources, though, and U.S. assets to assist in repatriations. We do this because repatriation and onward disposition, whether prosecution, rehabilitation, or reintegration as appropriate of FTFs remains the optimal way of keeping these individuals, including in many cases dangerous and battle-hardened fighters, off the battlefield. Similarly, for family members, repatriation remains the best solution.

 

For reasons of inefficacy and inefficiency, we consider the establishment of an international tribunal an infeasible option. We further note that national courts are adequate to address FTF related issues in many cases. With that, I’ll turn the floor over to our real experts who you dialed in to hear today. The first speaker will be Seamus Hughes, the Deputy Director of the Program on Extremism at George Washington University. Seamus and his team have done incredible work on homegrown terrorists, including those Americans that have traveled, or attempted to travel, to Syria and Iraq to join ISIS. Seamus, the floor is yours.

 

Seamus Hughes:  Thanks so much for having me and also thank you to The Federalist Society for convening this. So I thought I’d talk a little bit about where we’re at in terms of the U.S. and the American threat but also the foreign fighters and the returnees. And I thought the way you set it up was perfect, so I’ll try not to repeat too much.

 

But we’ve got about 1,000 active investigations in all 50 states when it comes to international terrorism. The FBI has talked about some 300 people who have attempted to or have traveled to Syria and Iraq. So as a researcher trying to figure out whether that’s 295 attempted and five actually got there was frustrating. So we didn’t have that level of detail. So we did what we usually do, which is we rolled up our sleeves and were able to identify 81 U.S. persons who traveled from the U.S. to Syria and Iraq to join jihadist groups.

 

And there’s some takeaways from there. The vast majority are U.S. citizens. About 30 percent are believed to be killed over there. Another 40 percent are at large. They come from 28 different states, but the highest propensity coming from Minnesota, Virginia, and Ohio. And that speaks, actually, to the importance of in-person networks. If you look at the folks who came from Minnesota, they were the brothers, sisters, and roommates of the individuals who joined al-Shabaab a few years ago. And it’s the reason why you had a relatively large number there.

 

Most of our folks are affiliated with ISIS when they get over there. It was the largest game in town. It made sense. You did see an uptick by the announcement of the caliphate, and 2015, ’16 timeframe was a banner year for travel. And it hit onto a third rail in jihadism in the U.S., and it got people riled up on that.

 

When you look at the folks who did travel, you can kind of bucket them into three different areas. The first would be pioneers. So these are individuals usually that had some sort of ideological knowledge, theological knowledge too, and some military background. They went early. The go there. They plant the flag, and they call back their friends and say come join.

 

Most of the folks in the 81 people that we identified by true legal name fall into the second category, which are network travelers. These are individuals who travel with a friend, a husband, a wife, things like that. You’re more like to join a terrorist organization if your best friend joins a terrorist organization, too. We can dive into those stories if we want.

 

And the last category, and probably the smallest of the dataset, would be loners. These are individuals who had -- weren’t on FBI’s radar prior, didn’t pop up on -- didn’t have an online footprint but lit up their network when they got to Turkey and reached out to people from there. Those are the people you need to be most concerned about because they have a little bit of operational security.

 

Now, of the returnees, Chris quoted some numbers on there. I’ll do the numbers for both the Obama and the Trump administration. We’ve identified at least 19 American citizens who have returned back to the U.S. Of that, nine were repatriated, and ten returned on their own volition. The vast majority came back disillusioned and disenchanted with their time in Syria and Iraq. They usually flipped and became law enforcement sources as soon as they got back. 15 of the 19 have been prosecuted or are in the process of being prosecuted. Most of them are charged with material support, about 12 of them, some with false statements, conspiracy to kill, use of weapons of mass destruction, obstruction of justice, and things like that.

 

Like you noted, 14 kids have come back. That’s something we should probably talk about because the way we deal with children that come back from the caliphate seems a bit scattershot. Some kids go back with their families, grandparents. Some end up in Indiana. They’re in child protective services. And have we provided some level of training for those individuals? Probably not.

 

The ones who got repatriated and came back, to be honest, they were the relatively easy ones. They admitted guilt. There’s a trail of information. There’s battlefield evidence that you can do a chain of custody. It’s going to be the next wave of folks that’s going to be the most difficult. We’re fortunate in the U.S. that we have a relatively broad statue with the material support to terrorism statute, and it allows us to prosecute much easier than most western countries. So time will tell and see if we’ve got the harder cases that are coming up on this.

 

And the one last thing I’d note is, not to be glib, but if you’re going to join a terrorist organization in the U.S., you really should join a terrorist organization as opposed to trying to. Individuals that go to Syria and Iraq, on average, get about 138 months of sentencing. Whereas, if you get arrested at Reagan Airport on the way to Syria, you’ve got about 180 months. And that’s counterintuitive, but it speaks to a larger thing which is you’ve got information to trade.

 

So individuals that came back from Syria and Iraq flipped on their colleagues, lit up, showed a network of what happened in Syria and Iraq and went from there. That number may change in the coming months as the U.S. government needs less and less intelligence to understand ISIS. I think that ship has sailed. So we may see larger sentences on the back end. And with that, I’ll stop.

 

Christopher K. Harnisch:  Great. Thanks very much, Seamus. Our next speaker is Robin Simcox, the Margaret Thatcher Fellow at the Heritage Foundation’s Margaret Thatcher Center for Freedom. Anybody who has a title in his or her name -- Margaret Thatcher at least twice in the title -- has an extraordinary high bar to live up to. And Robin’s done just that with the research he’s conducted at heritage. I’ll note that he’s an expert on al-Qaeda in the United States, having produced a tome that profiles every conviction in the United States with an al-Qaeda link. Robin, the floor is yours.

 

Robin Simcox:  Thank you and thank you to The Federalist Society for putting this on and for inviting me. I’m going to talk about the European situation. Around 6,000 European foreign fighters traveled to Syria. Many ended up joining terrorist groups, mostly ISIS. Some have already returned to Europe. Some were killed on the battlefield, and it’s estimated that around 2,000 of those being detained in the camps being run by the SDF in northern Syria are Europeans or have a close link to Europe. Most of Western Europe has refused to accept the return of adult citizens, as Chris alluded to earlier. This has been to the great frustration of the U.S. Only some, France, Belgium, and the Netherlands, for example, have even begun accepting the return of their orphans.

 

So why have the Europeans been so reluctant to accept the return of their citizens? Well, for three main reasons. Number one is the inadequacy of European legislation, making prosecutions for a specific crime extremely difficult. Just because ISIS was an organization known to be involved in genocide and rape doesn’t make it easy to prosecute specific individuals in a European court for specific crimes. That might sound hard to believe. After all, many of those traveling to Syria were in all likelihood going there to live under a state controlled by terrorists. But strongly suspecting someone of wrongdoing doesn’t necessarily translate to convictions in European courts where the burden of proof is understandably high.

 

So while something like UN Security Council Resolution 2178, which requires countries to have laws that permit the prosecution of their nationals and others who depart their territories traveling or attempting to travel for terrorism purposes, such a law wasn’t applied retroactively in Europe. So if it was legal for someone to travel to Syria to fight with a certain group in 2013, even if that law was then changed in 2014 to make it illegal, that same person couldn’t be prosecuted upon return today. Interpretation of the law is also key here.

 

So if we take an example from Sweden, which prosecuted one of its citizens that went to Syria to join the al-Nusra front, a Swedish court of appeal accepted the facts of the case, but it’s interpretation of domestic law and UNSCR 2178 was that the purpose of travel should be to commit specific terrorist acts, not “merely” -- and I put merely in quotation marks there -- the intent to join a terrorist group, like al-Nusra. Therefore, that individual ended up getting acquitted. I think that such a verdict would probably be unimaginable in a U.S. court, as Seamus has mentioned, which have been able to use its broad material support law to prosecute cases that many European courts could not.

 

Number two is I would mention the logistical hurdles. You’ve got to think of the technical difficulties of prosecuting those detained in Syrian camps. Most of these suspects were picked up on the battlefield by militias. They weren’t being arrested by the London Met or the FBI, and no one serious in Europe advocates that the police go swooping in and out a war zone in Syria and transport them back.

 

So with that being the case, the question that the Europeans are asking is so on what legal basis can a Kurdish militia, not a fellow government with which there’s either a legal treaty or a formal agreement, extradite a detainee to another country. Even if they could, what is the nature of the evidence against the detainees? How is it collected? Is there an unbroken chain of custody? Are there reliable witnesses? Would those witnesses be able to testify in a civilian court in Europe? All these issues present really significant logistical challenges.

 

Which isn’t to say the prosecutions are always impossible because sometimes the jihadis have made it easy for the state to prosecute. So for example, there was a case in the Netherlands were a foreign fighter was photographed next to a crucified body. He boasted about being a sniper and disseminated images of beheaded Kurdish fighters. He was imprisoned for seven and a half years. There was a female recruit currently facing trial in Germany who was caught talking in a bugged car about her role in the Hisbah, the ISIS morality police. And then you had in the UK a British man jailed for membership of al-Qaeda after the police used voice recognition technology to identify him from a speech he’d give in Syria recorded in 2013. But crucially, all these people had made their way back to Europe voluntarily. They were not extradited, and they were not picked up by western forces and transported back to Europe.

 

Finally, in number three, there is the issue of resources. Although many of the individuals we’re talking about can’t be prosecuted, that doesn’t make them any less dangerous. They would still need monitoring upon return to Europe. So if we take the example of the UK, as of March 2017, there were 23,000 ISIS terror threats on the UK intelligence radar. In France, the head of their domestic security agency has said there are around 18,000 terror suspects in the country. That means the scale of the threat is far greater than the resources the state has to combat it. Intelligence agencies already have to ruthlessly prioritize which suspects to monitor. Throwing a load of returnees from the caliphate onto the pile only makes that task all the more difficult, hence where you have this impasse.

 

So will Europeans ever accept their foreign fighters back? I think, by and large, the current policy is that if they can make it out of Syria of their own volition, make it to Turkey for example and get consulate assistance, governments sometimes will not stop their return. Even this isn’t always the case, though. So the UK’s passed a law allowing it to apply temporary exclusion orders on British citizens overseas involved in terrorist causes. These individuals can be banned from returning to the UK for up to two years and their passports canceled unless they agree to a series of restrictions, which includes taking part in deradicalization initiatives. The UK has also removed the citizenship of dual nationals and those who have recourse to another nationality, so British citizens of Bangladeshi heritage, for example, in order to prevent them ever returning to the UK.

 

So the U.S. desire for Europeans to take their foreign fighters back is completely understandable. And it’s Europe, not the U.S., that has to bear the primary responsibility with coming up with a solution about what to do with their jihadis in this situation. However, I would just say that European countries are also in a difficult situation. Accepting back often hardened terrorist without much prospect of successful prosecution is a pretty unappealing offer for any government. If one of those terrorists was to then go on to commit an attack in their own country, you can imagine what the domestic consequences of that would be, both politically and, of course, in terms of human suffering. So I will stop there and look forward to any questions you may have.

 

Christopher K. Harnisch:  Great. Thank you very much, Robin. Our final speaker is Dr. Seth Jones, the Harold Brown Chair and Director of the Transnational Threats Project at CSIS. Seth brings a wealth of knowledge and experience to the conversation, including experience working downrange in Afghanistan with U.S. Special Operation forces. Seth, over to you.

 

Dr. Seth G. Jones:  Thanks, Chris, for the introduction and serving as the moderator. And thanks to The Federalist Society. Let me just move from where we started, which is the U.S. and then to Europe, and I’m going to end right now in looking primarily at Syria. And if people on the line have generally a negative view so far of the situation we’re in, I’m about to make it a little bit worse.

 

The current situation I think, in where it’s evolving, is notably concerning. What I want to paint the picture first is the jihadist activity in Syria and Iraq and then get to the issue of options for dealing with the foreign fighter problem and the potential issue of release, as well as where we go from here. So to paint the picture on the current situation, having come back from the region recently, it’s certainly helpful that the Islamic State lost control of most of the territory that it once held in Syria and Iraq. But it’s worth noting that it is attempting, and has been attempting, to rebuild its networks east and west of the Euphrates River as part of its desert or sahara strategy, also north as well.

 

Islamic State fighters have taken refuge in areas like the Badia Desert and the Jazira region in Syria. They’ve stockpiled weapons and materials. They’ve kept a low profile, including wearing Bedouin style clothes. I just was looking at pictures the other day of Islamic state fighters in Syria wearing Bedouin style clothes to make it more difficult for satellite imagery to locate them. In particular, we see reasonable efforts to resurge in parts of Deir ez-Zor province, Raqqa and Homs province, particularly around areas like Palmira.

 

Anybody that’s looked at the four-part series that was published earlier this year by the Islamic State I think has a sense of where they’re trying to go. This four part series was titled “The Temporary Fall of Cities of the Working Method for the Mujahideen.” And the guidance to Islamic state fighters, whether they’re in these detention facilities or elsewhere, is to avoid pitched battles and face-to-face clashes and to conduct hit-and-run attacks, seize weapons from victims, and then to wait to fight in a major way another day.

 

The numbers are concerning more broadly. According to our estimates, there are still between 15 and 30,000 Islamic State fighters in Syria and Iraq, including up to 3,000 foreigners. Those are individuals from outside Iraq and Syria. That Iraq-Syrian border is extremely serious, as we’ve already noted. The Islamic State is recruiting and attempting to recruit individuals at locations including the IDP camps like al-Hawl in northeastern Syria, which has approximately, at least by my count in July when I was there, 70,000 IDPs, as well as other camps like Rukban, which is in southern Syria near the Jordanian border, which has somewhere between 20 to 30,000 internally displaced persons. In addition, as we’ve already heard, we’ve got significant number of individuals that have been detained, including the ones at al-Hawl, which means that we’ve got concerns not just with those detained but also with nearly 50,000 of the IDPs at al-Hawl, just to use that as an example, under the age of 18. This has concerns about youth radicalization.

 

In addition to the Islamic State, it’s worth noting there’s still reasonable numbers of al-Qaeda operatives and operatives that have links with al-Qaeda networks in Syria. In the area of Idlib, Hayat Tahrir al-Sham has between 12 to 15,000 fighters, as well as an organization with even closer ties to al-Qaeda, Tanzim Huras al-Din, which has between 1,500 and 2,000 fighters. If we take a step back, in addition to those detained, we’re looking at somewhere in the neighborhood of 40,000 to 50,000 jihadist fighters in the Iraqi-Syria area, which I should note is a broader -- it’s a porous area. It should be considered part of a broader battlefield. That I think is the big problem we face moving forward. In addition to the detainees right now, we have a major jihadist issue.

 

I think, going forward, as I have talked -- as several others, including Robin, just noted, when I’ve talked to senior European officials, they’ve noted a number of concerns in addition to ones that Robin noted, hurdles -- prosecution hurdles, the requirements for hard evidence that they were involved in terrorism. There have also been concerns that British and French officials, and even recently German officials, highlight to me concerns about, even if they have evidence, concerns about radicalization in prison, particularly if they’re there for shorter periods of time. And even if they don’t have sufficient evidence to prosecute for long periods of time, they’re also concerned that broader radicalization in society. For all of these reasons, there’s been a lot of reticence to bringing them back into -- it’s not just Europe but also other partner countries like Australia.

 

Now, there’s been some movement in a few cases. If we look at the two UK prisoners held at the Kobani facility at one point, El Shafee Elsheikh and Alexanda Kotey who were allegedly part of “the Beatles” for their British accents -- they were allegedly Islamic State members involved in holding and torturing western hostages. The British government stripped them of their citizenship, but they refused to take custody of them or to have the extradited to the U.S. In addition, the UK requested that the U.S. government not seek the death penalty against them and insisted the U.S. prosecute the two in some kind of a civilian court -- this was earlier on -- rather than take them to, say, GTMO. It looks like, as of this month, they have been moved to Italy under U.S. custody -- sorry, to Iraq under U.S. custody. So I would say, as of a couple months ago, this is some progress in dealing with a few.

 

But the bigger problem we have, as both Seamus and Robin have laid out, are what to do next. So very briefly, one option, and the first several of these are really not tenable options -- one of them is the status quo to provide some additional help to Kurdish forces to keep, for the moment, these individuals in holding facilities in places like Syria. The U.S. has been very helpful in providing funding for pre-cast concrete walls, security cameras, and other security measures at some of these detention facilities. They’ve also provided training at some of these sites, including efforts to ensure that no human rights abuses are perpetrated at these facilities. But the status quo is clearly not a long-term option. It’s become more difficult with the U.S. withdrawing some forces from Syria.

 

A second option is to try to hand them to another government. The Syrian government is not really an ideal option. It’s been a government that’s used chemical weapons against its own population. Turks are an option. The challenge there is that they, in the long run, are more concerned -- probably more concerned with the PKK and Kurdish groups than they are with some of the same groups that the U.S. has been concerned about. Plus, negotiating some kind of handoff between Kurds and Turks would be a monumental diplomatic effort.

 

Another is Iraq. There have been some efforts to encourage Iraq to take more. I gave the example of “the Beatles.” Encouraging the movement of some to Iraq over the long term is an option. Some have brought up, including members of Congress, sending some to the facility at Guantanamo Bay. I think my big concern, and the U.S. President has said comments along these lines, on why should we have to hold all of the responsibility for dealing with these individuals, particularly non-Americans -- that we should be pushing for more burden sharing by allies.

 

A fourth option, which we have laid out—and I think Chris laid it out well—is that the U.S. needs to continue to push for these countries that those individuals are citizens to repatriate, and when appropriate, prosecute, rehabilitate, and reintegrate those FTFs. And then finally, which is kind of where I will end up on, is kind of an all-of-the-above option. Which is I suspect the way forward for the foreseeable future is some will likely stay under some Kurdish detention. Some may be handed off to other governments, like the Iraqis. Some may end up being repatriated.

 

So the answer in part moving forward is to push on all diplomatic fronts and see whether then -- and push those numbers down by getting people into locations where they can be prosecuted or dealt with from judicial proceedings. I think, in sum, what I’ll say as we hand this off to Q&A discussion is that all of us probably have better questions than we have clear answers. And really, this is going to be a major diplomatic push to encourage other countries to take what should be their responsibility. So with that, Chris, I’ll turn it back to you.

 

Christopher K. Harnisch:  Great.  Thank you very much, Seth. I think you really did a great job laying out and casting light on the challenges associated with these ISIS detainees in Syria. And just one note regarding the options that you put forward, one complicating factor that I’d really like all the listeners to just make sure that they’re aware of is that the U.S. does not have custody of any of these FTFs in Syria. So that certainly complicates executing any of the options that you just described because we don’t have custody of these bad guys. So with that said, I think what would probably be most valuable to everybody who’s dialed in today is if we open up the floor.

                                                                                                   

Micah Wallen:  We have one question that jumped into the queue, so without further ado, Chris, if it’s alright with you, we’ll move to that first question.

 

Christopher K. Harnisch:  Absolutely.

 

Micah Wallen:  All right.

 

Karen Lugo: This is Karen Lugo. I want to thank you first for a very informative presentation all of you. I was noticing online at Homeland Security today there’s a recent article done by investigators, researchers who were on the ground, went to the camps in Syria. So they’re findings are fascinating on the level of the kinds of people they found as representative of groups in these camps. And there are, of course, the people that are disillusioned and just want to get home. And there are all the “We were only a car driver or a cook.”

 

And then, there are the very hardened and, in the case of the females, the women, vicious, cruel, totalitarian in a sense that they are running the camps in a very strict Islamist fashion. But considering the level of recruitment, especially with young people, that seems to be going on in the camps—and you’d mentioned this—it is so important that before there is some kind of loss of control of a negotiation -- certainly, if we don’t have custody in a sense of having any jurisdiction over the camps, to read this account, one understands that the guards are very stressed and some of them physically injured. So if the guards have really been cut in half in number, how important is it that either the repatriation, which may not happen quickly enough, but may be a matter of -- maybe it’s a sidelining or a separation in a negotiation of who has custody of the camps?

 

One could foresee with Erdogan, the way he has used the migrant situation and threatened Europe in that sense with release of floods of migrants into their countries -- if this became leverage, this situation is so much more explosive. So what might be done as far as understanding that these Syrian camps are an urgent matter and part of this entire, quote, “peace talk framework?”

 

Christopher K. Harnisch:  Thank you very much. Seth, given your time in Syria recently and the options that you laid out in your presentation, do you want to take the first shot at that question?

 

Dr. Seth G. Jones:  It’s a very good question. It’s also one that I think almost every country operating in the region is going to be hesitant to attempt to take control of any of these facilities. As Chris noted, the U.S. does not have custody right now. I think the problem, just to step back first -- I think the problem right now is, if we look at what happened to the foreign fighters in the late 1980s and early 1990s that left both Afghanistan and Pakistan and went to the Balkans, went to parts of Africa, including Yemen and Sudan, including bin Laden, and ended up coming back to places including Afghanistan, is that if we are not collectively careful about keeping a very close eye on the radicalization that is going on and the movement of these individuals, whether it’s staying in Syria and Iraq or moving from there into current or future battlefields in Africa -- other areas of the Middle East, South Asia, Southeast Asia, Central Asia -- we will have a potential spreading of radicalization in some of these areas.

 

The irony, or course, is just as the administration has been successful at undermining the territorial control of the Islamic State and weakening al-Qaeda, the world would face concerns about resurgence. So I think the U.S. certainly has the ability to lead in this effort. But what it’s going to have to come down to is a range of countries, Europeans, Iraqis, Turks, that are, A) going to have to assess the problem as serious and, B) are going to have to collectively find a solution to taking some kind of -- ownership isn’t the right word -- to take some effort to keep an eye on making sure most of the serious individuals being detained right now continue to be detained.

 

And then, if it takes days or months or weeks to figure out their future and what judicial system they’re going to have to get worked through, then I think that’s what I would strongly encourage right now. The solution is not an easy one. But I think there are a number of countries with a common interest in preventing what happened in the 1980s and early 1990s in letting these people go. Because I think that would be the worst of all worlds.

 

Christopher K. Harnisch:  Thank you. Seamus or Robin, anything you want to add to that?

 

Robin Simcox:  I would not anything to Seth’s answer.

 

Seamus Hughes:  No, I agree with Seth.

 

Christopher K. Harnisch:  Great. Thanks. Do we have another question at this point?

 

Micah Wallen:  Without further ado, we’ll move to that next caller.

 

Caller 2:  Hi. So since the fall of Baghuz in March, what is the assessment regarding ISIS attempt to maintain and/or expand networks among the constellation of Arab tribes operating within the middle Euphrates River valley?

 

Christopher K. Harnisch:  That’s a great question. Perhaps, Seamus, do you want to take the first stab at that one?

 

Seamus Hughes:  No, that’s a little bit outside of my area. I may defer to Seth or Robin.

 

Robin Simcox:  Yeah.  Seth seems to be especially well-placed to answer this at the moment. Sorry, Seth.

 

Dr. Seth G. Jones:  That’s okay. There have been notable efforts from the Islamic State. I would break this into areas of the north where they’ve attempted to expand. If we’re looking at the middle Euphrates River valley, which is where you noted, and we look to areas east of that, you’re looking primarily at places like the zero region around the Iraqi-Syrian border, which is where there have been concerns about resurgence.

 

And again, resurgence at this point is low profile. It looks like, for the moment, that Islamic State fighters have not been involved in major indiscriminate attacks killing civilians the way they did in parts of Syria and Iraq during their heyday. They’ve conducted much more precise targeting of Syrian democratic forces and, on occasion, some Syrian forces and again, as I mentioned earlier, wearing local clothes, including Bedouin clothes, stockpiling weapons and material.

 

One challenge that they do face is that they did burn some bridges when they controlled areas in the Syrian and Iraqi side. They were pretty indiscriminate in their conduct of governance. So most of the villages where we’ve seen them attempt to provide some -- where they’ve had some freedom of movement, there have been some concern about their activity. They were successful in resurging in the 2014 period in Iraq and Syria, partly because people had become tired of the Iraqi government. So they didn’t have to just coerce populations. There was some cooption. I think if they really are serious and able to resurge on the Syrian and Iraqi side of the border, I think they’re going to have to get over some reticence or use, again, large scale violence against local populations.

 

The other area which I’d encourage you to take a look at are areas in the Badia Desert where they have done the same thing: so Jazira area, the Badia Desert and then at some of the camps that we’ve talked about where they’ve attempted to recruit at Ripon, which is near the Jordanian border and actually not far from the U.S. base at al-Kampf, as well as in al-Hawl.

 

Micah Wallen:  We do have another question lined up, and, caller, please proceed with your question.

 

Caller 3:  Good afternoon. Thank you for all the information today. During the previous presentations, it seems as if the European partners are a bit reluctant to take in some of these ISIS fighters where they’re dealing with revoking their citizenship, but then leaving them where they are or in the hands of the Syrians or the Kurds. So they’re not being taken into the country of former citizenship that they had. Can you speak a little bit to what the arguments are for those decisions, if there are any ongoing discussions among the European and the United States to resolve this issue?

 

Christopher K. Harnisch:  I’ll just mention very quickly that the United States has made clear to all of our European partners that we are entirely opposed to the idea of stripping citizenship, as I mentioned earlier. You need to look no further than Osama bin Laden to see what happens when you strip somebody of their citizenship, which is really part of their identity as well. It’s these people that go off, and they’ll find safe haven in another fragile state somewhere. Or they’ll remain in Syria, or they’ll show up undetected back in their home countries and be living martyrs there. But I think, Robin, you probably have some great insight into this question as well.

 

Robin Simcox:  Sure. I think the reason it’s happened is some of the ones I outlined in terms of it’s going to be difficult to prosecute them, there’s logistical hurdles, and there’s the issue of resources in terms of them coming back to Europe. I think now that the European government’s made this decision that they weren’t going to accept their foreign fighters back initially, it’s now just sort of put in the “too difficult to solve” pile. I don’t think anyone really has any great ideas in Europe about how to begin to fix this issue. Occasionally, you get this idea of an international tribunal kicked around. The Swedish are very key on this. I just don’t see that as a starter.

 

But in terms of citizenship stripping, look, it was very simple. The Europeans decided, and the UK was at the forefront of this, that they were going to do whatever they could to keep the threat as far away from their borders as possible. And they viewed that it was better for their citizens to be in Syria detained by whoever it was detaining them than them coming back and being back on the streets. I would suggest that it wasn’t a great disappointment to many European governments when they discovered their citizens had been killed in the fighting, those alongside ISIS, because that meant they didn’t have to deal with any logistical problems at all. I still think that I understand the idea about why citizenship stripping is not a great idea.

 

All I would say is I think what European governments have to show is that there are consequences to actions. And this isn’t the first time that Europeans traveled to join a foreign conflict. They’ve been doing so for decades and decades, stretching back to Afghanistan and Bosnia, going through Kashmir, Chechnya, Yemen, Iraq, and Somalia and various foreign conflicts. And up until Syria, not a single person in Europe was ever prosecuted for going to join those foreign conflicts. So Europe had an extraordinarily hands-off, I think, excessively tolerant, approach to this prior to Syria. And maybe there’s some overcorrection occurring at the moment.

 

But I do think the principle of showing that there are consequences to joining foreign terrorist groups and you can’t just come back to the UK or France or Germany or wherever it may be, and your life be exactly the same as it was before, is an important one. I understand the frustration of some of Europe’s partners and friends because it means that they aren’t seen to be taking responsibility for their citizens. I would just point out, though, that Europe has got this varying shades of wrong for many, many years before Syria. And I’m glad that we’re at least being seen to treat it as a serious security issue now rather than the excessively hands-off approach we had in the past.

 

Christopher K. Harnisch:  Thank you, Robin. And one thing I would note kind of as a follow-up to what you just said is that the United States would certainly like to see European countries strengthen their sentencing of convicted terrorists. That’s been kind of one of the weak points, I think, of European countries in being able to combat the travel of FTFs to these combat zones. And we’re starting to see a few European countries actually strengthen their sentencing, including the United Kingdom.

 

So one question I have for Robin, just continuing the conversation on the Europeans for a moment here, in the U.S., there is relative bipartisan agreement, I would say, on the issue of repatriation of prosecution. There’s really not a whole lot of whitespace between the left and the right on how to handle the issue of these foreign terrorist fighters, while Europeans, on the other hand, are really united across the political spectrum in opposition to repatriation and prosecution, with a few exceptions. And they seem pretty content on keeping their citizens, European citizens, in effectively what is a Guantanamo Bay in the desert. That’s effectively what SDF detention is. I think it’s fair to say that you have these enemy combatants that are being held without charge pretty analogous to a GTMO situation. And for many years, up until very recently, it was the Europeans that would lecture us and berate us for Guantanamo Bay.

 

So I guess my question for you, Robin, is really as an expert on European politics and culture -- is what accounts for this kind of shift in position over the past few years in the Europeans being okay with allowing their citizens to be held indefinitely in the desert? What accounts for the delta between the U.S. position, like I said, which there’s bipartisan agreement, and the European position of which there is largely bipartisan agreement or, I should say, agreement across the political spectrum?

 

Robin Simcox:  Yeah. It’s such an important point. The first thing I would say is I guess just never underestimate the hypocrisy of most European politicians. Obviously, the heat that America got for Guantanamo coming out of Europe was extraordinary. And all of a sudden, European politicians are like, “Ah. Now I begin to see why this perhaps wasn’t such a good idea to be so holier than thou on this at the time.” Ultimately, it comes down to it was an easy stick to beat the Bush administration with a time when there was a lot of anti-American sentiment in Europe. That didn’t make it right at the time. It doesn’t make it right now. But that is, I think -- it was pretty cynical from politicians because they knew that America was -- that ultimately America had their back from a security perspective, and it allowed them to be indulgent, I think, in their excessive criticism of America at the time.

 

Now, obviously, the war is much closer to their door in terms of them having to wrestle with these issues. And they’ve been found wanting. I think there is a bit of a split in Europe where—I’m generalizing to an extent but not that much—where the political class is much keener -- the ruling political classes are much keener on keeping the fighters out. I think a lot of the academics and a lot of the think-tank analysts on this make the point that you did earlier -- that it’s better to have some of these citizens back in their countries where you can keep an eye on them. So I think there is -- I don’t necessarily entirely agree with that, even if I see the rationale behind it.

 

But yeah. There’s not doubt about it. Europe has been preaching on these issues of detention without trial for some years. And now as soon as it is faced with a similar dilemma has shown itself to be somewhat hypocritical an issue. And it does it no credit.

 

Seamus Hughes:  I agree with everything that Robin said, especially about the hypocrisy. But I’d also note the U.S. in the fortunate position to have the material support to terrorism clause. So we actually have an option to prosecute these folks. And I wonder whether if that wasn’t on the books -- whether we would be in the same view as our European counterparts. So we’re fortunate that we can do it, and as a result, we prosecute, which I think is the right call. But I think we also need to recognize that, if you’re staring down a guy who left in 2014 who’s going to come back to Germany and you’ve got nothing to prosecute him against, that choice becomes very stark very quickly.

 

Christopher K. Harnisch:  That’s a great point, Seamus. And kind of along those lines, one of the points that we’ve made to the Europeans when the Europeans -- they say to us, on occasion -- they say, “Oh, the United States just doesn’t have the same numbers of FTFs that are in Syria,” which with some countries that’s a true statement. But our rejoinder is generally, well, we do a very good job of preventing them from going over there in the first place. And that’s because of some of the laws and investigative powers that we have to interdict those that are seeking to get over to the combat zone. Seth, did you want to chime in on this question?

 

Dr. Seth G. Jones:  Yeah. Just briefly on two issues. One is I’ve heard from a number of different senior European officials concerns—this is just to add to Robin’s response earlier—concerns about radicalization, including in prisons or in society as being a concern of bringing them back to the UK and France and Germany. So even if you can prosecute them and put them in prison, concerns about -- if you look at the 2015 Islamic State attack in France, a number of the individuals involved there, as with the Charlie Hebdo attack, had come out of French prisons. And they have serious radicalization problems in a number of countries. They also just have bigger radicalization problems in their countries, including countries like Belgium outside of Brussels, in Molenbeek, for example.

 

So I think fortunately we still have -- most Americans of whatever religious bent are generally happier in the U.S. We see much less of a radicalization problem than we do at least in some European countries. I think this has created some hesitancy to bring them back, as well as for the judicial reasons that Robin laid out.

 

The problem, and this gets to my second issue, is that I see some of it as being very shortsighted. In other words, if European, Australian, and other governments -- we cannot collectively find some resolution to this, then we’re talking about the release of individuals either purposefully or because they’re able to escape custody. So whether their citizenship has been revoked or not, we’re talking about people with significant capabilities that will be able to either plot attacks in the areas they’re in, so Syria and Iraq against embassies or try to retake territory, or will start to rebuild the external operations capabilities that have been deteriorated over the last couple of years because of effective U.S. targeting from special operations forces.

 

So the problem is I think some of the conclusions are shortsighted in the sense that, if we don’t resolve this, then I think every government in Europe is going to have an additional problem on its hand, whether it’s the Paris-style attack that we saw in 2015 or the relatively easy to execute vehicle-borne attack that we’ve seen in Nice or in Berlin at the Christmas market. That’s my longer concern about an inability to deal with this.

 

Robin Simcox:  I have this as well, this idea of -- this thing of, well, we’ve got an issue with radicalization in our prisons. If you add terrorist onto that mix, you’re going to make the problem worse. I think of all the reasons that European officials give for not taking back their fighters, that’s the one I’m least sympathetic to because the idea that, well, we’re not going to lock up dangerous people because it’s going to create the potential for even more dangerous people, that’s not something you would ever apply with other people who’d committed serious crimes.

 

Well, we’re not going to pop murders in jail because it might connect them with more murderers. It’s one of these strange things that we sometimes apply to counterterrorism that we wouldn’t apply to any other crime. To me, the issues is, if there’s a problem with radicalization in prisons, you ought to fix radicalization in prisons. It’s not keeping dangerous people out of those prisons as well.

 

Obviously, different countries have kind of taken different approaches to this. The UK has at the moment got these separation centers where the most dangerous prisoners are kept entirely away from the rest of the prison population. Other Europeans take a slightly different approach. To me, if people have committed a crime and you can prosecute them, you’ve got to do it.

 

Christopher K. Harnisch:  Great points, Robin and Seth there. Seth, I think you really nailed it in terms of describing the political calculus of the Europeans really deciding to sacrifice long-term security for very short-term political gains, which is unfortunate.

 

Micah Wallen:  We have one more question on the lines here, so we’ll go ahead and try and squeeze that in.

 

Karen Lugo:  This is Karen Lugo. I just jumped back in, but I wanted to ask you real quickly is it important, imperative, for states to pass material support for terrorism statutes that would be an analog to the federal statute? What would be the reason? 34 states have them in some form. Is it important for states to pass this statute?

 

Seamus Hughes:  Maybe I can jump in on this one. The short answer is yes and no, like a good academic. Yes, it would be useful in terms of if you talk to FBI agents and FBI leadership. They’re talking about the concerns of minors that they have under investigation who they cannot charge or it’s nearly impossible to get charges through the National Security Division. We have seen in the past them kick them to state level charges, so that opens you up for options. Although, I’m not advocating to arrest a 15 year old for terrorism. I think there’s probably better ways than that.

 

On the other hand, and this is my concern when you have kind of a patchwork of material support laws around the country, is you’re going to have to build in some level of coordination between Bureau prisons and the state folks, too, because we just talked about prison radicalization. But if you’ve got a guy charged with material support at a state level, we have communication monitoring units at the federal level. We don’t have that at the state levels. There’s different dynamics that are at play. The sentencing has to be shorter and smaller, and it just depends.

 

We’ve seen Arizona, New Jersey, Alabama really step up on their state level terrorism charges. South Carolina passed one recently after they had a case down there. My only concern is the level of coordination.

 

Christopher K. Harnisch:  Thanks, Seamus. Seth or Robin, do you want to chime in on this one?

 

Robin Simcox:  Nothing from me.

 

Dr. Seth G. Jones:  Nope. Nothing else from me. That was good.

 

Christopher K. Harnisch:  Hey, I want to thank everybody for joining the call today, especially thank The Federalist Society for convening this call and most especially thank the panelists for really what I thought was incredible insight. I worked this issue day in and day out, and I learned a lot listening to you three. Just really great insight today. So thank you very much. Thank you for all the work you’re doing on this incredibly important topic. And I hope all the callers were able to get something out of this conversation. I sure did. So thanks everybody and have a wonderful weekend.

 

Micah Wallen:  On behalf of The Federalist Society, I’d like to thank all of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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