Render Unto Kurds

Will the ISIS Widow Pay the Ultimate Price?

Instead of being tried in a U.S. courtroom for her role in an American hostage’s rape, Umm Sayyaf will face the—possibly very severe—justice of the Iraqi Kurds.

08.18.15 8:55 PM ET

Umm Sayyaf, a key player in the abduction and enslavement of young women and girls by the so-called Islamic State, will stand trial for her alleged crimes. But probably not for her role in the imprisonment and rape of young American aid worker Kayla Mueller, who died while in the hands of ISIS this year. Nor will Umm Sayyaf, the wife of a top ISIS figure killed in a U.S. raid last May, be held to account in an American courtroom.

U.S. officials told The Daily Beast in several interviews that the decision about how to deal with Umm Sayyaf, the most senior ISIS prisoner in American custody, was the result of both legal and pragmatic considerations. They conceded that while, in the end, there will be justice—perhaps very severe justice—for Mueller, it might not take the shape some had expected or hoped.

Indeed, the handling of the case is highly unusual and poses significant questions about how future ISIS fighters captured overseas will be dealt with by U.S. authorities.

Umm Sayyaf, who is an Iraqi citizen, was captured by U.S. forces in Syria. She was interrogated in Iraq by an American unit that operates outside the traditional criminal justice system. But the decision on where to try her was based largely in deference to Iraqi law. And she will now be turned over not to the government of Iraq in Baghdad, but Iraq’s Kurdish regional government in Erbil, which is expected to “throw the book” at her, and perhaps do much more than that.

Iraq’s own legal system made extraditing Umm Sayyaf difficult if not impossible, said one senior administration official.

“We discussed the idea of her surrender and extradition to the U.S. with senior-level [government of Iraq] officials, but ultimately that option was not available as Iraq has a constitutional prohibition on surrendering Iraqi citizens to foreign authorities,” the official said.

What’s more, even if Umm Sayyaf, whose real name is Nasrin As’ad Ibrahim, were brought back to an American courtroom, officials worried that they didn’t have enough evidence to build a case against her, at least not one that would persuade 12 jurors beyond a reasonable doubt that Umm Sayyaf was responsible for Mueller’s abduction and death, Defense Department officials told The Daily Beast.

Umm Sayyaf was interrogated by a special U.S. team outside the traditional legal protections afforded to people held inside the United States. While much of the information her questioners obtained was exceptionally valuable for intelligence purposes, and, Defense officials said, pointed to Mueller having been raped by the top ISIS leader, Abu Bakr al-Baghdadi, the information might not be admissible as evidence in a U.S. criminal trial.

By contrast, officials said that the Kurds will charge Umm Sayyaf with crimes committed against Iraqis and likely dispense with her case much more quickly than would the American legal system.

The Kurds will “throw the book” at the ISIS fighter, according to one defense official who spoke on condition of anonymity. He said charges are likely to be filed in the coming weeks.

Umm Sayyaf allegedly played a leading role in the ISIS brutalization of women and girls, including the kidnapping and enslavement of Yazidis captured in the northern Iraqi town of Sinjar last August, U.S. officials and terrorism experts say. Those will likely be among the crimes she’s tried for in Erbil, as well as potential terrorism charges, the defense officials said.

The Obama administration told Mueller’s parents about the decision to transfer Umm Sayyaf to Iraqi custody on August 5, a day before she was moved, according to Emily Lenzner, a spokeswoman for the Muellers. “They appreciated being apprised of the government’s plans,” she told The Daily Beast.

Kurdish authorities also feel that they have a case against Umm Sayyaf for her role in capturing and selling Yazidis from Sinjar, says Mark Alsalih, a lobbyist who works in Washington for Iraqi tribal leaders and speaks regularly with Kurdish officials in Iraq. Sinjar was largely inhabited by Yazidis, a persecuted religious minority. In a lengthy exposé published last week, The New York Times documented the self-proclaimed caliphate’s use of Islamic teachings to justify the systematic rape of young women and girls that the group labels apostates and non-believers.

Alsalih told The Daily Beast that officials in Iraq’s central government in Baghdad wanted nothing to do with Umm Sayyaf and were happy to have the Kurds prosecute her: “When I asked an Iraqi judge about it he told me, ‘We have enough bad guys on our hands and don’t need a “magnet” to entice ISIS attacks. Let the Kurds deal with her.’”

The Obama administration was also persuaded that having Umm Sayyaf stand trial in Erbil was the best of all options, and conveyed that assessment to Mueller’s family.

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“The decision to transfer Umm Sayyaf to Iraqi authorities was based on unanimous interagency consensus that the detainee’s transfer would be appropriate with respect to legal, diplomatic, intelligence, security, and law enforcement considerations,” Alistair Baskey, a spokesperson for the National Security Council, told The Daily Beast. The decision was made “in full coordination with the Government of Iraq,” he added.

U.S. officials also consulted with Kurdish officials. “We work closely with the Kurdistan Regional Government authorities and for various reasons, including the location of potential witnesses, it made sense to transfer her to the custody of Iraqi authorities in Erbil,” Baskey said.

Those witnesses will almost certainly include Yazidi women and girls who were taken by ISIS and sold to fighters who raped them. Among them are at least two women who were held in Syria last year with Mueller at the home of Umm Sayyaf and her husband, Abu Sayyaf, in the eastern town of Al-Shaddadeh. Abu Sayyaf, described as the chief financial officer of ISIS and the man in charge of its illicit oil sales, was killed in a raid by U.S. special operations forces in May in Syria. Umm Sayyaf was captured and taken to Erbil.

The Yazidi girls escaped from Abu Sayyaf’s home last October, according to published accounts confirmed by U.S. officials. They made their way to northern Iraq, where at least one of them was interviewed the following month by U.S. authorities.

One adviser to the U.S. military familiar with the questioning said it provided a precious tip about where Mueller was being held. “That should have given them some idea where Kayla was,” the adviser told The Daily Beast.

The adviser said it’s not unusual for the U.S. military to take months to move on intelligence about the possible whereabouts of hostages. In addition, the accidental death of Warren Weinstein during a U.S. drone strike in January that was aimed at Al Qaeda in Pakistan has made an already cautious administration reluctant to sign off on risky operations that could result in American civilian casualties.

“The threshold has gotten higher, particularly in this administration” on when to act on new leads, the adviser noted.

Peter Cook, the Pentagon spokesman, told The Daily Beast, “No other concept of operations for a rescue of Kayla was ever presented by the Department of Defense to the White House or senior administration officials, as there was never sufficient intelligence to confirm her location. Any reports to the contrary are factually inaccurate‎.”

In any event, it appears that ISIS moved Mueller after the Yazidi girls escaped. In February, the group announced that she had been killed near Raqqa in a Jordanian airstrike meant to avenge the burning to death of a downed Jordanian pilot. U.S. officials have disputed that claim. But ISIS showed a photo of a bombed building near Raqqa where it said Mueller had been held and that European intelligence sources have said was a known holding site for Western hostages.

Baskey, the National Security Council spokesperson, said that the building “was a known ISIL weapons storage compound located near Raqqa,” using the administration’s preferred acronym for ISIS. “This target had been struck on previous occasions and was damaged. It is not uncommon for the coalition to conduct multiple strikes on the same target.”

“At this time we are not able to confirm a cause of death,” Baskey added. “The U.S. military has indicated there was no evidence of civilians in the target area prior to any Coalition airstrikes. What we are certain of is that ISIL is responsible for Kayla’s captivity and death.”

The U.S. came frustratingly close to rescuing Mueller and other American hostages before she was taken to Al-Shaddadeh and made a prisoner in Umm and Abu Sayyaf’s home.

In July last year, acting in part on tips from two European men whom ISIS had released—possibly after their governments paid ransom—U.S. special operations forces launched a raid near the de facto ISIS capital of Raqqa. But Mueller, along with American hostages James Foley and Steven Sotloff, who were also suspected of being at the site, were nowhere to be found. U.S. officials did recover a piece of Mueller’s hair, indicating that she’d been held there.

One of the Yazidis imprisoned with Mueller also provided information about her rape and physical abuse while an ISIS prisoner, defense officials told The Daily Beast.

Last week, ABC News reported that the ISIS chief Abu Bakr al-Baghdadi had made several trips to Abu Sayyaf’s home and raped Mueller. Officials stressed to The Daily Beast that it wasn’t clear that the Yazidi girl, whom U.S. officials spoke to last November, was able to say definitively that Mueller’s rapist was al-Baghdadi.

Nevertheless, ABC reported that the girl had provided U.S. officials with “the whereabouts of the last American known to be in ISIS hands,” which was Mueller. It’s unclear whether U.S. officials thought that information was credible enough to mount another rescue operation or if any planning was underway at the time.

The FBI, which is responsible for investigating cases of Americans held overseas, told the Muellers last June that their daughter had been raped by al-Baghdadi, said Lenzner, the family spokesperson. The family was informed at the same time they were briefed on the results of a government-wide review of hostage policy, which President Obama ordered after family members complained they were kept in the dark about efforts to find their loved ones. They said the delicate process was plagued by bureaucratic infighting and a lack of urgency to move on perishable intelligence.

Exactly what happens to Umm Sayyaf now could have an influence on the fate of future Iraqi ISIS fighters in American custody. Umm Sayyaf has been visited by the International Committee of the Red Cross, “at a place of detention in Iraq,” Anna K. Nelson, the group’s head of communications and public affairs, told The Daily Beast. “But in compliance with our confidential working procedures, I’m not in a position to provide any details.”

U.S. officials concede that Erbil could become a future destination for ISIS detainees, but said they don’t know because Umm Sayyaf is the first detainee to be sent there by the United States.

“It stands to reason that it could evolve that way,” one defense official explained.