Alleged leader of 2012 Benghazi attacks on U.S. diplomats to face trial
By JOSEPH TANFANI | Tribune Washington Bureau | Published: October 1, 2017
WASHINGTON — A Libyan man accused of leading the 2012 Benghazi attacks goes on trial here Monday, providing another test for the government’s ability to prosecute high-profile terrorism cases in civilian courts even as the White House supports using military tribunals at Guantanamo Bay.
The federal trial also will shine a light on the U.S. detention of terrorism suspects in secret — the latest being a still-unidentified American citizen who was captured in Syria by local militias on Sept. 12 and handed over to the U.S. military, which said he had fought for Islamic State.
The Trump administration has yet to publicly identify the American or say where he is being held. It’s not clear if he has been charged, given a lawyer or brought back to the United States.
A Pentagon spokesman, Maj. Benjamin E. Sakrisson, said Thursday that the International Committee of the Red Cross has been notified about the detention and is expected to meet with the suspect “in the near future.”
In the Benghazi case, U.S. special forces captured Ahmed Abu Khatallah in Libya in 2014. Intelligence operatives questioned Khatallah on a U.S. warship for nearly two weeks before he was charged and given access to a lawyer.
He was accused of leading the armed militia that overran a U.S. diplomatic compound and nearby CIA post in Benghazi on Sept. 11, 2012, killing the U.S. ambassador and three other Americans.
Khatallah is charged with 18 counts, including murder and providing support for terrorists. The U.S. is not seeking the death penalty.
The Benghazi case was a flashpoint for Republican criticism of Hillary Clinton’s tenure as secretary of state. It is also the first major terrorism trial under President Donald Trump, who promised during the campaign to again send terrorism suspects to the military prison at Guantanamo Bay, Cuba, instead of trying them in criminal courts.
No terrorism suspects have been sent to Guantanamo Bay since early in the George W. Bush administration. But Trump promised to “load it up” with more detainees, reversing President Barack Obama’s unsuccessful attempts to close it. Attorney General Jeff Sessions similarly called it “a very fine place for holding these kind of dangerous criminals.”
Trump has not issued a new policy on the prison.
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In July, Ali Charaf Damache, an Algerian, was extradited from Spain to Philadelphia to face federal charges of recruiting men and women for al-Qaida. One of his recruits was Colleen LaRose, the American woman known as Jihad Jane who was arrested in 2009.
“All options remain on the table,” the Justice Department said in a statement Friday, adding that Trump has “a wide range of tools and authorities” to fight terrorists.
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The 2012 assault in Benghazi came in the chaos after Libyan Prime Minister Moammar Gadhafi.
Militias attacked the U.S. diplomatic compound with machine guns, mortars and rocket-propelled grenades, killing Ambassador J. Christopher Stevens and another embassy employee, Sean Smith.
Prosecutors say Khatallah, a senior leader of Ansar al Sharia, an Islamist militia, had planned the attack to thwart the United States from gathering intelligence.
According to the charges, Khatallah, now 46, supervised fighters who seized documents and computers at the compound that revealed the location of the CIA post. A mortar attack there several hours later killed security officers Tyrone Snowden Woods and Glen Anthony Doherty, both former Navy SEALs.
A series of Republican-led committees in Congress spent years investigating Hillary Clinton’s response to the late-night attacks. Various reports found inadequate security at the compound, leaving the diplomats vulnerable, but said the U.S. military was not in a position to rescue them.
Khatallah later lived openly in Benghazi and even gave media interviews. After he was lured to a seaside villa in June 2014, American commandos grabbed him and took him to a Navy amphibious transport ship, the New York, waiting offshore.
Critics of putting terrorism defendants on trial say the priority should be extracting actionable intelligence, not warning suspects that anything they say can be used against them in court. In questioning Khatallah, the government tried to have it both ways.
For the first three days, he was questioned by intelligence officers about terrorist organizations and possible plots. His answers remain classified, and the Justice Department says they weren’t used to build the criminal case against Khatallah.
After FBI agents were helicoptered to the ship, they gave Khatallah a Miranda warning and began a second interrogation.
“We are now starting anew,” the agents told him, according to court papers. “You are not compelled to speak to us today just because you have already spoken with others in the past.”
The government says Khatallah signed a waiver of his right to keep silent and wrote, “I am prepared to give statements and answer questions” before he spoke to the criminal investigators.
It took 13 days for the ship to arrive in Virginia, apparently in part because of engine trouble. In a hearing, the captain testified that no one in the FBI asked him to slow down to prolong the interrogation. Khatallah has been held in jail in Alexandria, Va., awaiting trial.
In pretrial motions, defense lawyers accused the government of a “slow boat” strategy to keep Khatallah from a lawyer, and argued that the two-step interrogation was done to defeat the purpose of a Miranda warning. They also tried to get the charges besides murder dismissed, saying those laws should not apply outside the country.
But U.S. District Judge Christopher Cooper allowed the charges and Khatallah’s statements to stand.
“Abu Khatallah was treated respectfully and humanely while in custody,” the judge wrote. “He was not subject to threats or promises of any kind; and his interview sessions were broken up frequently with time for meals, rest and prayer.”
Whatever the verdict, the trial has reignited the debate on how the U.S. should handle captured foreign terrorists.
Under President Barack Obama, the Justice Department prosecuted alleged foreign fighters in U.S. courts, winning convictions in nearly every case. Prosecutors even used terrorism laws for action on the battlefield: In March, Ibrahim Suleiman Adnan Adam Harun was convicted in Brooklyn for his role in an ambush that killed two U.S. soldiers in Afghanistan.
“We know how to do this,” said Karen J. Greenberg, director of the Center on National Security at the Fordham University School of Law. “Either you trust your court system and your prison system, or you don’t.”
In contrast, the system for military trials at Guantanamo Bay is snarled in endless delays. Only eight men have been convicted by the military tribunals since the prison opened in 2002, and three of those convictions were overturned.
The five al-Qaida members charged with plotting the Sept. 11, 2001 attacks in the U.S. still haven’t gone on trial. Military prosecutors have proposed a trial date in January 2019, but defense lawyers doubt it will happen that soon.
“The military, despite using all the king’s horses and all the king’s men, has almost nothing to show for a decade-plus of effort,” said Eugene R. Fidell, who teaches military law at Yale Law School. “It’s one of the most preposterous situations I can think of in the history of American law.”
W.J. Hennigan contributed to this report.
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