- The Washington Times - Sunday, October 1, 2017

The deadly 2012 attack on an American compound in Benghazi, Libya, reverberated in Washington politics for years — including an 11-hour public grilling on Capitol Hill of former Secretary of State Hillary Clinton and the discovery of Mrs. Clinton’s private email server — resulting in an 800-page congressional report that concluded the Obama administration misled the public.

Five years after the attack, a jury will consider the events that claimed the lives of four Americans.

The criminal trial of the accused mastermind, Ahmed Abu Khattala, opens Monday in federal court in the District of Columbia and is expected to run for at least four weeks.

Legal analysts say the trial has the potential to showcase the value of prosecuting terrorism cases in American courts rather than military tribunals and to provide a measure of closure for victims’ families and for the American public.

Mr. Khattala, the only person to be prosecuted in relation to the attacks, was charged with crimes including murder of an officer of the United States and conspiracy to provide material support to terrorists. Officials said Mr. Khattala, 46, was a local leader of an Islamist extremist militia who sought to carry out the attack because he believed the mission was being used to collect intelligence and he viewed the U.S. actions as illegal. He told a group of others about the mission, which the group breached in a violent attack and set fire to it.

Ambassador J. Christopher Stevens and U.S. information management officer Sean Smith died as a result of the attack on the complex. Security officers Tyrone Woods and Glen Doherty were killed in a subsequent attack on a nearby government annex.

Mr. Khattala has pleaded not guilty to the charges, and his defense attorneys have tried unsuccessfully to challenge various aspects of his detention and interrogation, including whether his rights were violated when he was questioned by CIA and FBI officials and transported to the U.S. over a two-week period on a slow-moving Navy ship.

U.S. District Judge Christopher R. Cooper has rejected those claims. His finding that Mr. Khattala gave his statements voluntarily allowed the high-profile case to move forward much more quickly than if it had gone before a military tribunal at Guantanamo Bay, Cuba, said Adam Jacobson, a researcher who specializes in national security issues at Human Rights First.

“In general, federal courts handle terrorism cases a lot smoother than military commissions,” Mr. Jacobson said.

The dispute over Mr. Khattala’s detention on the Navy ship is the sort of legal issue that federal court judges deal with all the time, he said.

“That same issue would have slowed a military trial down a significant amount,” he said.

While the Obama administration was trying to shutter Guantanamo, some Republican lawmakers argued that terrorism suspects should continue to be brought to the military prison, where they can be held as enemy combatants and questioned indefinitely. As a senator, Attorney General Jeff Sessions was among those who expressed concern that when terrorism suspects are advised of legal protections afforded through the civilian justice system, such as the right to remain silent or have an attorney, that authorities can lose the ability to gather valuable intelligence.

With regard to Mr. Khattala’s case, investigators appear to have handled his separate interrogations in a two-tiered approach that the judge found acceptable, said Karen Greenberg, director of Fordham University School of Law’s Center on National Security.

“We’ve seen this in a much more troublesome way when it deals with torture,” she said, citing past terrorism investigations.

Judge Cooper’s order allowing the statements Mr. Khattala gave to investigators to be used in the case states that Mr. Khattala appeared to have been treated humanely and agreed to speak with investigators even after he was advised of his Miranda rights multiple times.

According to court filings in the case, Mr. Khattala was interviewed seven times by intelligence officials. After a two-day break, he was interviewed six times by a completely different group of FBI investigators aboard the ship. He was advised of his Miranda rights before the FBI interviews and told his “prior statements would ‘probably not be used against [him] in U.S. courts,’” according to court records.

“On no fewer than 15 occasions, he was advised of his Miranda rights in Arabic — six times in writing and nine times verbally. Without exception, he indicated either verbally or in writing that he understood those rights and wished to waive them,” Judge Cooper wrote.

Even as authorities continue to refine the hybrid interrogation approach, authorities have obtained convictions in hundreds of terrorism-related cases.

According to Justice Department documents from 2015, federal civilian criminal courts had convicted 620 people on terrorism-related charges since the Sept. 11, 2001, terrorist attacks.

The number of convictions has continued to climb. A Fordham University School of Law analysis found that from March 2014 through August 2017, 135 people had been charged with and 77 people had been convicted of crimes linked to the Islamic State.

Since 2001, military commissions have resulted in eight convictions, with four overturned. The five accused of conspiring in the Sept. 11 attacks have yet to go to trial after more than a decade in custody at Guantanamo.

In the Khattala case, legal analysts say, they will be curious to see the type of evidence used at trial. One of the arguments against using the federal courts for terrorism prosecutions is that it’s more difficult to collect evidence in a conflict zone. At least one piece of evidence prosecutors intend to introduce at Mr. Khattala’s trial is a collection of call records from a phone they say he used, according to court files.

“What we have seen with a lot of these cases is the military and the FBI and the Justice Department in general do a pretty good job of collecting evidence and finding witnesses even in places where those things would be presumably a bigger challenge,” Mr. Jacobson said.

Because of the degree to which the Benghazi attack became political fodder, Ms. Greenberg said, the trial may serve an important role in putting the matter to rest.

“One of the important contributions of public trials is that they preset facts and create the narrative about events — whatever the crime is,” she said. “So you learn a tremendous amount about the people involved, the sequence of events. It really will be settling to the American people to have a narrative presented by the evidence admitted in court.”

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