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Trial Looms For Sole Defendant In 2012 Benghazi Attack That Killed Ambassador

Aug 23, 2017
Originally published on August 23, 2017 6:56 pm

On the evening of Sept. 11, 2012, intruders attacked the diplomatic compound in Benghazi, Libya. They fired machine guns and rocket-propelled grenades. Buildings there burned. By the following day, four Americans had died, including Ambassador Chris Stevens.

Now, almost five years after that deadly episode, one man accused in the attack is preparing for trial in Washington, D.C.

Ahmed Abu Khatallah, a 46-year-old auto mechanic who spent years in Libyan prisons after opposing the Moammar Gadhafi regime, has pleaded not guilty to murder and terrorism charges that could send him away for the rest of his life.

Experts who have defended other people accused of national security offenses said his case raises novel questions about interrogation and due process, even if he faces long odds in an American court.

"Any time the word 'terrorism' is mentioned in a federal courtroom, the chances of a defendant getting an acquittal are very low," said Virginia defense lawyer Edward MacMahon. "That's just the way it is."

MacMahon defended Zacarias Moussaoui, who eventually pleaded guilty to conspiring to kill Americans in connection with the Sept. 11, 2001, strikes on the World Trade Center and the Pentagon.

MacMahon said lawyers for Khattalah will need to find jurors who can keep an open mind.

To that end, defense lawyers and prosecutors have drafted a jury questionnaire that spans 48 pages. It includes questions about how people view the Islamic faith. It asks whether prospective jurors have formed opinions about Hillary Clinton, who was secretary of state in 2012, and about President Trump's travel ban for visitors from six majority-Muslim countries.

That makes sense to defense lawyer Michael Bachrach, who said he sifted through some 1,000 possible jurors before the trial of Ahmed Ghailani. Ghailani faced hundreds of charges connected to the 1998 East Africa embassy bombings. Ultimately, a jury found him guilty of a single crime.

Ghailani's case is relevant for another reason: A judge in New York threw out statements he made to the government because of the way the government handled his interrogation. But last week, the opposite happened for Khatallah.

U.S. District Judge Christopher Cooper ruled that Khatallah was not mistreated by U.S. Special Operations Forces during their nighttime capture raid, brushing aside photos of the defendant with bruises and gashes on his face.

The judge found that the method of interrogating Khatallah, starting with questions from a high-value-detainee intelligence team, taking a break, and then renewing the sessions with a "clean" group of FBI agents, passed legal muster.

"If they lose at trial, I am certain this will be issue No. 1," said defense lawyer Bachrach. "It's a huge issue for defendants. I'm actually quite surprised that the statements came in. In my own experience, when there has been a question in a terrorism case about the two-step procedure, of the CIA doing the interview first before the FBI, because of the practices of what's involved in a CIA interrogation, well, those practices don't pass scrutiny under the Constitution."

The judge in Khatallah's case also said that taking 14 days to bring the defendant to court in the U.S. after transporting him, slowly, on the USS New York was reasonable given the extraordinary circumstances in the case.

Prosecutors in the U.S. Attorney's Office in Washington and public defenders representing Khatallah declined to comment about the judge's decision and the upcoming trial, which could last six weeks or more.

The Justice Department has decided not to seek the death penalty in the case. Legal experts say they expect Khatallah's lawyers to raise questions about why he is the only person facing trial and to ask whether U.S. investigators really know what happened during the chaos five years ago.

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ROBERT SIEGEL, HOST:

On the evening of September 11, 2012, intruders attacked a diplomatic compound in Benghazi, Libya.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED MAN #1: (Speaking Arabic).

(SOUNDBITE OF GUNSHOT)

SIEGEL: They fired machine guns and rocket-propelled grenades. Buildings there burned. By the following day, four Americans had died, including Ambassador Chris Stevens. Now, almost five years after that deadly episode, one man accused in the attacks is preparing for trial in Washington, D.C. NPR justice correspondent Carrie Johnson reports.

CARRIE JOHNSON, BYLINE: A few months before the attack that would take his life, Chris Stevens introduced himself in a cheerful video.

(SOUNDBITE OF ARCHIVED RECORDING)

CHRIS STEVENS: (Speaking Arabic). My name is Chris Stevens, and I'm the new U.S. ambassador to Libya.

JOHNSON: Stevens was excited about his new posting, but the security situation in Libya which was already bad got worse. The diplomatic compound in Benghazi was overrun on the night of September 11, 2012. Stevens and three other Americans died. President Obama condemned the violence and promised to bring the perpetrators to account.

(SOUNDBITE OF ARCHIVED RECORDING)

BARACK OBAMA: We will not waver in our commitment to see that justice is done for this terrible act. And make no mistake. Justice will be done.

JOHNSON: It's been a long wait. Investigators and reporters dug through the wreckage in Benghazi and reached out to people who had been there, finally focusing on one person - Ahmed Abu Khattala, an auto mechanic who opposed the Gadhafi regime and who had also spent time in prison. A year after the attacks, he met with CNN correspondent Arwa Damon for an interview in a hotel coffee shop in Benghazi.

(SOUNDBITE OF ARCHIVED RECORDING)

ARWA DAMON: He seemed to be confident, his demeanor most certainly not that of a man who believed that he was going to be detained or targeted anytime soon.

JOHNSON: In July 2013, the U.S. issued an arrest warrant for Khattala, and then...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED MAN #2: Breaking news in this Fox News alert - an arrest has been made in connection with the Benghazi terror attacks. At least...

JOHNSON: U.S. special operations forces had traveled to Libya for a nighttime capture mission. They put Khattala on the USS New York and transported him to Washington to face justice. That boat trip took 14 long days. While on board, he was interrogated first by a special intelligence unit. The FBI waited a couple of days. They gave him new living quarters on the boat and administered Miranda warnings. Eventually, prosecutors charged him with leading a militia group and conspiring to attack the U.S. facilities in Benghazi. He's pleaded not guilty. But those statements Khattala made on the boat will be a big issue during his trial in September.

MICHAEL BACHRACH: If they lose a trial, I am certain this will be issue number one.

JOHNSON: That's Michael Bachrach. He's a defense lawyer who's handled several terrorism cases. Bachrach says he did not expect the judge in that Khattala case to allow prosecutors to use the statements he made on the ship.

BACHRACH: It's a huge issue for defendants. I'm actually quite surprised that the statements came in. In my own experience, when there has been a question in a terrorism case about the two-step procedure of the CIA doing the interview first before the FBI, because of the practices of what's involved in a CIA interrogation, well, those practices don't pass scrutiny under the Constitution.

JOHNSON: But last week, Judge Christopher Cooper ruled that he was not mistreated by the government onboard the ship. And Judge Cooper said taking 14 days to bring him to court was reasonable given the extraordinary circumstances in the case. Both the Justice Department and the defense are now preparing for jury selection in a trial that could last six weeks or more. Defense lawyer Edward McMahon is not involved in the case, but he says Khattala is in for a challenge.

EDWARD MCMAHON: Any time the word terrorism is mentioned in a federal courtroom, the chances of a defendant getting an acquittal are very low. That's just the way it is.

JOHNSON: McMahon says the defense needs to find jurors who have an open mind. The jury questionnaire in the Benghazi case is 48 pages long. It includes questions about how people view the Islamic faith and asks whether prospective jurors have formed opinions about Hillary Clinton, who was secretary of state in 2012, and about President Trump's travel ban for visitors from six majority Muslim countries.

The Justice Department has decided not to seek the death penalty in the case. Legal experts say they expect Khattala's lawyers to raise questions about why he is the only person facing trial and to ask whether U.S. investigators really know what happened during the chaos five years ago. Carrie Johnson, NPR News, Washington.

(SOUNDBITE OF APHEX TWIN'S "JYNWEYTHEK YLOW") Transcript provided by NPR, Copyright NPR.