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 attacks 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 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.