Benghazi suspect faces U.S. criminal, not military, court


A suspected leader of the attack on the U.S. compound in Benghazi, Libya, captured by U.S. forces and spirited out of the country, can expect to move quickly through the initial steps of the criminal justice system within hours of arriving on American soil.

Seized in a raid last Sunday, Libyan militant Ahmed Abu Khatallah is the suspected leader of a group implicated in the 2012 attack on a U.S. diplomatic compound and CIA base in Benghazi.

A U.S. official, speaking on condition of anonymity, said Abu Khatallah was aboard the USS New York, an amphibious transport ship traveling toward the United States at normal speed.

Along the way he can expect to be questioned by intelligence experts and criminal investigators, and then delivered for arraignment to enter a plea and face questions about bond and the possible appointment of a public defender.
“This is the way it’s going to be. When the U.S. decides they’re going to indict someone abroad, they’re going to bring them to the criminal justice system,” not to military prisons as during the George W. Bush administration, said Karen Greenberg, the director of Fordham University’s Center on National Security. “He’s going to be tried quickly.”

U.S. Ambassador Christopher Stevens and three other Americans died in the Benghazi attack. Abu Khatallah is charged with killing a person on U.S. property, a firearms violation and providing material support to terrorism.

The charges were filed in July 2013 but kept under a court seal until Tuesday. He is expected to be formally indicted by a U.S. grand jury.

The U.S. Justice Department filed the charges against Abu Khatallah in U.S. District Court in Washington, D.C., a venue that prosecutors have only rarely used for criminal cases involving those suspected of terrorism.

The courthouse is three blocks from where Congress meets. The White House is 12 blocks in the opposite direction. The U.S. Attorney’s Office in Washington has handled the Abu Khatallah investigation and the case will stay in the U.S. capital, a spokesman said.

Common venues for U.S. terrorism cases have been the federal courts in New York and in Alexandria, Virginia.

President Barack Obama’s administration once thought about using Washington as a venue to try detainees held at the U.S. prison in Guantanamo Bay, Cuba. In the face of public and political objections to bringing terrorism suspects onto the U.S. mainland, Obama ordered that the detainees be tried before military commissions in Guantanamo.

Judge Royce Lamberth, who in 2009 was chief judge of the U.S. District Court in Washington, said at the time that the court was prepared to handle the trials. In a speech to a group of lawyers, he said domestic U.S. street gangs could be more dangerous than Guantanamo detainees.

U.S. prosecutors followed a similar pattern in October after capturing another accused militant in Libya, Abu Anas al-Liby, and taking him to New York for trial.

Also in October, a Tunisian man, Nizar Trabelsi, was extradited to the United States from Belgium on charges of planning to attack a NATO air base in 2001 on behalf of al Qaeda. His case is pending in Washington.


If officials proceed as they did in the cases of al-Liby and Trabelsi, then Abu Khatallah would be brought quickly into a federal courtroom for an initial appearance.

A judge or magistrate would assign him a lawyer if he could not afford his own. The Federal Public Defender for the District of Columbia represents Trabelsi.

In the case of al-Liby, a public defender asked to be appointed as defense lawyer before al-Liby had arrived in the United States. A federal judge in Manhattan denied the request.

As a non-U.S. national, Abu Khatallah may be advised of his right under international law to access his consulate or embassy. Libya’s embassy in Washington is located in the Watergate complex of offices and apartments.

He would be taken to a jail to await further proceedings and a trial, with his conditions of confinement determined by the judge or magistrate and by the jail that holds him. His defense lawyer and prosecutors could contest those conditions, such as the level of access to mail, a telephone and visitors.

Prosecutors may ask for a protective order barring Abu Khatallah’s defense lawyers from speaking publicly about information the government considers confidential. Later, defense lawyers might ask for a change of venue if they thought Abu Khatallah could not get a fair trial in Washington.

If Abu Khatallah were charged with a crime eligible for the death penalty, U.S. Attorney General Eric Holder would determine whether prosecutors want to seek it.