The interrogation of a Libyan militia leader accused of leading the 2012 Benghazi terrorist attack that killed a U.S. ambassador will take center stage at a week-long federal court proceeding in Washington that could reveal new details about his capture and arrest by American authorities.
Beginning Wednesday and over seven days, U.S. prosecutors and defense attorneys have told a federal judge they will lay out a detailed timeline of the treatment of Ahmed Abu Khattala, who was interrogated during 13 days aboard a U.S. Navy vessel without a lawyer present.
Abu Khattala, 46, was questioned in a two-step process after being seized in June 2014 by U.S. Special Operations forces at a villa south of Benghazi and transported by sea to the United States.
Prosecutors said Abu Khattala waived in writing his right not to answer questions before making statements that led to his indictment on 18 counts in the September 2012 attacks, including charges of murdering U.S. Ambassador J. Christopher Stevens and three other Americans, killing a person in an attack on a U.S. facility and providing material support to terrorists. He has pleaded not guilty.
Abu Khattala’s lawyers allege the U.S. policy of abducting him and then exposing him to two separate sets of questioners — first an intelligence-gathering unit not subject to constitutional safeguards and, later, an FBI unit that read him his Miranda rights before collecting evidence for criminal prosecution — was deliberately engineered to prevent his access to a lawyer and left him unable to understand he was signing away his legal protections.
The defense says none of Abu Khattala’s statements made over eight days of questioning by FBI agents should be allowed into evidence. He earlier was questioned over more than three days by a High-Value Detainee Interrogation Group of military, intelligence and law enforcement officials.
Abu Khattala is not expected to attend the week-long hearing at the federal courthouse in D.C. A spokesman for the U.S. attorney’s office said it would not comment on the location of defendants in custody.
The hearing before U.S. District Judge Christopher R. “Casey” Cooper will provide a rare glimpse into the U.S. criminal justice system’s recent handling of terrorism suspects at sea, the secrecy involved and its legal limits.
No defendant has been held under similar circumstances and questioned for longer than Abu Khattala before being presented to a U.S. court, his lawyers argue. Another Libyan terrorism suspect grabbed overseas and held 10 days at sea by U.S. forces was set for trial in New York in 2015. The defendant died days before trial and before a judge ruled on a motion to toss out his statements made after he waived his Miranda rights during a 13-hour flight to New York. However, the judge barred evidence of his treatment before the flight.
In contrast, Cooper is expected to hear testimony in Abu Khattala’s case by two members of the intelligence team in closed proceedings, while other classified material will be introduced out of public view.
Two of 16 witnesses called for the hearing are expected to appear under a pseudonym for their safety, both sides said, including an onboard physician who attended Abu Khattala and one member of the intelligence team.
Abu Khattala’s lawyers said the multimillion dollar American operation to transport and question him was meticulously planned to set up a constitutional “Potemkin village” — creating the appearance of protecting the defendant’s rights but not the reality — to allow “two weeks of continuous and unrecorded interrogation.”
Defense lawyers said Abu Khattala had a ninth-grade education, had been imprisoned by Moammar Gaddafi’s regime, and had no understanding of the “Law and Order” civil liberties protections of the U.S. criminal justice system or the distinction between his sets of questioners. They cited a photograph showing that Abu Khattala was “beaten badly” during his apprehension, adding that he was taken aboard the USS New York “shackled, hooded, gagged and deafened” with sound eliminating headphones to maximize his disorientation.
When Abu Khattala asked for a lawyer, he was told none were aboard, even though one could have been flown aboard or made available by video conference, attorneys with the federal public defender’s office of the District and the Lewis Baach law firm wrote in a court filing.
“The interrogators did not offer to call a lawyer . . . but told Mr. Abu Khattala that having a lawyer on the ship was not possible. In fact that was a lie. It was possible, but the government decided not to permit it,” the defense said.
Instead, they accused the government of deploying a “slow boat to D.C. strategy” that maximized interrogation time under the pretext that no plane or country was available to fly him out sooner.
“The reality remained the same. Mr. Abu Khattala was a disoriented prisoner trapped in a freezing cold, brightly lit room on a journey of uncertain duration or destination, and there was no lawyer to help him,” his lawyers said.
Prosecutors say that Abu Khattala’s rights “were scrupulously upheld.” Two days passed between interrogation teams, U.S. officials said, and he was provided breaks, medical attention, the opportunity to pray and the opportunity to refuse to answer questions and invoke his rights.
The halt to the intelligence unit’s work, the government added in court filings, was accompanied by a change in decor and routine in Abu Khattala’s surroundings. U.S. authorities had floral decorations put on the wall of an 8-foot by 7-foot interviewing room, while Abu Khattala was provided a mattress, prayer rug, sweatshirt, Koran and writing materials, and more shower and meal privileges.
U.S. prosecutors said Abu Khattala signed waivers in English and Arabic, writing in his own hand that read: “I understand from the conversation that I have the right to have an attorney present at any time but I agreed today 21 June 2014 to talk without an attorney present.”
Abu Khattala was charged by sealed complaint in July 2013 in the deaths at Benghazi. The U.S. government in January 2014 designated Abu Khattala a terrorist and Ansar al-Sharia, an armed militia he led that seeks to establish sharia law in Libya, a terrorist organization that allegedly carried out the attacks. He was indicted while being transported aboard the USS New York.
Abu Khattala has acknowledged leading an anti-Western militia but denied leading the attack in interviews before his apprehension. He said in some accounts that he arrived just as gunfire began and sought to direct traffic around the area and that he entered the compound at the end of the battle in what he said was a rescue effort.