Af­ter Abu Khat­tala case, U.S. sig­nals civil­ian tri­als for more ter­ror sus­pects

The Washington Post - - THE WORLD - BY SPENCER S. HSU spencer.hsu@wash­post.com

The con­vic­tion Tues­day of Libyan mili­tia leader Ahmed Abu Khat­tala on ter­ror­ism charges — but not mur­der — in the 2012 Beng­hazi at­tacks would not weaken ef­forts to try a sec­ond de­fen­dant in Wash­ing­ton or the po­ten­tial pros­e­cu­tion of fu­ture sus­pects, cur­rent and for­mer FBI and Jus­tice Depart­ment of­fi­cials said.

Car­los T. Fer­nan­dez, a for­mer se­nior FBI coun­tert­er­ror­ism of­fi­cial whose New York City-based agents in­ves­ti­gated the at­tacks in which four Amer­i­cans were killed, said the po­ten­tially lengthy pri­son sen­tence fac­ing Abu Khat­tala, the only per­son pros­e­cuted to date in the at­tacks, marked a vic­tory for in­ves­ti­ga­tors and pros­e­cu­tors.

“Tremen­dous creative work was done by the FBI and pros­e­cu­tors with the U.S. at­tor­ney’s of­fice of the Dis­trict to get th­ese charges, in an en­vi­ron­ment where no one was will­ing to take any risk,” Fer­nan­dez said. “This cer­tainly isn’t go­ing to stop any of their ef­forts.”

“I feel con­fi­dent they will con­tinue pur­su­ing each and ev­ery lead for as long as they pos­si­bly can,” he said, adding that in­ves­ti­ga­tors and pros­e­cu­tors “are limited only by the abil­ity of their lead­ers in terms of get­ting the job done.”

At least eight of Abu Khat­tala’s mili­tia mem­bers were caught on U.S. sur­veil­lance video at the two at­tack scenes — a U.S. diplo­matic com­pound and a nearby CIA an­nex — ac­cord­ing to ev­i­dence shown at the trial in Wash­ing­ton. Abu Khat­tala him­self iden­ti­fied three dozen in­di­vid­u­als to FBI in­ter­roga­tors, the court heard in tes­ti­mony. At the time that U.S. com­man­dos cap­tured him in Libya in 2014, U.S. of­fi­cials said more than a dozen oth­ers had been charged in a sealed com­plaint.

Fer­nan­dez’s com­ments came as Act­ing As­sis­tant At­tor­ney Gen­eral Dana Boente said af­ter Tues­day’s ver­dict in Wash­ing­ton that the Jus­tice Depart­ment “will not rest” in its pur­suit of oth­ers in­volved in the at­tacks that took place overnight from Sept. 11 to Sept. 12, 2012. Scores of mil­i­tants over­ran and set fire to the U.S. diplo­matic mis­sion and fired mor­tars at the nearby CIA fa­cil­ity, killing U.S. Am­bas­sador J. Christo­pher Stevens and fel­low Amer­i­cans Sean Smith, Ty­rone S. Woods and Glen Do­herty.

The White House set a tone sim­i­lar to Boente’s when it ap­proved fed­eral pros­e­cu­tion of a sec­ond Libyan sus­pect, Mustafa al-Imam, whose cap­ture Pres­i­dent Trump an­nounced Oct. 29 had been car­ried out “on my or­ders.” The pres­i­dent added: “Our mem­ory is deep and our reach is long, and we will not rest in our ef­forts to find and bring the per­pe­tra­tors of the heinous at­tacks in Beng­hazi to jus­tice.” Imam has pleaded not guilty. The Trump ad­min­is­tra­tion’s high-level en­dorse­ment of a sec­ond civil­ian trial and the hunt for sus­pects comes amid a seem­ing shift in Congress since the 2010 fed­eral trial of Ahmed Khal­fan Ghailani. The for­mer Guantanamo Bay de­tainee was ac­quit­ted of all but one count of con­spir­acy in the deaths of hundreds of peo­ple in the 1998 bomb­ings of two U.S. em­bassies in Kenya and Tan­za­nia.

Ghailani was im­pris­oned for life, but se­nior Repub­li­can law­mak­ers called for the aban­don­ment of civil­ian tri­als for for­eign ter­ror­ism sus­pects.

By com­par­i­son, sev­eral past con­gres­sional sup­port­ers of trial by mil­i­tary com­mis­sions de­clined to com­ment on the Imam case and the Abu Khat­tala ver­dict. That group of law­mak­ers in­cludes Sens. John McCain (R-Ariz.) and Lind­sey O. Gra­ham (R-S.C.), chair­man and mem­ber of the Se­nate Armed Ser­vices Com­mit­tee, re­spec­tively, and Rep. Peter T. King (R-N.Y.), a mem­ber of the House Home­land Se­cu­rity Com­mit­tee.

A Dis­trict jury de­lib­er­ated for five days be­fore find­ing Abu Khat­tala, 46, guilty of con­spir­acy and pro­vid­ing ma­te­rial sup­port to ter­ror­ism, ma­li­cious de­struc­tion of the U.S. spe­cial diplo­matic mis­sion in Beng­hazi and a firearms vi­o­la­tion, but ac­quit­ted him of sev­eral mur­der and at­tempt­ed­mur­der counts and of at­tack­ing the CIA an­nex.

Abu Khat­tala, who led an ex­trem­ist-Is­lamist bri­gade, faces at least 10 years and up to life in pri­son at sen­tenc­ing early next year be­fore U.S. Dis­trict Judge Christo­pher R. Cooper of Wash­ing­ton.

One rea­son the ac­quit­tals in the Abu Khat­tala case may not have been seized on by crit­ics of civil­ian pros­e­cu­tion of ter­ror­ism sus­pects is that Abu Khat­tala will still “al­most cer­tainly” face an ex­cep­tion­ally long sen­tence, and be­cause of the lack of a re­al­is­tic al­ter­na­tive, said Robert Ch­es­ney, a Univer­sity of Texas law pro­fes­sor who spe­cial­izes in na­tional se­cu­rity.

Mil­i­tary com­mis­sions have a worse track record, he said, not­ing new prob­lems just this month in a Guantanamo Bay case in­volv­ing de­tainee Abd al-Rahim alNashiri, who is ac­cused of mas­ter­mind­ing the deadly bomb­ing of the USS Cole in a Ye­meni har­bor in 2000.

It also is “far from clear,” Ch­es­ney added, that the gov­ern­ment can show that Beng­hazi sus­pects are el­i­gi­ble for de­ten­tion at Guantanamo Bay by virtue of be­ing “en­emy com­bat­ants” or mem­bers of groups with which the United States is at war, such as al-Qaeda.

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