The Benghazi Attack Is Finally Being Properly Prosecuted

On the night of June 15, 2014, eight Americans—six Delta Force operators, an F.B.I. agent, and an Arabic translator—travelled in rubber boats across the Mediterranean and arrived on a beach in Benghazi, Libya. They hustled across the sand and snuck into a nearby safe house. Their plan was to lure and capture Ahmed Abu Khatallah, the alleged ringleader of the most politicized terrorist attack since 9/11.

Twenty-one months earlier, on September 11, 2012, Khatallah had, according to federal prosecutors, coördinated the assault on the American Consulate in Benghazi. Two State Department officials, including the U.S. Ambassador, Christopher Stevens, died in that attack, and two C.I.A. contractors were killed in a subsequent firefight at a nearby C.I.A. facility.

A day after the eight-man team beached on the coast, one of Khatallah’s associates unwittingly led Khatallah to the safe house. As soon as Khatallah stepped into the dark villa, several soldiers pounced on him. He tried to kick, punch, and bite his way free, without success. The F.B.I. agent present—who has been identified in court by only a surname, “Johnson”—brought Khatallah into a bathroom, where he covered the suspect’s eyes, plugged his ears, and stuffed a bit into his mouth. The team then hustled Khatallah across the beach, boarded its boats, and raced toward the U.S.S. New York, a twenty-five-thousand-ton* amphibious transport dock made, in part, with steel recovered from the World Trade Center towers, and waiting offshore.

The Benghazi attack has been thoroughly scrutinized. The Republican-led House of Representatives spent millions of dollars and held hearing after hearing on the matter during President Barack Obama’s second term. But the lawmakers leading the hearings seemed more focussed on Hillary Clinton and her colleagues—trying to find any missteps they made before, during, or after the attack that could be used for political purposes—than on the alleged perpetrators of the violence itself.

Meanwhile, the hunt for Khatallah was being pursued by operators and analysts from the C.I.A., Joint Special Operations Command, and the F.B.I. One of the biggest questions for them was what to do with Khatallah once they found him. Counterterrorism officials considered a drone strike or a lethal raid, a former military official told me, but President Obama and the Justice Department wanted to capture him alive and bring him to the United States to stand trial.

This was not a straightforward task. American officials did not have sufficient confidence in the Libyan police to coördinate with them for Khatallah’s arrest. And the F.B.I. wasn’t in a position to pursue Khatallah on its own. Moreover, the intelligence on Khatallah suggested that he could prove difficult to capture—he supposedly carried around a grenade like an explosive cyanide pill.

Officials hatched a hybrid plan: F.B.I. agents would accompany one of the military’s élite manhunting units on the mission for Khatallah. The agents would be present throughout the operation to preserve evidence, so that they, as law-enforcement officials, could later testify in civilian court.

This was a fairly radical concept. Plenty of terrorists had been indicted and tried in American civilian courts, but Khatallah would be the first known case of someone captured through a military mission, Mirandized by law-enforcement officials, and then tried in open court, before a jury. John Walker Lindh, the so-called American Taliban, was captured by military and intelligence officers in Afghanistan and charged in civilian court, but he pleaded guilty before going to trial. More typically, terrorists targeted during military raids have been either killed; detained in U.S.-run military prisons, such as Abu Ghraib; handed over, in the case of Iraq or Afghanistan, to local police or intelligence agencies; or, in the years immediately after 9/11, sent to Guantánamo Bay. Osama bin Laden was indicted by a federal court in 1998, three years before the September 11th attacks. But when American Navy seals finally confronted him in Pakistan, in 2011, they shot and killed him.

Donald Trump and Attorney General Jeff Sessions have been vocal critics of trying terrorists in civilian courtrooms. Trump described Obama’s stated desire to close Guantánamo as a “terrible decision,” and Sessions has called the military tribunals at Guantánamo the “perfect place” for terrorism trials.

After his capture, Khatallah was interrogated first by military and intelligence officials. Then, after five days, a “clean team” of law-enforcement officials took over. Michael Clarke, an F.B.I. agent, read Khatallah his Miranda rights and told him that he was entitled to an attorney. Khatallah asked if there was a lawyer on board. There was not.

Speaking through a translator, Khatallah gave Clarke a lengthy statement over the course of the thirteen-day trip across the Atlantic Ocean. In D.C. district court, Khatallah’s current attorney, Eric L. Lewis, has argued that his client’s “slow boat” extradition was unnecessarily drawn out. “The capture of Mr. Abu Khatallah was a spectacular logistical operation . . . [but] a legal failure,” Lewis said at a June hearing. He wanted Khatallah’s statement thrown out. The judge, Christopher Cooper, ruled against him.

Yet Cooper has set some limits to the proceedings. In the run-up to Khatallah’s trial, which is scheduled to begin on Monday, the judge decided that prosecutors would be unable to admit evidence purporting that Khatallah once told an associate that he was intending to kill Stevens’s replacement, too. Allowing such evidence, Cooper said, would heighten “prejudicial risk” and “do little to illuminate the formation and contours” of the actual 2012 attack. It seems, at long last, that someone is intent on paying attention to what actually occurred in Benghazi.

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I may disagree with Sessions on marijuana but we are on the same page here. The terrorists need to be held at Gitmo not in American jails.