The Libyan militia leader accused of leading the 2012 Benghazi terrorist attack that killed a U. S. ambassador was captured in a midnight raid when an eight-man U.S. military capture team emerged from the dark in the one-bedroom villa where he had been lured, threw him to the ground, disarmed him and knocked him into submission, a team member testified Wednesday.
The new details about the seizing of Ahmed Abu Khattala, 46, came in the first day of a week-long hearing in federal court in Washington that is providing a rare glimpse into the U.S. criminal justice system’s recent handling of terrorism suspects at sea.
Abu Khattala, held in an Alexandria, Va., city jail, attended the hearing and listened alertly as interpreters translated proceedings that drew government observers including U.S. Attorney Channing D. Phillips of the District.
Prosecutors and defense attorneys have told a judge that they will detail a timeline of the treatment of Abu Khattala, who was interrogated during 13 days aboard a U.S. Navy vessel without a lawyer present. He was questioned in a two-step process after being seized in June 2014 by U.S. Special Operations forces south of Benghazi and transported by ship 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 Sept. 11, 2012, attacks. The charges include 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.
His lawyers allege that the U.S. policy of abducting him and then exposing him to two 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 engineered to prevent his access to a lawyer and left him unable to understand that he was signing away his legal protections.
The defense says none of Abu Khattala’s statements made over seven 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. On Wednesday, two FBI agents and an Army doctor assigned to the capture operation,told U.S. District Judge Christopher R. “Casey” Cooper that Abu Khattala was seized with the minimum force needed to protect their lives and his, that he sustained superficial injuries, was not mistreated and reported that no one harmed him after his initial capture.
The sole FBI agent on the capture team, identified in court only by a last name of Johnson, said he was wearing jeans, soccer shirt, track suit and a pistol, and was in place with the team a day ahead of time at the beachside villa, a one-time vacation area, where the target was led by a second man.
Johnsonsaid he first saw Abu Khattala after the agent entered the room, lying on the ground on his back, pinned by three U.S. service members in civilian clothes. Abu Khattala, who was carrying a pistol in a hip holster and was believed to also carry a grenade at times, suffered a one-inch gash to his forehead, bruises to his face and hands, and injuries to his left jaw and eye, the agent and doctor testified.
The apprehension took perhaps three to five minutes.
After a 500-meter walk to the shore, and during a two-hour boat ride to the USS New York amphibious transport vessel, Johnson said he heard the defendant say in Arabic, “Why me, God, why me?”
Johnson acknowledged to defense attorneys he did not include in his official FBI report his assertion on the witness stand that he told Abu Khattala that he was in U.S. government custody and was bound for the United States. Testimony Thursday will be held behind closed doors and will be from members of an intelligence interrogation team, one of whom also will testify using an alias.
Attorney Jeffrey D. Robinson pressed: Abu Khattala reacted violently because “he was grabbed in the dark” and attacked by armed men who did not say who they were or why they were there.
Johnson said yes, adding “I would have too.”
FBI Special Agent Robert D. Story said once onboard the USS New York, Abu Khattala was informed of his right to humane treatment under the Geneva Convention, and was seen by Army physician who testified under the pseudonym, Brad Smith, for security reasons.
Abu Khattala’s lawyers said they expect to question as many as 16 witnesses to pursue their contention that the multimillion dollar American operation 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.”
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.
Unlike Cooper, the judge in that case barred evidence of his treatment before the flight.
Defense lawyers said Abu Khattala was taken from Libya “shackled, hooded, gagged and deafened” with sound eliminating headphones to maximize his disorientation, styled after terrorism detainees at the U.S. military site at Guantanamo Bay, Cuba.
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.
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.” Several 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.”