U.S. prosecutors overplayed appeals to jurors’ emotions and failed to prove that Ahmed Abu Khattala conspired to kill a U.S. ambassador and three other Americans in the 2012 attacks on U.S. facilities in Libya, according to a juror who convicted the militia leader last week on terrorism charges but not murder in the deaths in Benghazi.
The juror, a man who discussed deliberations after being contacted by The Post, said in an interview that the panel of 12 had doubts early on about some of the testimony from three Libyan informants who testified under pseudonyms that they saw or heard Abu Khattala take steps to plan, execute and claim responsibility for the attacks.
Over five days, jurors painstakingly pieced together a timeline of events, the juror said, trying to establish for themselves when Abu Khattala joined a plot by several militant groups that overran and burned a U.S. special diplomatic mission on the night of Sept. 11, 2012, and fired mortars on a nearby CIA base before dawn Sept. 12.
“We felt that the prosecution spent a lot of time on emotional appeals that kind of fell flat to us, when we already knew the gravity of the case,” according to the juror who spoke on condition he not be named because of worries about his safety. “But we were a little shocked that they didn’t kind of set up the timeline of events as much for us,” he said, including “the whereabouts of the actual defendant.”
Abu Khattala, 46, who led an extremist Islamist brigade and was captured by U.S. commandos and brought to trial in Washington, was convicted on four of 18 counts, including conspiracy and providing material support to terrorism, malicious destruction of property endangering others and using an AK-47 semiautomatic weapon in a crime of violence.
Jurors “took with a grain of salt” much of what the Libyan witnesses said — each were paid at least $200,000 in expenses and as much as $7 million by the U.S. government for their cooperation — “because we were aware that [they] did not necessarily have a great relationship with the defendant, or were actively working against him,” the juror said.
The three witnesses testified about what they said was Abu Khattala’s planning and intent, including that he asked one for armed vehicles to carry out the attacks; stockpiled weapons and kept mortar rounds and a shoulder-launched missile in his garage; and said in 2014 as he was being urged to take on bloodier operations that he previously had “intended then to kill everybody [all the Americans] there” at the Benghazi sites.
The identities of the jurors have not been made public by the court, and U.S. District Judge Christopher R. Cooper told potential jurors their answers in an unusually detailed, 28-page questionnaire used for jury selection, including biographical data, would not be released for security and privacy reasons. The Post identified several jurors through statements made in open court during jury selection.
The panel included two lawyers, an English professor, an epidemiologist, a manager of a nonprofit landscape design group, a stamp designer and a preschool teacher, among others.
Before the trial, Cooper was asked to rule on the use of statements to the FBI that Abu Khattala had made over nearly two weeks aboard a Navy ship after his capture.
Those statements were persuasive, the juror said.
Jurors credited the accounts in which investigators said Abu Khattala’s account put him at the diplomatic mission after the fires were lit that killed U.S. Ambassador J. Christopher Stevens and State Department information technology manager Sean Smith, and testimony and surveillance video showing Abu Khattala carrying an AK-47 at the compound after Americans evacuated, the juror said.
Abu Khattala was acquitted of murder and of actions resulting in the death of Stevens, the first U.S. ambassador to die at the hands of militants since 1979, and Smith, who both died of smoke inhalation after the mission villa containing their safe room was set on fire; and CIA security contractors Tyrone S. Woods and Glen Doherty, who died in a mortar strike on a CIA annex rooftop.
Abu Khattala faces at least 10 years and up to life in prison at sentencing early next year before Cooper.
The juror’s remarks came as the U.S. attorney’s office for the District, which prosecuted the case, is considering adding counts and preparing for the trial of a second Benghazi suspect, Mustafa al-Imam, who was captured by U.S. Special Forces on Oct. 29, brought to Washington and charged in a bare-bones indictment last month with conspiracy to support terrorism.
The juror’s account offers some insight into the split verdict.
Jurors were instructed that if they found Abu Khattala guilty of conspiracy and providing material support to terrorism, as they did, they could have convicted him of other charged crimes carried out by any co-conspirator if those acts were “a foreseeable consequence” of the initial plan.
Under the government’s theory, planning to drive the U.S. government out of Benghazi through violence could reasonably lead to the Americans’ deaths.
However, the jury explicitly found that the conspiracy Abu Khattala joined did not “result in death,” because they concluded he joined the attack at the site where the ambassador was after it was underway. His defense lawyers had argued that Abu Khattala went as a bystander to see what was happening at the diplomatic compound after gunfire, explosions and fire drew crowds in his home town.
The juror said the panel unanimously agreed that they could not link him to the second attack hours later at the CIA annex. And the jury agreed it could not know beyond a reasonable doubt what Abu Khattala discussed with the militia members in the first wave of attackers. Prosecutors had produced records of the timing of calls between several militia members and Khattala’s phone before, during and after the attacks but not of what was said in the calls.
“We came to the conclusion that he joined the conspiracy — that’s why we came to the decision [to convict on the counts that] we did — but it wasn’t clear, or distinct for us that he had joined early enough to this conspiracy that he had joined prior to the actual deaths,” the juror said.
“We ultimately thought they were phone records, but we just didn’t know where they came from, and the fact that he was being called a lot didn’t necessarily mean that he was orchestrating anything. But we also didn’t know. He could have been, he could not have been. Like I said, something that came up a lot was ‘beyond a reasonable doubt,’ ” the juror said.
The group took “a lot of polls,” but agreed unanimously to rule out charges dealing with the attack on the annex, the juror said.
The toughest debate, he said, was over whether to convict Abu Khattala of attempted murder against State Department diplomatic security agent Scott Wickland, who suffered smoke inhalation while guarding Stevens and Smith at the diplomatic compound. Wickland escaped the burning villa only to come under fire from militants later at the CIA annex.
The juror said, “we weren’t sure of the timeline” of when Khattala’s men may have participated in shooting at the annex and so did not find him guilty of the injuries to Strickland.
Correction: An earlier version of this post incorrectly suggested that Wickland was killed in the Benghazi attacks. He was injured but survived.