Captured Libyan terrorism suspect Ahmed Abu Khattala may be brought to the United States aboard the Navy ship on which he is being held, U.S. officials said, a prospect that would probably extend the amount of time he can be interrogated by the FBI without being brought before a court.
Although the federal court where he is to be tried has not yet spoken on the issue, it could object to the relatively slow mode of transport, officials said. Abu Khattala is aboard the amphibious transport ship USS New York in the Mediterranean Sea.
The administration has said only that he will appear before the U.S. District Court in Washington “in the coming days.” Should the court want him here more expeditiously, he could be transferred off the ship and brought to this country by air.
FBI interrogators, probably acting in part under a public safety exception, have not yet informed Abu Khattala of his Miranda rights to silence and an attorney, according to several U.S. officials, who spoke on the condition of anonymity about intelligence and legal matters related to the case.
Questioning under the exception could go on for hours or days, legal experts said. But the longer the government relies on it, the greater risk that a judge may eventually prevent prosecutors from using some of his statements in criminal court.
That is a risk that the government may be willing to take to gather other intelligence, former government lawyers said, if law enforcement believes it already has enough evidence to make its case against Abu Khattala without information gleaned from a lengthy interrogation.
The absence of a formal indictment against him, experts said, also gives law enforcement additional leeway to investigate before presenting his case to a grand jury. A sealed criminal complaint filed in July charged him with three counts of involvement in the September 2012 attacks on U.S. diplomatic and CIA installations in Benghazi, Libya, that killed four Americans.
U.S. officials have said the joint military-FBI operation that apprehended Abu Khattala south of Benghazi late Sunday, Washington time, was months in the planning. Success was facilitated, a senior administration official said, by “a new opportunity that did not exist before.”
The official declined to specify the nature of the opportunity, but Libyan militia members and neighbors of Abu Khattala in Benghazi have said that while he normally was on the move and difficult to locate in recent weeks, he had returned unaccompanied to his home neighborhood south of the city on Sunday evening.
Apprehended inside a building, rather than at his home, as previously reported, Abu Khattala put up some initial resistance and sustained what officials called “minor” injuries while being taken into custody. The Pentagon has said there were no casualties during the operation.
Officials also strenuously denied that they had initially hoped to capture additional suspects in the Benghazi attacks at the same time. From the moment last weekend’s operation was launched after President Obama approved it Friday, “it was all about him,” another official said of Abu Khattala.
In the past, the administration has provided details of similarly successful military operations in which terrorism suspects were seized. But “what we don’t want to do is mess up” the opportunity to capture the other Benghazi suspects, the second official said. “That’s one of the reasons for not giving details” of the raid conducted by the Army’s Delta Force and FBI agents.
Attorney General Eric H. Holder Jr. said in a statement late Tuesday that Abu Khattala will be “promptly presented” before a federal judge in Washington and be given a lawyer, who most likely will be from the D.C. federal public defender’s office.
The international advocacy group Human Rights Watch praised the administration for choosing not to add another detainee to the U.S. military prison at Guantanamo Bay, Cuba, as some Republican lawmakers have suggested.
But a “prolonged lack of access to an attorney or to family members would raise concerns about Abu Khattala’s treatment,” the group said. The administration “will still need to make sure its detention and prosecution . . . are by the book.”
The “public safety” exception to the Miranda rights provided under the Fifth Amendment stems from a 1984 case in which the Supreme Court ruled that law enforcement can engage in limited unwarned interrogation — and still introduce the results as prosecution evidence — if law enforcement questions were “reasonably prompted by a concern for the public safety.”
A 2010 FBI memo to agents adopted a relatively broad reading of the exception that it said was justified “in light of the magnitude and complexity of the threat often posed by terrorist organizations.”
“The government is pushing that [public safety] concept further to the idea that he’s an international terrorist, and saying, ‘We need to know what kinds of terrorist activity he’s been engaged in and who his co-conspirators are,’ ” said J. Patrick Rowan, a former assistant attorney general for national security and prosecutor in the U.S. attorney’s office for the District.
“The law isn’t as settled as I’m sure the prosecutors would like it to be,” Rowan said, “but it’s a concept that [the Justice Department] is fully behind and wants to exploit to the maximum extent possible.”
National Security Council spokesman Caitlin Hayden, in comments earlier this week, declined to specify the nature of Abu Khattala’s debriefing, but noted that “as a general rule, we will always seek to elicit all the actionable intelligence and information we can from terrorist suspects taken into our custody.”
Suspects in past terrorism cases tried in Washington have been held at the D.C. jail. But attorneys with experience in such cases said Wednesday that Abu Khattala is more likely to be held in isolation under strict monitoring at a facility such as the Rappahannock Regional Jail in Stafford, Va., or at the Alexandria Detention Center, where al-Qaeda conspirator Zacarias Moussaoui was held during his trial at the U.S. District Court in Alexandria.
In the Abu Khattala case, the U.S. prosecution team will be led by Assistant U.S. Attorney Michael C. DiLorenzo, who won last year’s conviction of Julian Zapata Espinoza in the murder in Mexico of U.S. immigration agent Jaime Zapata.
This story has been updated to clarify a quotation, attributed to National Security Council spokesperson Caitlin Hayden, that Abu Khattala would be “debriefed for intelligence purposes.” The complete comment from Hayden, on July 17, was “As to whether Abu Khattalah will be debriefed for intelligence purposes, I can’t comment on the specifics, but as a general rule, we will always seek to elicit all the actionable intelligence and information we can from terrorist suspects taken into our custody.”
Adam Goldman contributed to this report.