A federal judge late Tuesday denied requests by the man accused of leading the attacks in Benghazi, Libya, that killed four Americans in 2012 to be returned to Libya and spared the death penalty on murder charges because of what his defense called his unlawful seizure and interrogation by American authorities.
Libyan militant Ahmed Abu Khattala, 44, pleaded not guilty in Oct. 2014 to an 18-count indictment, including charges of murder, conspiracy and destroying a U.S. facility, in the Sept. 11, 2012, attacks that killed U.S. Ambassador J. Christopher Stevens and three others.
The attacks, dramatized in the recent Paramount Pictures film “13 Hours: The Secret Soldiers of Benghazi,” set in motion an ongoing U.S. investigation that led to Abu Khattala’s capture by U.S. Special Operations forces in Libya in a June 2014 raid.
Abu Khattala’s attorneys said his arrest and questioning for 13 days aboard a U.S. Navy ship without a lawyer violated his due process rights, Libya’s sovereignty under international law and a U.S. doctrine that limits the U.S. military’s role in law enforcement.
In a 20-page opinion released after hours Tuesday in Washington, U.S. District Judge Christopher R. Cooper of the District disagreed, using a variant of Abu Khattala’s name in U.S. government documents.
“Because the power of a court to try a person for a crime is not dependent on whether he was initially brought within the court’s jurisdiction by lawful means, the Court will deny Abu Khatallah’s motion for return to Libya,” Cooper wrote, “And because the Court lacks the authority to prescribe the sentence that the prosecution may seek, it must decline to order the government to forgo the death penalty.”
Cooper in December refused to dismiss most charges in the indictment that the defense claimed were overly broad, vague or improperly sought to charge Khattala with crimes that occurred overseas rather than in the United States.
Spokesmen for the U.S. Attorney’s Office and the Federal Defender’s Office of the District did not immediately respond to requests for comment.
In Tuesday’s opinion, Cooper did not rule on whether the government’s conduct “outrageously violated” his constitutional rights, the United Nations Charter, Hague Convention or the Posse Comitatus Act, which limits the role of the military in U.S. law enforcement.
Instead, he said that the proper remedy of any such violation would be exclusion of evidence obtained by unconstitutional means or criminal prosecution of violations of the posse comitatus doctrine. Cooper added that the international agreements impose obligations on countries, and do not confer rights on individuals enforceable by U.S. courts.
“Regardless of whether the government violated domestic or international law in apprehending Abu Khatallah and transporting him to the United States. . . divestiture of personal jurisdiction is not an appropriate remedy in this case,” Cooper wrote.
Cooper said the courts might rule differently if an extradition treaty were in place between the United States and Libya laying out the only way by which one country’ might seize the other’s national for prosecution.
Khattala’s lawyers challenged the blended military and civilian tactics adopted by the Obama administration to extract intelligence from terrorism suspects such as Abu Khattala while preserving the ability to try them in U.S. civilian courts.
Abu Khattala’s attorneys argued that U.S. authorities denied him a prompt appearance before a judge and failed for six days to notify him of his rights against self-incrimination to interrogate him for six days shipboard using a group of U.S. military and intelligence personnel as well as law enforcement officials. Information obtained by such efforts may further intelligence-gathering but cannot be admitted as evidence.
Then a second group — of FBI agents — told Abu Khattala he was under arrest and read him his Miranda rights. He requested a lawyer, but none was available for him, and he was interrogated under coercive conditions for seven more days, his attorneys said.
Cooper wrote, quoting from a 1988 opinion by the U.S. Circuit Court of Appeals for the D.C. Circuit, that said even if government conduct is “neither ‘picture perfect’ nor ‘a model for law enforcement behavior,” it did not rise to the required standard of torture or brutality to dismiss charges or order his return to Libya.
Instead, Cooper said Abu Khattala could ask the court later to suppress evidence gleaned from his arrest and questioning.
As for Abu Khattala’s posse comitatus claim, Cooper said it recalled the case of former Panamanian dictator Manuel Noriega, whose attempt to overturn his seizure on drug charges by a U.S. military invasion in 1989 authorized by then-President George H.W. Bush was rebuffed by the federal courts.
“It simply makes no difference whether Abu Khatallah was seized at the behest of a high-ranking official or on the whim of a few ‘rogue agents,’” Cooper wrote, a defendant “cannot defeat personal jurisdiction by asserting the illegality of the procurement of his presence.’”
Federal prosecutors have argued that no laws or treaties were violated and Abu Khattala’s rights were not abused.
No trial date has been set. A final decision by Attorney General Loretta E. Lynch whether to seek the death penalty is expected by early March.
The U.S. government in January 2014 designated Abu Khattala a terrorist. It alleges the Benghazi attacks were carried out by Libyan-based extremists, including members of Ansar Al-Sharia -- an armed militia that seeks to establish Sharia law in Libya -- and an extremist brigade that it absorbed, Ubaydah Ibn Al Jarrah, which Abu Khatalla commanded.