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David Wise: The Benghazi episode
June 26, 2014
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When Ahmed Abu Khatallah, accused of leading the attack on the US mission in Benghazi was seized by US special forces in Libya after midnight on  Monday, it raised a number of questions. Not the least being why it took 21 months to capture him.

The answer is more complex than it might first appear. There were essentially three major issues in play: the FBI and the Justice Department were determined to build a clean legal case against Khatallah that would stand up in public court; diplomatic and military factors complicated the timetable, and more than a half-dozen government agencies — some with their own specific concerns — had to coordinate in carrying out the secret mission.

US President Obama listens to a question during a visit to Pittsburgh. These agencies included the Pentagon’s Joint Special Operations Command, which runs the special forces, including the Navy’s SEALs and the Army Delta Force; the FBI, which gathered the legal evidence against Khatallah; the State Department, which had to prepare for the international legal issues; the Navy, which is bringing Khatallah back to the United States; the Justice Department, which will prosecute the captured suspect; the CIA, which provided intelligence support; the White House, where the president had to approve the operation, and other units of the government that target terrorists. All had “equities” in this covert action — bureaucratic-speak for a piece of the action.

The Obama White House was particularly eager to build a detailed legal case  against the suspect so that he could be tried in a US federal court and not sent to Guantanamo, where he would face a military tribunal. To build that case required months of investigation by the FBI in Libya. Though Khatallah was living openly in Benghazi for much of the time, and granting interviews to the press, he strongly denied he had led the attack on the US mission — although he admitted he joined in. But other witnesses said he was seen playing an active role.

A protester reacts as the US Consulate in Benghazi is seen in flames. The US ambassador to Libya, Christopher Stevens, was killed in the September 11, 2012 attack, as were Sean Smith, a State Department IT specialist, and Glen Doherty and Tyrone Woods, CIA contractors who had both served as Navy SEALs. The episode became a political firestorm, with Republicans accusing the Obama administration of misleading the public on the cause of the attack.

It was not until last July 15, 2013, that the Justice Department had gathered enough evidence to file a secret criminal complaint in US District Court in Washington, signed by Chief Judge Royce C. Lamberth. Khatallah was charged with three counts — murder of a person in an attack on a federal facility, providing material support to terrorists and using a firearm during a crime of violence.

“Until the underlying charges were filed in court,” one intelligence official, who asked to remain anonymous, said, “you could do nothing.”

The US government agencies may have been forced to wait as the investigation moved forward, under the radar, but Khatallah could continue living openly. Caitlin Hayden, a spokesperson for the National Security Council, in an email to Reuters, said the fact that reporters were able to interview Khatallah “does not establish that there are appropriate conditions for a US capture operation. Osama Bin Laden was interviewed multiple times by Western journalists even as he remained among the most wanted men the world.”

Hayden added: “There are diplomatic, intelligence, law enforcement and military considerations that factor into the timing of such a complex operation as the one responsible for the capture of Khatallah. Many of these considerations just don’t apply to a news interview.”

What her careful language masked was the intricate inter-agency coordination that led up to the FBI and the Justice Department filing the legal complaint and the operation moving into the planning stage.

Looking back, it is now easy to predict that Khatallah’s capture might have been delayed, or even derailed, by diplomatic fallout from a similar capture of a Libyan militant last October. In Tripoli, three months after Khatallah was secretly charged, Navy SEALs raided the seaside villa of Nazih Abdul-Hamed Al Ruqai, better known by his alias, Abu Anas Al Libi, who had been indicted in 2000 as a suspect in the 1998 bombings of the US embassies in Kenya and Tanzania. He had been the subject of a 15-year manhunt.

The Libyan government issued loud protests. Tripoli insisted that the Americans had invaded the country to kidnap one of its citizens. The State Department was unhappy the mission had created such public diplomatic tension, and so was the FBI, which wanted to move on the capture of Khatallah.

Member of the US military’s Special Forces smokes cigar while holding weapon as his unit leaves for mission at Forward Operating Base Joyce in Kunar province. Once the seizure of Al Libi became a public incident, it deprived the US military of the element of surprise in any future action involving Khatallah. The Pentagon then decided to wait until a better opportunity presented itself to go after Khatallah, who had grown far more careful about his movements in Benghazi after Al Libi’s capture.

Once the US government finally did act, on Sunday night, a Libyan foreign ministry spokesman denounced Khatallah’s kidnapping as a “regrettable infringement on Libya’s sovereignty.” That led Samantha Power, the US ambassador to the United Nations, to say in a letter to the UN Security Council that Khatallah was a “key figure” in the Benghazi attacks and “continued to plan further armed attacks against US persons.” The capture of Khatallah, Power argued, was done in accord with the United States’ “inherent right of self defence.”

US officials said the Monday morning raid was carried out by Navy SEALs, who reportedly arrived on the Libyan coast by fast boat, grabbed Khatallah near his seaside home and got out. The Army’s Delta Force commandos are said to have been waiting on land, in case they were needed. Both the Pentagon and the SEALs declined to comment or provide any details of the raid.

Although it was reported that “two or three” FBI agents had joined the special forces in capturing Khatallah, according to intelligence sources there was only one FBI agent on the capture team — and he was there essentially to make sure that the legal evidence, and chain of custody of that evidence, was preserved.

Inevitably, questions have arisen about the treatment of Khatallah. He was whisked aboard the USS New York, a naval transport vessel built with seven and a half tons of steel from the World Trade Centre in her bow. The suspect will likely be interrogated subject to a 2009 order by President Barack Obama, which requires questioners to comply with the Geneva Conventions and forbids torture.

US Secretary of State Clinton reacts while testifying on the Benghazi attacks during Senate Foreign Relations Committee hearing in Washington. According to US intelligence officials, this will be an interrogation for intelligence purposes — to try to determine any future plots that Khatallah might be planning or may know about. Probably anything he says in that phase of the questioning could not be used against him in court.

Then, if past precedent is any guide, a “clean team” of criminal investigators would be brought in and at that point he would be given a Miranda warning, including the right to remain silent and to have an attorney. He would then be brought to Washington, formally indicted by a grand jury, and would stand trial.

His probable conviction would not, of course, end the political controversy over Benghazi. That roiling public debate continues, revived by the fact that Hillary Clinton, criticised by opponents for her handling of the issue while she was secretary of state, is now considered the frontrunner for the Democratic nomination for president in 2016.


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