Ben Fishman is a Senior Fellow in The Washington Institute's Geduld Program on Arab Politics.
Articles & Testimony
Despite its less than definitive verdict, the trial of Ahmed Abu Khattala showed that federal prosecutors, the intelligence community, and the FBI have pursued the case with apolitical professionalism.
Leaving the courtroom after a long day of closing arguments in the recent trial of Ahmed Abu Khattala, I felt something all too rare these days—immense pride in our government. The accused ringleader of the Sept. 11, 2012, terrorist attacks against the U.S. mission and the CIA annex in Benghazi had faced a jury for seven weeks, as federal prosecutors detailed his involvement in the crimes. The trial was the culmination of work conducted by national security and criminal justice professionals serving across administrations who helped build a complicated case, even as their agencies faced increasing attacks by President Donald Trump. Thanks to these mostly anonymous officials, Abu Khattala now faces up to life in prison for terrorism charges.
The case was also personal. I had visited the U.S. mission in Benghazi twice while serving as the director for Libya at the National Security Council, the last time just six weeks before the facility was set aflame. I could picture the bedrooms that served as a "safe haven" before the building was set on fire. Even though Abu Khattala was found not guilty of 12 counts relating to the deaths of Ambassador Chris Stevens, Information Officer Sean Smith and former Navy SEALS Tyrone Woods and Glen Doherty, that should not detract from the extraordinary efforts involved to make the trial possible in the first place. It also should help bring some measure of closure to a shameful episode in which a tragedy that should have unified the nation was used and abused for political motives.
From almost the moment the attacks occurred, Benghazi became synonymous with scandal, phony conspiracy theories and allegations of a cover-up. At the time, President Barack Obama was seeking a second term, and the election was just two months away. Republicans pounced and accused the administration of deliberately avoiding calling it a terrorist attack to maintain the president's counterterrorism credentials after the successful raid that killed Osama bin Laden. Congress in turn launched multiple investigations, the most famous of which was conducted by the Select Committee on Benghazi, lasting over two years and well into Hillary Clinton's presidential campaign. Republican leaders admitted that the prolonged investigation was politically motivated. They uncovered Clinton's use of a private email server, not any misconduct, cover-up, negligence, or incompetence related to the Benghazi attacks.
Years earlier, the State Department's Internal Review Board produced its own report and acted to correct many of the security failures exposed by the Benghazi attacks. Further, the Obama administration adjusted its preparedness and military posture to better respond to diplomatic posts under threat, having had only limited options on the night of the assault in Libya.
But the only thing the American public saw was the constancy of congressional hearings. The basic functions and missions of the State Department, especially in dangerous environments, lacked a public champion.
It is through this lens that Secretary of State Rex Tillerson's corporate reorganization of the Department (i.e. budget slashing) should be viewed. Morale is low, officials in senior ranks of the Foreign Service are leaving in concerning numbers and new entrants are down. Tillerson met for just five minutes with the career officer handpicked after Benghazi to oversee security arrangements at specially designated high-threat diplomatic posts. He was then "pushed out," according to the New York Times, even though no major security incidents have transpired since Benghazi.
"America First" has superseded a long, bipartisan tradition of using diplomacy to spread American values and advance U.S. interests abroad, especially in the most dangerous environments. Secretary of Defense James Mattis said in 2013, when he commanded U.S. forces across the Middle East and Afghanistan, "If you don't fund the State Department fully, then I need to buy more ammunition ultimately." Unfortunately, Mattis no longer expresses that view openly. The devaluing of diplomacy traces back to the public perception and politicization of Benghazi.
Notwithstanding political distractions, dedicated professionals within the State Department, the intelligence community, the Pentagon, the Department of Justice and the FBI started pursuing the case against the perpetrators of the Benghazi attack immediately. Among their numerous hurdles was gaining access to the crime scenes.
After some delay, the FBI visited the site of the attack despite Libya's deteriorating security and political situation, and retrieved the mission's surveillance footage. Using that footage and testimony from the surviving State Department and CIA security officers who had been on site, the government reconstructed a timeline of the attack.
Abu Khattala himself appears at one point on video brandishing a firearm—a crime in itself in a federal facility. Less than two years later, while Libya was in the midst of a civil war, U.S. operators captured him in Benghazi in June 2014 and transported him on board a navy warship to the U.S., where he was formally charged in federal court.
The case against Abu Khattala was difficult to assemble. The government offered a range of witnesses, the reconstructed timeline of the attack, the surveillance footage, phone records, and identification of militants on the surveillance video by witnesses and Abu Khattala himself during his interrogation. To reinforce the accusation that Abu Khattala was actively involved in the conspiracy to attack the U.S. mission, the government asserted that he gave four different "stand down" orders to other militia leaders who may have prevented or intervened against his "hit squad's" assault.
But the defense challenged the quality of the video, the authenticity of the Libyan witnesses, one of whom was paid $7 million to facilitate Abu Khattala's capture, and the validity of the phone records connecting Abu Khattala to his associates. They presented enough reasonable doubt to the jury that he was acquitted of the most serious charges of conspiracy to attack U.S. facilities and, by doing so, causing the deaths of the four Americans.
"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," one juror told the Washington Post. That was evident by the overwrought closing rebuttal by one prosecutor, who approached Abu Khattala and pointed at him saying, "How dare you!" then turned back to jurors and reiterated "How dare he?!"
One issue the Abu Khattala verdict exposed is the need for additional cooperation between the intelligence community and the Justice Department in declassifying incriminating material in terrorism cases. "The Abu Khattala case was largely built on intelligence information, through the work of the intelligence community, identifying him as a prime suspect in Benghazi," Matt Olsen, former director of the National Counterterrorism Center, told The Cipher Brief in September.
One key piece of evidence present by the government was Abu Khattala's phone records that the prosecution used to demonstrate his activities leading up to and during the attack. But the defense pointed out that the phone records, as presented to the jury, were "just a piece of paper," with no markings from a phone company or any other identifiable source.
"We ultimately thought they were phone records," the juror told the Post. "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."
Clearly, if the prosecution had presented the records with a clearer indication of their origin, that might have strengthened their evidentiary value, and it might have been sufficient to establish Abu Khattala as a leading conspirator of the attacks.
The Justice Department now has a chance to absorb these lessons in the prosecution of another assailant who was captured in October, Mustafa al-Imam, who appears on the surveillance footage and was identified by Abu Khattala. The prosecutors surely will pursue the case with apolitical professionalism that will honor the fallen Americans in Benghazi five years ago. They will ignore Steve Bannon's campaign against the so-called "deep state" and President Trump's habitual attacks against the intelligence community and the FBI. They will do their jobs.
Ben Fishman is an associate fellow with The Washington Institute.