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November 09, 2017

Federal Court Tries Suspect Caught in 2014, 9/11 Suspects Still Waiting at GTMO

By Sara Sirota

Last week in the federal court trial of Ahmed Abu Khattala, alleged mastermind of the 2012 Benghazi attacks, prosecutors questioned the FBI agent who interrogated him and the Arabic linguist who provided translations. The government chose to prosecute Khattala in a federal court, where more than 620 people have been convicted on terrorism charges since 9/11

A team of American security agents captured Khattala in Libya in June 2014, before transferring him to a Washington, D.C. federal court on the naval ship, USS New York. During his thirteen-day voyage to the United States, the High-Value Detainee Interrogation Group interrogated Khattala for intelligence gathering purposes. A “clean team” of FBI agents Michael Clarke and Justin O’Donnell then took over, with the help of Arabic linguist Mousa El-Chaer. Only statements Khattala made in this second phase are admissible.

On the stand, Clarke described how the FBI interrogators advised Khattala of his Miranda rights and read him an Advice of Rights form, phrase by phrase, first in English, then in Arabic, and paused to confirm he understood. Khattala then chose to waive these rights. The courtroom heated up, as the government and defense attorneys debated the admissibility of statements Khattala made after waiving his Miranda rights. In August 2017, Federal Judge Christopher Cooper rejected the argument that Khattala gave these statements involuntarily. Nevertheless, in court, Judge Cooper prohibited Clarke and El-Chaer from sharing some anti-American statements Khattala made, following strong objections by the defense.

Some critics have said the government should not grant alleged terrorists Miranda rights, arguing that they should be held as “enemy combatants” at the prison in Guantanamo and tried in military commissions. This argument is misguided for many reasons. As former Attorney General Eric Holder has noted, there is no evidence that Miranda warnings prevent the gathering of useful information. Indeed, former FBI agents who have interrogated terrorists have noted, “In our decades of working in law enforcement, including the years following 9/11, Miranda rights never interfered with our ability to obtain useful information or make prosecutable cases.” 

Also, federal courts exercise jurisdiction over a wide array of criminal offenses, whereas military commissions may only prosecute war crimes. The government filed eighteen separate charges against Khattala, including many offenses that a military commission would not have the jurisdiction to prosecute. Of the only eight convictions obtained in the Guantanamo military commissions, three were overturned because the convictions had been for material support for terrorism, which the D.C. Circuit held is not a war crime.

More than 400 people convicted of terrorism-related offenses currently sit in federal prisons, and none has ever escaped. As General Colin Powell said, “Our civilian courts have been throwing people in jail religiously. They have been very effective in putting terrorists in jail, whereas the military commissions and the activities of Guantanamo have not gotten up to speed to do that kind of thing.”

Khattala’s trial likely closes today, with closing arguments expected next week. Meanwhile, the five accused 9/11 plotters, whose case is before the Guantanamo military commissions, have been in the pretrial phase for over five years. Khattala's case—involving a crime that occurred more than a decade after the attacks on the Pentagon and World Trade Center—will likely be wrapped up before the 9/11 trial begins.