Efficiency of the Federal Court System in Trying Benghazi Suspect

I recently observed the third week of the trial for Ahmed Abu Khattala, and the defense team conducted their cross-examination of the prosecution’s witness.

Khattala is the alleged ringleader of the Benghazi attack that killed four Americans, including U.S. Ambassador J. Christopher Stevens. Captured in Libya in June 2014 and detained on board the USS New York for 13 days, Khattala is now being tried in federal court.

As the Washington Post reported today, a review of 23 major terrorism trials in federal courts found that the average time between indictment and conviction was 16.2. By contrast, the accused plotters of the 9/11 attacks are currently in their sixth year of pretrial hearings at the Guantanamo Bay military commissions. With Khattala’s trial predicted to last five or six weeks, we will no doubt have a verdict long before the 9/11 case even gets to trial.

One of the cornerstones to America’s federal court system and common law rule is the transparency of the process. As I watched Khattala’s defense team cross examine a high-ranking official of the Joint Security Operation of the Libyan security force in Benghazi at the time of the attack, I was struck by a stark difference from my observations of the Guantanamo military commissions.

In a federal court, proceedings are open to the public and anyone can walk in off the street and observe them. At Guantanamo, the only way for observers to attend proceedings is if they are nominated by an approved non-governmental organization (NGO), authorized by the government to attend, and then flown to the base. In federal court, lawyers have access to their clients for confidential meetings at any time, including by phone. At Guantanamo, phone calls from lawyers to their clients are prohibited and the government has been caught spying on attorney-client meetings. Indeed most recently, three defense team members for alleged USS Cole attacker Abd al-Rahim al-Nashiri resigned from the case, citing unlawful government interference and other classified misconduct.

The Khattala trial has also demonstrated the lengths the FBI can go to in assembling the evidence required for a federal court trial. In the aftermath of the attack, the FBI conducted an extensive investigation, recovering evidence from and taking numerous photographs of the CIA annex and special mission building where the fighting occurred.

As the government has done in the past, witnesses from other countries, like the Libyan witness whose cross examination I observed, have come to the United States to testify, with special approval from the Department of Justice and the National Security Council at the White House. The FBI’s lead Benghazi agent, Michael Clarke, had previously interviewed him in March 2015 in Hungary.

Khattala’s case not only affects the family members of the victims, but the entire country that lost a diplomat and American civilians abroad. Transparency, timely hearings, access to counsel, legally obtained evidence, and constitutional safeguards—that is what efficiency is, and what federal courts offer. It ensures that the United States complies with the rule of law and maintains the legitimacy of the court system—something the Guantanamo military commissions continue to struggle with after fifteen years.

By Saadia Khan