WASHINGTON (CN) – Seven days of pretrial hearings wrapped Thursday in the government’s case against the suspected ringleader of the Sept. 11, 2012, attacks on a diplomatic outpost in Benghazi, Libya, that left four Americans dead, including Ambassador Christopher Stevens.
Now, U.S. District Judge Christopher Cooper – a 2014 Barack Obama appointee – must decide whether to suppress statements suspect Ahmed Abu Khatallah made to FBI agents during six days of interrogations aboard the USS New York.
After a year of planning, U.S. commandos nabbed Khatallah in the early morning hours of June 16, 2014, from a villa south of Benghazi. They hustled him – beaten, blindfolded and handcuffed – from land to the USS New York off the coast in the Mediterranean Sea.
The evidentiary hearings have focused on whether Khatallah voluntarily waived his right to an attorney as the FBI claims, or was coerced into doing so during the 13 days it took him to get from Libya to the United States.
The FBI did not read Khatallah his Miranda rights until a full six days after his capture, and after an inter-agency intelligence team had already interrogated him for four days.
His defense team says the government could have flown Khatallah to the United States for a speedy appearance before a judge, but intentionally brought him by ship so FBI agents could extensively interrogate him and extract as much information from him about the operation as possible.
FBI special agent Michael Clarke said Khatallah had walked him through his history of arrests and various stints in Libyan prisons between 1995 and 2010. Clarke asked Khatallah about other people involved in the attack on the U.S. Special Mission and CIA annex in Benghazi, and who led it.
Clarke said he also asked Khatallah about pre-planning activities, meetings after the attacks and what he was doing while events unfolded.
Khatallah's defense team says he did not fully understand the implications of talking to Clarke without an attorney, and did not fully appreciate the consequences of waiving his rights after Clarke mirandized him.
Defense witness Dr. Hawthorne Smith, director of New York University's Program for Survivors of Torture, testified Thursday that given Khatallah's history in Libyan prisons and living under a brutal dictator, he might have felt coerced into waiving his Miranda rights.
But U.S. Assistant Attorney Michael DiLorenzo took Smith to task on his testimony during cross-examination. Smith acknowledged he had not spoken to Khatallah, his family members or others who had contact with the suspect in reaching his conclusion.
Smith, a licensed psychologist, has worked extensively with torture survivors.
DiLorenzo suggested Khatallah is more sophisticated and savvy than his defense team has portrayed him, and that he understood what it meant to waive his right to an attorney.
Clarke and the linguist who translated for them both testified Khatallah willingly and repeatedly waived his right to a lawyer during the six days of FBI interrogation.
At no point did it appear to either of them that Khatallah did not understand that he was waiving his Miranda rights, nor did they coerce him, they said.
But Khatallah's defense team says the FBI – by design – did not make a lawyer available to their client on the ship. Khatallah had asked if a lawyer was present on the vessel, and repeatedly indicated on his waiver forms that he wanted to see an attorney as soon as one was available.
In testimony on Wednesday, FBI deputy assistant director of the agency's international operations division Bryan Paarmannn – who played a significant role in planning the capture operation – said "no" when defense attorney Eric Lewis with Washington-based Lewis, Baach, Kaufmann and Middlemiss asked if he ever considered having a lawyer on the ship.
At no time did the FBI discuss the impact of providing an attorney to Khatallah, Paarmann said.
Paarmann acknowledged the military could have flown an attorney to the ship, or arranged for one to appear via Skype.
He also noted a military lawyer should have been present on the ship. When Lewis asked if one was present, Paarmann responded: "Could've been."
The government says it tried but was unable to get a third-country transfer of custody of Khatallah, and that it was not possible to fly him out of Libya on a military aircraft because of unstable conditions on the ground.
Paarmann outlined extensive discussions he had about a third-country transfer, which he said was a top priority in the operation.
The FBI had considered asking 13 nations for permission to fly Khatallah out, but the Justice and State departments told Paarmann to stand down on those efforts the day after Khatallah's capture.
He did not challenge that order, he said.
After the Justice and State departments took over transfer efforts, they narrowed the list down to one unidentified country, which denied the U.S. request on June 19, 2014 – four days after Khatallah was brought aboard the ship.
Khatallah's trial is scheduled to begin Sept. 25.
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