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Benghazi Suspect Isn’t Going Anywhere

WASHINGTON (CN) - A federal judge refused to sideline the prosecution of Libyan militant for the 2012 attack on the U.S. Consulate in Benghazi attack over concerns about his arrival in the court's jurisdiction.

U.S. military forces captured Ahmed Salim Faraj Abu Khatallah in Benghazi on June 15, 2014, almost one year after prosecutors issued a criminal complaint against him for his alleged involvement in the September 2012 attack on the U.S. Consulate in Libya that left four Americans dead, including Ambassador J. Christopher Stevens.

Thought to be about 43 years old at the time of his arrest, Abu Khatallah is described in his indictment as the leader of an Islamic extremist militia in Libya who provided material support and resources for the consulate attack.

Attorneys for Abu Khatallah meanwhile contend that his capture by the military and subsequent transport by the U.S. Navy violated of the Posse Comitatus Act, the United Nations Charter, the Hague Convention on the Law of War, and the due-process clause of the Fifth Amendment.

They urged U.S. District Judge Christopher Cooper to return Abu Khatallah to Libya on this basis, but the court refused on Tuesday to divest itself of jurisdiction.

"Because the power of a court to try a person for a crime is not dependent on whether he was initially brought within the court's jurisdiction by lawful means, the court will deny Abu Khatallah's motion for return to Libya," the Feb. 2 decision states.

Supreme Court precedent has "repeatedly reaffirmed that 'the power of a court to try a person for a crime is not impaired by the fact that he ha[s] been brought within the court's jurisdiction by reason of a 'forcible abduction'' in violation of federal law," Cooper wrote.

Likewise refusing to take the death penalty off the table, Cooper said "the court lacks the authority to prescribe the sentence that the prosecution may seek."

Attorneys for Abu Khatallah said the Libyan government would have demanded such relief if the U.S. government had legally arrested their client and sought extradition.

Noting that there was no way to know what the Libyan government would have requested, Cooper said the death penalty was at the prosecution's discretion.

"The court may not intrude on this exercise of prosecutorial discretion any more than it could order the government to seek a prison sentence of no more than five, ten, or twenty years when the charged statute allows for a life sentence," he wrote.

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