WASHINGTON (CN) — A federal judge ruled that allowing a videotaped pretrial deposition as evidence in the trial of the accused mastermind of the 2012 attack on a U.S. diplomatic compound in Benghazi, Libya, will not violate his Sixth Amendment right to confrontation.
Ahmed Abu Khatallah argued that the witness, a Libyan military commander using the pseudonym Khalid Abdullah and referred to as W-234 in the ruling, was not unavailable for trial.
Khatallah argued that the conditions the witness placed on his ability to travel to the U.S. — the end of the civil war — had been met, given a recent ceasefire in Libya.
But U.S. District Judge Christopher Cooper said Khatallah fundamentally misunderstood the standard governing unavailability.
“It is not the Court’s job to adjudicate whether, given current conditions in Libya, W-234 should attend trial," Cooper wrote in the Oct. 12 ruling. “Rather, where a witness cannot be compelled by legal process to attend trial, the only question is whether the proponent of the deposition has made reasonable, good-faith efforts to make him available.”
Cooper in March agreed with the prosecution that Abdullah would likely be unable to travel to the United States due to the lack of an extradition treaty with Libya.
Cooper noted then that Abdullah lives in eastern Libya, a dangerous part of the country still embroiled in civil war, and that militant groups in that region have threatened to kill people who cooperate with the United States.
Abdullah and members of his family had received specific threats and endured attacks due to his position as a military commander, Cooper found said.
He added that the prosecution made “repeated attempts” to get Abdullah to the United States for deposition, but the witness declined, citing security.
Since the U.S. government has no subpoena power over foreign nationals, Cooper concluded that that Abdullah was unavailable for trial.
Cooper waited to rule on Khatallah’s opposition to admission of the deposition until the prosecution sought to introduce it at trial, which it did last Thursday.
Prosecutors interviewed Abdullah in Cairo, Egypt on July 28. Cooper presided over the all-day deposition from Washington, with members of Khatallah’s defense team in Cairo and in the courtroom with Khatallah, who was able to view the proceedings.
Khatallah also had argued that he did not have an adequate opportunity to cross-examine Abdullah, but Cooper noted that his defense team was made aware of Abdullah’s real name, and conducted three hours of cross-examination. This included questioning Abdullah about the content of social media posts the defense believed demonstrated Abdullah’s bias.
Cooper said this satisfied the Supreme Court criteria for admission of prior testimony that satisfy the confrontation clause.
“The Court finds that the timing and circumstances of the deposition gave the defense ample opportunity to conduct a vigorous cross-examination — an opportunity that it did not squander,” Cooper wrote.
Khatallah argued that the government failed to timely disclose to his defense team “false testimony about how much time he spent discussing his testimony with the government.” Had the defense been given the opportunity to cross-examine Abdullah on this point, Khatallah said, it would have undercut the witness’s credibility.
Khatallah also argued that the government did not disclose the content of FBI memoranda with other Libyan witnesses, which he said prevented his defense from asking Abdullah about their content concerning other witnesses’ identification of Khatallah’s associates.
Cooper acknowledged that the government may have “run afoul” of the confrontation clause by failing to disclose that material prior to the deposition, but concluded that “the limited subject areas the defense has identified did not undercut its ability to conduct robust cross-examination.”
“Khatallah can call to the jury’s attention any discrepancy in W-234’s testimony regarding the time he spent preparing with the government,” the 8-page ruling states.
The Sept. 4, 2012, attack in Benghazi killed U.S. Ambassador Christopher Stevens and Foreign Service Officer Sean Smith. Congressional Republicans used it to attack then-Secretary of State Hillary Clinton for the next four years, saying that she should have been able to prevent it, or was covering up information about it. Another building in the compound, used by the CIA, also was attacked.