Naval Vessel Statement OK’d for Benghazi Attack Trial

The pod where the U.S. government says suspected Benghazi mastermind Ahmed Abu Khatallah rested comfortably during a 13-day journey to the United States aboard the USS New York, to face charges for the attack.

WASHINGTON (CN) – A federal judge refused Wednesday to suppress the FBI’s interview of a man it says masterminded the deadly 2012 attack on the U.S. diplomatic compound in Benghazi, Libya.

During eight days of evidentiary hearings in May, attorneys for Ahmed Abu Khatallah, 46, complained  that their client’s statement was taken in an improper setting: aboard the naval vessel USS New York.

By making the lengthy journey to the United States by sea, rather than flying Khatallah to the United States after his capture, attorneys say the government deliberately delayed his speedy presentment in court.

U.S. District Judge Christopher Cooper said in an August 16 ruling that the record does not support that conclusion.

“To the contrary, it demonstrates that transporting Abu Khatallah by air through an FTOC to a third country was an integral part of the government’s planning in the months leading up to Abu Khatallah’s capture,” the 59-page ruling states, abbreviating foreign transfer-of-country.

The government had argued in May that it considered transport alternatives, but none of them were logistically or diplomatically feasible at the time.

Cooper noted that in unusual cases, such as transporting a suspect from a foreign country, the government is not obligated to use the fastest route, only a reasonable one.

Khatallah’s attorneys had argued that the government could have ordered the closest aircraft carrier – the USS George H.W. Bush – to pick him up. However Cooper’s ruling cites testimony from the captain of the USS New York, who said it would not have been practical to call off operations the aircraft carrier was engaged in at the time in the Arabian Gulf just to pick up Khatallah.

“In this instance, it strikes the court as eminently reasonable for the government not to divert military resources being used elsewhere in order to expedite Abu Khatallah’s presentment,” the ruling states.

Khatallah’s attorneys, Eric Lewis and Jeffrey Robinson with the firm Lewis, Baach, Kaufman, Middlemiss, also argued that Khatallah had involuntarily talked to FBI agents during the nearly two-week-long journey stateside.

During that time, Khatallah was exposed to two separate rounds of interrogations, the first conducted by an intelligence team, which occurred before an FBI agent Mirandized him during the second round. Khatallah’s attorneys had argued that their client felt coerced into speaking to FBI agents because the “two-step technique” was intended to thwart his Miranda rights.

Citing a test from Supreme Court Justice Anthony Kennedy in Missouri v. Seibert, Cooper said the intelligence team had not interrogated Khatallah with the intent to secure a confession for later use, which would be prohibited.

“The intelligence team was acting not with a subjective intent to undermine Miranda or obtain incriminating evidence for use at trial, but  rather to acquire information essential to protect national security interests,” the ruling states.

Cooper agreed with the government’s position that Khatallah was sufficiently apprised of his Miranda rights given the difference in topics discussed, along with the two-day interval between the two rounds of interrogation and a verbal warning to Khatallah that his earlier statements would probably not be used against him.

Khatallah’s attorneys failed to sway the court about the government’s failure to Mirandize their client for six days after his capture. They said Khatallah had indicated several times on board the naval vessel that he wanted an attorney, but had agreed to talk to the FBI without one because an attorney was not present on the ship. Khatallah had made clear, they said, that he wanted an attorney as soon as one became available.

In May, FBI assistant director of the agency’s international operations division Bryan Paarmann, testified that the military could have flown an attorney to the ship or arranged for one to appear via Skype.

But Cooper ruled that Khatallah had not been coerced into waiving his Miranda rights.

“No threats or promises were made to induce the waivers … and Abu Khatallah was physically unrestrained before, during, and after each waiver was made,” the ruling states.

Khatallah had been treated “humanely and courteously” Cooper wrote.

“He was given breaks every hour or two, and offered snacks and refreshments,” the ruling says. “The sheer number of times Abu Khatallah waived his Miranda rights — once in writing and twice verbally on each typical interview day — is further evidence of the waivers’ voluntariness.”

The U.S. charged Khatallah with the murders of U.S. Ambassador Christopher Stevens and three other government employees, along with related crimes. His trial is scheduled to begin at the end of September in Washington.

Attorney Lewis declined to comment on the ruling. The U.S. Attorney’s Office for the District of Columbia, which is handling the case, also declined to comment on the pending litigation.

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