Sentencing Enhancements Will Apply to Benghazi Attacker

WASHINGTON (CN) – Ahmed Abu Khatallah was acquitted on charges that he directed the 2012 Benghazi attacks, but a federal judge found Wednesday that the Libyan must still face sentencing enhancements for lesser charges.

Convicted only participating in the U.S. Embassy attack, Khatallah argued that prosecutors showed no evidence that his crime involved an intent to retaliate against the U.S. government.

Finding otherwise Wednesday, U.S. District Judge Christopher Cooper pointed to a transcript of Khatallah’s interview with an FBI agent after his capture where he said the U.S. should stay out of Libya’s internal affairs, and called the United States “the cause of all the world’s problems.”

“Abu Khatallah is entitled to his political views, but those views are nonetheless evidence of why he joined a conspiracy to attack a U.S. facility,” the 37-page opinion says.

Cooper noted that he considered facts for which Khatallah was expressly acquitted by the jury, and that “a preponderance of the evidence [showed] that Abu Khatallah organized or led the agreed-to attack on the Mission.”

“This practice is controversial,” the judge wrote, “but courts have repeatedly upheld it as constitutional.”

Defense attorney Jeffrey Robinson with Lewis Baach did not return an email seeking comment on the opinion.

Convicted on only four of 18 counts, Khatallah was found not guilty of more serious charges that included the murder of Ambassador Christopher Stevens and three other Americans.

Stevens and U.S. Foreign Service officer Sean Smith perished in a fire during an attack at the U.S. diplomatic compound on Sept. 11, 2012, while CIA contractors Tyrone Woods and Glen Doherty were killed early the next morning in a separate mortar attack at a nearby CIA annex.

The jury specifically did not find beyond a reasonable doubt that the material-support that Khatallah was convicted of providing resulted in death.

Because of that, Khatallah argued that the base level offense for his convictions put forth by the government improperly incorporates guidelines for second-degree murder, for which he faces a maximum sentence of life imprisonment.

But Cooper said a preponderance of the evidence shows that Khatallah’s conduct did result in death.

Though Khatallah did not set the fires that killed Stevens and Smith, “it is more likely than not that he agreed with several other participants to launch an armed attack on the Mission, and the attack foreseeably resulted in deaths that furthered the ends of the conspiracy,” the opinion says.

None of the witnesses who testified at trial personally saw Khatallah at the diplomatic compound but several identified him on grainy surveillance video footage taken the night of the attacks. Others testified meanwhile that Khatallah helped plan the attack and acquired weapons beforehand.

That suggests Khatallah “understood the nature of the planned attack and that he participated well before he arrived on the scene on the night of the attack,” the opinion says.

Cooper also pointed to phone records showing that Khatallah communicated with the attack’s direct perpetrators before, during and after it happened.

“The phone calls are particularly inculpatory when paired with video evidence showing the individuals on the other end of each call actively participating in the attack,” the opinion says.

Such evidence, according to the opinion, indicates that Khatallah was involved in a conspiracy to set fires and use firearms to drive U.S. diplomatic staff out of buildings at the compound.

The U.S. Attorney’s Office, which prosecuted the case, declined to comment on Wednesday’s opinion. Khatallah will be sentenced on June 27 for conspiracy to provide material support to terrorists, providing material support to terrorists, property destruction, and using a semiautomatic weapon during a violent crime.

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