WASHINGTON (CN) – Federal prosecutors pushed a federal judge Monday to apply sentencing enhancements when determining the fate of Ahmed Abu Khatallah for his role in the 2012 Benghazi attacks.
Though a jury convicted Khatallah on four counts, 14 counts on which the Libyan national was acquitted included the most serious charges: the murder of Ambassador Christopher Stevens and three other Americans.
Khatallah was convicted only of conspiracy to provide material support to terrorists, providing material support to terrorists, property destruction, and using a semiautomatic weapon during a violent crime.
Prosecutors have said that the firearms offense alone should put Khatallah behind bars for life, and their presentence investigation report quotes a Libyan witness as identifying Khatallah as a commander of the two-wave attack, which targeted a U.S. diplomatic compound and a nearby CIA annex.
In defense of the report, U.S. District Judge Christopher Cooper heard testimony Monday from Michael Clarke, who was among the second team of FBI agents to interview Khatallah after his capture in Libya in 2014.
Identified only by the number 61, the witness told Clarke, according to Monday’s testimony, that Khatallah and two of his men assaulted him after he photographed Khatallah driving away from the compound in a truck after midnight.
Khatallah and his men then dragged the witness to a camp run by the Salafist-Jihadist militant organization Ansar al-Sharia, which originated in Tunisia and has an unaffiliated splinter group in Libya.
According to Clarke's recollection of his conversation with the witness, armed militia members were using the camp as a staging area for a second attack on the CIA annex the following morning.
Khatallah ordered the men there, Clarke said, to go search local hospitals and track down and kill anyone who fought against them at the diplomatic compound.
Clarke also said that Khatallah admitted during his interrogation of the witness that he and his men attacked the diplomatic compound to protect Islam’s prophet.
Before letting the witness go, Khatallah purportedly returned the man’s phone but made sure to delete first the picture of the truck that the witness had snapped. Clarke said the witness was able to recover it through a restore feature on his phone.
Public defender Mary Petras assailed the witness’s character Monday during cross-examination.
"It's fair to say that some parts of the story changed over time," Petras asked Clarke, noting that the Libyan initially denied being forced to go to an Ansar al-Sharia camp when questioned by another agent.
Clarke appeared indignant, however, as Petras suggested that the witness changed his story only after speaking with Clarke.
"No ma'am, I would never lead a witness like that," Clarke said. "That's ridiculous."
Petras noted that the witness also refused to testify under oath or come to the United States to testify during the trial.
Before learning Khatallah’s name from the FBI agent, Petras said the witness initially referred to him as Sheikh.
She said the witness also misidentified Khatallah on grainy surveillance footage from the compound the night of the attack. The man he identified as Khatallah was actually Khalid Naihum, a leader of Answer al-Sharia.
Prosecutors say the testimony from their unnamed witness is enough for the court to impose leadership and terrorism enhancements on Khatallah's sentence.
But the defense, which is pushing for a base sentence of 51 to 63 months, says such an enhancement could increase Khatallah’s term by 22 to 28 years, in violation of his Sixth Amendment rights.
Khatallah’s defense says this request does not reflect their client’s acquittals, that the government’s witness is unreliable, and his statements are pure hearsay.
“If the court applies the terrorism adjustment, Mr. Abu Khatallah’s case will present an example of a severe sentence that would be held substantively unreasonable but for the court’s finding that he had the requisite motivation for the terrorism adjustment to apply,” they said in a May 1 opposition brief.
Had the jury believed Khatallah helped coordinate the attack, the defense argued, they would have convicted him of the related charges.
“There is no evidence that Mr. Abu Khatallah exercised control over any participant in the offense with regard to the attack on the Mission after U.S. personnel evacuated,” the May 1 motion says.
Khatallah still maintains that he arrived at the compound only after the attack began, along with many other curious local bystanders, and helped direct traffic. He acknowledges being on the compound grounds but only after midnight when American staff had already evacuated to the nearby CIA annex.
The sentencing memorandum for Khatallah is due by June 20.
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