Rightly Charged in Federal Court, Not Guantanamo Military Commissions
June 18, 2014
The US is right to pursue its case against Abu Khatallah in federal court rather than ship him off to the legal dysfunction of Guantanamo Bay. But abiding by due process also means promptly bringing Abu Khatallah before a judge and allowing him a lawyer before questioning.
Laura Pitter, acting senior national security counsel

(Washington, DC) – The United States government should ensure that Ahmed Abu Khatallah, apprehended for his alleged role in the September 11, 2012 attack on the US consulate in Benghazi, Libya, is brought promptly before a judge and provided access to a lawyer.

“The US is right to pursue its case against Abu Khatallah in federal court rather than ship him off to the legal dysfunction of Guantanamo Bay,” said Laura Pitter, acting senior national security counsel at Human Rights Watch. “But abiding by due process also means promptly bringing Abu Khatallah before a judge and allowing him a lawyer before questioning.” 

The US announced on June 17, 2014, that its forces, without Libyan participation, had apprehended Abu Khatallah near Benghazi. Abu Khatallah, a building contractor from the el-Leithi neighborhood of Benghazi, allegedly led a small militia force in the area. He faces charges in federal district court for his alleged role in the attack on the US consulate in Benghazi on September 11, 2012, that killed four US citizens, including US Ambassador Christopher Stevens.

Media reports indicate that the operation to capture Khatallah was conducted jointly by the US military and the Federal Bureau of Investigation (FBI). The US has not disclosed the precise time and place or other details about the operation. It is unclear whether the Libyan government authorized the presence of US military and security forces in Libya or the operation to capture Abu Khatallah.

Media reports state that US forces are holding him on a US Navy ship in the Mediterranean and that he is en route to the US.

During a June 18 news conference, the Libyan interim government condemned the apprehension of Abu Khatallah by the US. The Libyan government said that Abu Khatallah should be tried in Libya, but that in the meantime he should be well-treated and granted his full due process rights. Libya’s justice minister, Salah al-Marghani, said at the news conference that Libya’s judicial authorities had previously issued an arrest warrant for Abu Khatallah, but that security conditions had not allowed for his arrest.  

The Obama administration should provide the legal basis for the capture and removal of Abu Khatallah from Libya, without the apparent involvement of Libyan authorities. Libya’s justice system is largely dysfunctional, and the government has been incapable of bringing thousands of criminal suspects into custody or providing those in detention with their basic due process rights. It is not evident that the Libyan authorities sought to apprehend Abu Khatallah or would be able to give him a fair trial.   

The US is obligated under international law, regardless of the manner in which Abu Khatallah was taken into custody, to provide him due process protections and a fair trial. He should have access to legal counsel of his choosing and be promptly brought before a judge to be able to contest the basis for his arrest. Prolonged lack of access to an attorney or to family members would raise concerns about Abu Khatallah’s treatment.

“Although the Obama administration has not done enough to end the unlawful detentions at Guantanamo, to its credit it has not added new prisoners there,” Pitter said. “But it will still need to make sure its detention and prosecution of Abu Khatallah are by the book.”