U.S. interrogation strategy gets scrutiny in Benghazi case

Ahmed Abu Khattala faced days of questioning aboard the ship from separate teams of American interrogators

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After a suspected militant was captured last year to face charges for the deadly 2012 attacks on Americans in Benghazi, Libya, he was brought to the U.S. aboard a Navy transport ship on a 13-day trip that his lawyers say could have taken 13 hours by plane.

Ahmed Abu Khattala faced days of questioning aboard the ship from separate teams of American interrogators, part of a process designed to obtain both national security intelligence and evidence usable in a criminal prosecution.

The Obama administration has turned to questioning in international waters as an alternative to past practices in which suspects were sent to the U.S. detention facility at Guantanamo Bay, Cuba, or secret CIA prisons.

The administration has used the interrogation strategy in a few recent terrorism investigations and prosecutions. Abu Khattala’s lawyers have signaled a challenge to the process, setting the stage for a rare court clash over a tactic that has angered civil liberties groups but is seen by the government as a vital tool in prosecuting suspected terrorists captured overseas.

“I think they view it as important to show that terrorists can be prosecuted in U.S. courts, and this is an attempt to find a compromise between using people they capture as intelligence assets and prosecuting them in U.S. courts,” said David Deitch, a former Justice Department terrorism prosecutor. “It’s a very hard balance to strike - and may not be possible.”

The process ordinarily begins with questioning from a specialized team of interrogators who collect intelligence that can inform government decisions, such as for drone strikes, but cannot be used in court. Then a team of FBI investigators starts from the beginning, advising the detainee of his rights, such as the right to remain silent, and gathering statements that prosecutors can present as evidence in a trial.

Some legal experts expect the hybrid interrogation technique to survive legal challenges. But defense lawyers are concerned that such prolonged detention goes against the government's obligation to promptly place a suspect before a judge.

Abu Khattala is facing charges in Washington in the September 2012 attack on the U.S. diplomatic mission in Benghazi that killed U.S. Ambassador Chris Stevens and three other Americans. Following his June 2014 capture in Libya by U.S. special forces, he was placed aboard a Navy ship that his lawyers say made its way to the U.S. as slowly as possible to allow maximum time for interrogation.

They say Abu Khattala was questioned for days by representatives from the High Value Detainee Interrogation Group, then by FBI agents.

The prosecution is likely to unfold as former Secretary of State Hillary Rodham Clinton pursues her Democratic presidential bid and as a special House committee seeks answers about the attack. Clinton is scheduled to testify before that committee in October.

Abu Khattala’s lawyers submitted court filings this month contending that the government held him “captive on a military ship - without the protection of and in spite of constitutional guarantees - for the explicit purpose of illegally interrogating him for almost two weeks.”

Federal prosecutors have yet to respond.

A similar approach was used in the case of Ahmed Abdulkadir Warsame, a Somali citizen accused of helping support and train al-Qaida-linked militants. He pleaded guilty soon after he arrived in the U.S. via Navy ship.

It also came into play in the case of Abu Anas al-Libi, once one of the FBI’s most wanted terror suspects. He was arrested in Libya in 2013 and brought to New York to face charges in the 1998 bombings of U.S. embassies in Kenya and Tanzania. His lawyers fought to keep his statements out of the case. Al-Libi died of complications from cancer before trial.

Matthew Waxman, a Columbia University law professor and former Defense Department adviser on detention issues, said in an email that while there’s limited court precedent, he thought most judges would generally back the two-phase interrogation and would be “reluctant to create practical barriers to criminal prosecution of such terrorism cases.” But he said each case relies on its own facts.