A lawyer for a Libyan man charged with being a ringleader of the deadly 2012 attack on U.S. facilities in Benghazi complained Friday that the government is turning over information about the attack in Freedom of Information Act lawsuits before providing it to the defense in the criminal case. Lawyer info.
The claim came at a court hearing in Washington on Friday for Libyan national Ahmed Abu Khatallah, who is facing a slew of terrorism and murder charges in connection with the assault that claimed the lives of four Americans, including U.S. Ambassador to Libya Christopher Stevens.
"We still are able to find on the internet documents related to Benghazi" that have not been produced to the defense, assistant federal defender Mary Petras told U.S. District Court Judge Christopher Cooper. She said the records had been turned over by the executive branch to groups like Judicial Watch or to Congress, while at least one U.S. government agency involved had yet to provide any information to the defense.
Petras did not name the agency or agencies involved, but most of the information made public so far has come from the State Department in a series of FOIA lawsuits now entangled in litigation over Hillary Clinton's use of a private email server during her four years as secretary of state.
Cooper indicated that Abu Khatallah's defense wasn't necessarily entitled to all information the government had on Benghazi, but the defense lawyer replied that some of the information the defense had yet to receive through official channels pertained to the investigation of the September 11, 2012 attack. She said the defense in the case--which carries the possibility of the death penalty--shouldn't have to file FOIA lawsuits to get information relevant to the prosecution.
Lawyer referral service
Assistant U.S. Attorney Mike DiLorenzo did not respond directly to Petras' complaint, but said the government has turned over large volumes of information to the defense, including about 8,500 pages of classified material and 16,000 pages of unclassified records.
The two sides may have a while to sort out the dispute. As a result of ongoing litigation over the use of classified information in the case and a process to determine whether the government will seek the death penalty, a trial before the mid-2016 appears unlikely. The defense has yet to make written or oral presentations to the Justice Department committee that recommends to the attorney general whether to seek capital punishment, DiLorenzo said.
"It's our intent to move quickly," the prosecutor added.
Abu Khatallah was in court for Friday's hearing, which lasted a little more than an hour. Looking thin and sporting a narrow white beard along with a green prison jumpsuit, the defendant listened intently to translation via a headset that he initially seemed not to know how to wear. He has been in U.S. custody since being seized from Libya in a U.S. military raid in June of 2014. The defense has filed a legal motion challenging the raid and seeking Abu Khatallah's return to Libya, but that was not argued Friday.
The bulk of Friday's hearing was devoted to three other defense motions to throw out some of the 18 charges. Cooper seemed skeptical of all the motions, but he also suggested the government was being too dismissive of one of the defense arguments: that Congress never made clear the intent to make it a crime to blow up U.S. facilities abroad.
"Congress knew how to do that," defense attorney Jeffrey Robinson said. The law in question was intended to protect federal buildings and university facilities under threat from domestic terrorists during the 1970s tumult over the Vietnam War and should not be read to apply overseas without a specific indication that Congress so intended.
DiLorenzo acknowledged that there was no indication the law was intended to apply abroad, but said it could be logically read to do so since so many U.S. government facilities are abroad.
The defense also argued that some of the charges were flawed because the diplomatic facility and a CIA-run annex in Benghazi were never formally approved by the Libyan government. Another motion asserts that the statute commonly referred to as a ban on material support of terrorism never defines what qualifies as terrorism.
Lawyer what they do
Prosecutor David Goodhand said the law doesn't require that the acts charged be terrorism as long as they're listed in the statute. "Material support of terrorism need not involve terrorism," he said.
Cooper did not rule immediately on any of the motions. Even if the defense prevails on all of those heard Friday, Abu Khatallah facing the potential of a life sentence or the death penalty. Robinson indicated that the defense was seeking to counter a prosecution effort to "load up" the indictment with charges not necessary to the case.