United States v. Khatallah

Decision Date16 August 2017
Docket NumberCase No. 14–cr–00141 (CRC)
Citation275 F.Supp.3d 32
Parties UNITED STATES of America v. Ahmed Salim Faraj ABU KHATALLAH, also known as "Ahmed Abu Khatallah," also known as "Ahmed Mukatallah" also known as "Ahmed Bukatallah" also known as "Sheik", Defendant.
CourtU.S. District Court — District of Columbia

David Brian Goodhand, John Crabb, Jr., Julieanne Himelstein, David Joseph Mudd, U.S. Attorney's office, Washington, DC, Michael C. DiLorenzo, Kenneth Clair Kohl, U.S. Attorney's office for The District of Columbia National Security Section, Washington, DC, Opher Shweiki, U.S. Attorney's office Violent Crimes & Narcotics Trafficking Section, Washington, DC, for United States of America.

Eric Leslie Lewis, Jeffrey D. Robinson, Waleed Elsayed Nassar, Lewis Baach Kaufmann Middlemiss PLLC, Washington, DC, Mary Manning Petras, Michelle M. Peterson, Federal Public Defender for The District of Columbia, Washington, DC, for Defendant.


CHRISTOPHER R. COOPER, United States District Judge

Table of Contents
I. Factual Findings...38

A. Attack on the U.S. Special Mission Compound in Benghazi, Libya....38

B. Abu Khatallah's Personal Background ...39

C. Preparation for Abu Khatallah's Arrest ...40

D. The Capture Operation....41

E. Intelligence Interrogations....45

F. FBI Interrogations....45

G. Foreign Transfer of Custody Request ...49

H. Engine Problems on the USS New York ...50

I. Procedural Background....51

II. Discussion ...52
A. Whether the Government Violated Abu Khatallah's Right to Prompt Presentment ...52

B. Whether Abu Khatallah's Miranda Waivers Were Undermined by a Two–Step Interrogation....60

C. Whether Abu Khatallah's Miranda Waivers Were Otherwise Knowing and Voluntary....66

D. Whether Abu Khatallah Invoked His Right to Counsel....68

E. Whether Abu Khatallah's Custodial Statements Were Voluntary....69

III. Conclusion....70

The United States has charged Ahmed Salim Faraj Abu Khatallah with the murder of the former United States Ambassador to Libya, J. Christopher Stevens, and three other U.S. government employees, along with related crimes stemming from the 2012 attack on a U.S. diplomatic compound in Benghazi, Libya. Nearly two years after the attack, U.S. special forces launched an operation to capture Abu Khatallah on the outskirts of Benghazi. The operation was a success. Abu Khatallah was brought on board a U.S. naval warship positioned off the Libyan coast, which then transported him to the United States approximately 5,000 miles away.

Abu Khatallah was repeatedly interrogated over the course of this thirteen-day journey. First, U.S. intelligence agents questioned him for several days mainly to gather information concerning his knowledge of potential terrorist activity in Libya and the surrounding region. FBI agents later boarded the ship, obtained verbal and written waivers of Abu Khatallah's Miranda rights, and conducted a series of interrogations focused on the attack.

Abu Khatallah now moves to suppress the Mirandized statements he gave to the FBI. The grounds for the motion are: (1) that his nearly two-week journey across the Atlantic Ocean by boat violated his right to prompt presentment before a magistrate under Federal Rule of Criminal Procedure 5(a) ; (2) that the Government's two-step interrogation process undermined the voluntariness of his Miranda waiver; (3) that his Miranda rights were otherwise not voluntarily and knowingly waived; (4) that he invoked his right to counsel; and (5) that his statements were not voluntarily given.

The Court held an eight-day evidentiary hearing at which it received testimony from Justice Department and State Department officials involved in the planning of the capture operation; several members of the capture team; intelligence and FBI agents who conducted the interrogations and their Arabic-language interpreters; the captain of the Navy ship that brought Abu Khatallah to the United States, the USS New York , and two of its crew members; and a defense expert who opined on the psychological effects of torture. Based on that testimony and the entire evidentiary record, and for the reasons that follow, the Court will deny Abu Khatallah's motion.

I. Factual Findings

A. Attack on the U.S. Special Mission Compound in Benghazi, Libya

During the civil war that erupted in Libya in early 2011, the rebel group seeking to overthrow Muammar Gaddafi, the Transitional National Council ("TNC"), established its base of operations in the city of Benghazi. On February 25, 2011, the U.S. Department of State evacuated American personnel from Libya and suspended its operations at the U.S. Embassy in Tripoli. Less than two months later, the State Department reestablished its presence in the country with the arrival in Benghazi of U.S. Special Envoy J. Christopher Stevens. According to the State Department's official report on the Benghazi attack, on June 21, 2011, Stevens moved into what would become a U.S. Special Mission compound. See Accountability Review Bd., U.S. Dep't of State, Benghazi Attack Report 14 (Unclassified) (2012), http://www.state.gov/documents/organization/202446.pdf [hereinafter "State Dep't Report"]. The compound was eventually comprised of "a diplomatic outpost, known as the U.S. Special Mission," where a contingent of State Department personnel worked, and a second facility, known as the "Annex," where a group of U.S. intelligence personnel was based. Indictment ¶¶ 5–6.

The United States officially recognized the TNC as Libya's governing authority the following month, on July 15, 2011, and Gaddafi was ousted from power only a few weeks later. The U.S. Embassy in Tripoli reopened with a temporary-duty staff in September 2011. Stevens continued as Special Envoy to the TNC in Benghazi until he left the country on November 17, 2011. The Special Envoy position was not filled after Stevens's departure, but he returned to Libya as Ambassador in May 2012, operating out of the U.S. Embassy in Tripoli. According to the State Department Report, "2012 saw an overall deterioration of the security environment in Benghazi, as highlighted by a series of security incidents involving the Special Mission, international organizations, non-governmental organizations ..., and third-country nationals and diplomats." Id. at 15; see also id. at 15–16.

Ambassador Stevens traveled to Benghazi to visit the Mission compound on September 10, 2012. Among others stationed at the compound and present during the Ambassador's visit were Information Management Officer Sean Patrick Smith, and Security Officers Tyrone Snowden Woods and Glen Anthony Doherty. See Indictment ¶ 16; State Dep't Report 18.

The Mission and Annex were attacked on September 11 and 12, 2012. In two phases beginning on the evening of September 11 and lasting into the morning of September 12, armed intruders deployed small-arms and machine-gun fire, rocket-propelled grenades, and mortars at both facilities. See State Dep't Report 4. Buildings on the compound burned, and the fire spread to the Mission building housing Ambassador Stevens during his stay. Ambassador Stevens, Smith, Woods, and Doherty were killed in the attacks.

B. Abu Khatallah's Personal Background

U.S. authorities came to suspect that Ahmed Salim Faraj Abu Khatallah played a key role in the attack. On July 15, 2013, a criminal complaint and arrest warrant were issued for him, and, as noted above, he was captured in Benghazi the following summer. According to statements made by Abu Khatallah to law enforcement agents following his capture, he was born on May 7, 1971, so was 43 years old at the time of his arrest and interrogation. Hr'g Tr. 604:1–2 (May 12, 2017 a.m.) (Testimony of Agent Clarke). He received nine years of formal schooling, ultimately earning a certification as a car mechanic. Id. at 604:3–7. He worked briefly as a mechanic for the Libyan government, before moving to construction and later opening his own automobile repair shop in Benghazi. Id. at 604:9–13. Between 1995 and 2010, Abu Khatallah was arrested, released, and rearrested multiple times, largely due to his association with political opponents of the Gaddafi regime, and he spent most of this period in various Libyan prisons. Id. at 604–07. Abu Khatallah described the conditions in Tripoli's Abu Salim prison as being particularly harsh. The prison was "very crowded" with "no air circulation," and the temperatures were often extremely hot or cold due to a lack of heat and air conditioning. Id. at 605:15–19. Abu Khatallah told agents that he "was beaten for the first few days" of his imprisonment there, but "after that he was never tortured or interrogated." Id. at 605:20–22. After his 2010 release from prison, Abu Khatallah returned to Benghazi, where he joined and ultimately led a revolutionary militia group aimed at overthrowing the Gaddafi regime. Id. at 607:4–12.

C. Preparation for Abu Khatallah's Arrest

The operation to capture Abu Khatallah followed nearly a year of planning across multiple U.S. government agencies. U.S. officials seriously considered two options in bringing Abu Khatallah to the United States after his capture: transport by aircraft, and transport by boat. The former option involved what is known as a foreign transfer-of-custody ("FTOC") request: Abu Khatallah would be taken to a third country and then flown across the Atlantic Ocean. See Hr'g Tr. 1187:4–11 (May 17, 2017 a.m.). The latter required transporting Abu Khatallah aboard the USS New York , a San Antonio –class amphibious warship. See Hr'g Tr. 948:5–17 (May 15, 2017 a.m.) (Testimony of USS New York Captain Christopher Brunette).

U.S. officials harbored serious doubts about the viability of the FTOC alternative for two reasons. First, the United States needed permission from a third country in order to conduct an FTOC, as it necessarily involved an intrusion upon the territorial sovereignty of another country. See Hr'g Tr. 1103:23–1104:9 (May 16, 2017 a.m.) (Testimony of Justin Siberell, Acting Coordinator for...

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