Boss or Bystander?

It was the final fiery hour of the trial of Ahmed Abu Khatallah, charged with planning and executing the September 11, 2012, attacks on the U.S. mission and a nearby CIA annex in Benghazi, Libya. He sat a few feet away from Himelstein, looking unfazed by her statements.

The government’s case seemed straightforward when the trial began in early October: Here was a big-name terror suspect responsible for bloody attacks that left four Americans dead coming before a jury in a civilian court. But over the seven weeks of the trial, Khatallah’s lawyers argued that the evidence of his involvement was thin. They cast doubt on grainy video footage from the U.S. mission, the “Excel spreadsheet” phone records that the government said showed him orchestrating the violence, and the credibility of Libyan witnesses who were paid by the U.S. government. They also showed jurors documents that raised questions about whether al Qaeda-affiliated entities were actually behind the attacks.

The defense resonated with jurors, who after five days of deliberation found Khatallah guilty on only four of the 18 counts of the indictment and acquitted him of all the murder charges. Guilty of providing material support to terrorists, damaging the U.S. mission, and using and carrying a semi-automatic firearm, he still faces up to 60 years in prison.

Yet those who defended the Benghazi mission and annex that night are far from satisfied with the verdict or the civil trial itself.

“You don’t . . . give a foreign terrorist protection under the Constitution and also due process,” says Kris Paronto, who was part of the CIA annex security team. “You interrogate him, and then you eliminate him. Right now, the terrorists are laughing at us.”

Jurors heard from 30 witnesses, including a Libyan informant who was paid $7 million by the U.S. government to befriend Khatallah and lure him to his capture. They also heard vivid descriptions of the night of terror from survivors.

Prosecutors depicted Khatallah as a man with a “fanatical agenda,” who wanted Libya governed by sharia. They said he believed the United States, which he saw as “the cause of all the world’s problems,” was operating a spy base in Benghazi. This was the reason he planned the attacks that “resulted in the murders” of former Navy SEALs Tyrone S. Woods and Glen Doherty, Ambassador J. Christopher Stevens, and State Department information officer Sean Smith.

“You have not heard that the defendant was involved in that initial charge on the mission. You have not heard that he lit the match that killed two Americans. You have not heard that he fired the mortar,” assistant U.S. attorney Michael DiLorenzo said during closing arguments. “That does not matter,” he summed up, “because a person is equally guilty as an individual who lit the match or fired the mortar if they are a co-conspirator or if they are an aider or abettor.”

Government lawyers pointed to concurrent phone records and video footage that they said demonstrated constant communication between Khatallah and the first wave of attackers. At least eight members of his “armed militia,” Ubaydah bin Jarrah, participated in the attack on the U.S. mission. Prosecutors played surveillance footage of Khatallah himself on the compound carrying an AK-47 at around midnight, after “his men had already done the dirty work” and set fire to the buildings.

Khatallah’s lawyers countered that there was no evidence the defendant planned or participated in the attacks. A Benghazi local, he simply had gone to see about the commotion, having no idea the U.S. mission even existed. He went home afterward, his lawyers said, and was never present at the CIA annex, where Woods and Doherty were killed in a mortar attack. The defense described Khatallah as an “easy target” who was being set up to take the blame for the attacks and suggested that the government was using conspiracy law to tie him to violence he knew nothing about.

“They want you to hate him,” assistant federal defender Michelle Peterson told the jury. “They want you to hate him enough to disregard holes in their evidence.”

According to that evidence, Khatallah helped stock up on AK-47s and boxes of explosives “consistent with mortars” ahead of the attack; he issued orders to ensure the attacks went uninterrupted; and he set up a roadblock to prevent emergency responders from arriving at the burning mission.

“Ali,” the paid witness, testified that Khatallah told him he “would have killed all the Americans, each and every one of them,” had another militia leader not intervened. Khatallah, Ali said, also bragged “about being an expert in mortars” and “talked about training men,” suggesting a connection between the defendant and the precision mortar attack at the CIA annex.

Defense lawyer Peterson questioned the credibility of a witness like Ali, whom she described as the “$7 million man.” Much of the government’s case rests on the thin testimony of a few Libyans, she said. “This really is a house of cards. Without them, you don’t have the identifications of the people they say are co-conspirators. . . . You don’t get any of the pre-planning.”

The defense repeatedly raised concerns about Khatallah’s treatment after his capture in 2014. Apprehended by U.S. Special Forces, he was hauled aboard a Navy ship and interrogated by officials for intelligence information. It was days before he was read his rights and questioning by FBI agents for the eventual criminal trial began.

“Mr. Abu Khatallah had just been clunked over the head, abducted from his country, hoisted up like a slab of meat onto a Navy ship, blindfolded,” Peterson said. “Put in an interrogation room and a cell off and on every day for almost two weeks, not allowed to talk to anyone except the people interrogating him, woken up every two hours.” Implicit thoughout Khatallah’s lawyers’ arguments was that this is not how we treat criminal defendants.

One of the most contentious issues as the trial neared its close was a set of documents presented to the jurors in lieu of classified evidence. Some of these “stipulations” undercut the government’s portrayal of Khatallah as the attack’s ringleader and raised questions about the involvement of al Qaeda-affiliated entities in the events of September 11, 2012. “Some of the stipulations that you’re going to see . . . are going to refer to the people who were involved in this attack,” said Peterson. “Those stipulations are reasonable doubt in and of themselves.”

For the prosection, Himelstein described the stipulations as just “words on pieces of paper.” She warned that they are “internally inconsistent.” “One person it will say was the leader, and then it will say another person was the leader. I just tell you that to caution you,” she said. “You do not know the reliability of them whatsoever.” The judge, though, had instructed jurors to “consider any stipulation of fact to be undisputed evidence.”

The prosecution’s derision of the stipulations ignited controversy, and the defense filed for a mistrial shortly before Thanksgiving.

“The government is not here saying that there aren’t other participants, but because it’s this man who is on trial, let’s look at the evidence against this man,” DiLorenzo said during the government’s closing argument. “There may be other participants, and there clearly are, but they are acting in concert with his men.”

The defense, in closing, accused the prosecution of playing to the jury’s emotions rather than proving Khatallah’s culpability.

The prosecution fired back in its rebuttal, describing the four Americans that died as “sons.” Khatallah “hated, despised, could not stand, was so angry about the fact that there were American facilities in Benghazi,” said Himelstein. “His hit squad was searing through the United States mission, searing violently with rage—his rage against America, brandishing AK-47s, RPGs, and all sorts of weapons to destroy us, those innocent men who are on the compound!”

In the end, the jury didn’t accept the prosecution’s portrayal of Khatallah as the Benghazi attack’s mastermind.

Kris Paronto says that while Khatallah might have assisted in planning the attacks, the description of him as the ringleader was always just a “political ploy.” “This guy was never the mastermind. He was a middleman at best,” he says. The Obama administration wanted the controversy over the Benghazi attacks “to go to bed,” Paronto says. Their view was “Here, we got the guy, let’s put Benghazi to rest.”

“I don’t believe he was the mastermind or the ringleader,” says John Tiegen, another member of the CIA security team. “How many masterminds come out in public and say, ‘I’m the one who did it,’ that don’t have 100 guys around them to make sure they’re okay? . . . He’s just somebody who talked to CNN early on, and he got caught up in it, and the last administration just went for it,” he says, to show they were “holding somebody accountable for what happened.”

Tiegen condemns the decision to prosecute Khatallah in civilian court as a “political stunt.” “He didn’t do a criminal act, he did an enemy combatant attack,” Tiegen says. “It was a full-on frontal assault on a compound.”

During Khatallah’s trial, U.S. forces captured another suspect in connection with the Benghazi attacks, Mustafa al-Imam, who, according to President Trump, “will face justice in the United States.”

In a statement after the trial, acting assistant attorney general for national security Dana Boente vowed to track down all of the Benghazi attackers. “Abu Khatallah’s arrest and prosecution were critical steps in our efforts to identify and hold accountable those who were responsible for the terrorist attacks on our facilities in Benghazi,” said Boente. “Our work is not done.”

Jenna Lifhits is a staff writer at The Weekly Standard.