The trial of Ahmed Abu Khatallah, the first person to be publicly charged in connection with the 2012 Benghazi attacks, is becoming mired in discord, as the government and defense appear at odds over explosive intelligence that could put a dent in the government’s portrayal of Khatallah as the attack’s ringleader. The jury is presently deliberating.
Khatallah’s lawyers filed a written motion for a mistrial Tuesday, citing in part the government’s treatment of agreed-to documents known as “stipulations” that “were used as substitutes for classified evidence.” According to some of these files, the government has classified intelligence that al-Qaeda linked groups planned and executed the September 11, 2012, attacks at U.S. facilities in Benghazi, Libya, which left four Americans dead.
The attack on the CIA annex that occurred that night “was a very professional job that was not carried out by local fighters in Benghazi,” one document reads. The attack on the U.S. mission was also an “organized assault,” according to one document, and according to another document, that attack was planned by Farj Hassan Al-Shalabi, or Chalabi, who “was a long-time al Qaeda operative.”
“The attack was in response to the death of a senior AQ official (Al-Liby), and the attack of the brigade coincided with the outbreak of popular unrest in Libya over the “Innocents of Muslims” video,” the stipulation reads. It adds that members of the brigade that Al-Liby was associated with “were able to obtain secret documents from the mission.”
Another document says that the mission attack was “allegedly planned and executed” by an AQ-linked group known as the Al-Banini Group. Two of the stipulations also temper the involvement of Ansar al-Sharia-Benghazi in the attacks, a group the prosecution cited as one of those seen coordinating with Khatallah and his “hit squad.”
Some of the intelligence cited in the stipulations appears to undermine the government’s portrayal of Khatallah as a key planner of the attacks: one who helped stock up on weapons beforehand, issued “stand down” orders, ensured others did not interfere that night, and remained in touch with attackers on the scene via cell phone.
But in recent days, the question of how to interpret those stipulations has become muddled. Presiding U.S. District Judge Christopher Cooper had initially instructed jurors to “consider any stipulation of fact to be undisputed evidence.”
“It is frequent during a trial that, in order to move things along and to promote the efficiency of the trial, the parties will sometimes stipulate or agree to certain facts, and you should consider any stipulation of facts by the parties to be undisputed evidence in the case,” he told jurors in October.
During the trial’s final hours, however, the prosecution appeared to question the nature of the stipulations, referring to them as “words on pieces of paper.”
“Unlike what the defense attorney told you, you do not have to conclude that those words are true,” Assistant U.S. attorney Julieanne Himelstein told jurors. “You are the finders of fact.”
She also cautioned that the stipulations 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, they are words on a piece of paper,” she said. “You do not know the reliability of them whatsoever.”
As to the stipulations that identify other attackers, Himelstein said that the government is not obligated to identify “every single person” who participated in the attack, or to prove that each attacker is connected to the defendant.
“You know that they were all acting in concert,” she said. “There are other individuals there, and we embrace that. They’re all co-conspirators.”
Khatallah’s lawyers said in their mistrial motion that the government’s remarks about the stipulations “gutted [their] effectiveness” and “made them inadequate substitutes for the classified information.” Classification issues also prevented the defense from calling certain witnesses, and the stipulations “were supposed to be a tailored remedy” to that, the defense said.
In a case that does not involve classified information, the prosecution typically shares the source of exculpatory information with the defense. The defense can then explore that source itself. But because the Khatallah case deals with classified information, the government, instead of sharing the source of the information with the defense, agreed to the stipulations.
It is unclear whether, in signing the stipulations, the government agreed that the classified information summarized is itself true, or whether it is only true that the government “is in possession” of the information listed. A spokesperson for the D.C. U.S. attorney’s office did not comment.
In its mistrial motion filed Tuesday, the defense alleged that, in addition to throwing the stipulations into question, the government made “improper comments,” such as referring to “evidence that was never admitted at trial.”
That includes a remark made during the government’s closing argument that Khatallah was “speaking to another militia leader” about “trying to impress al-Qaeda.”
Khatallah’s lawyers said that that comment undermines the jury’s use of the stipulations, some of which mention al-Qaeda. A key reason that the defense wanted to present stipulations detailing al Qaeda’s role in the attacks was that “there was no testimony at trial linking Mr. Abu Khatallah to al-Qaeda.”
“With one misstatement, that calculus was abruptly shattered,” the mistrial motion reads. “The jury is now in a position to believe–with no evidentiary basis–that defendant was seeking to impress an organization that there is evidence, agreed by the defense and government, was intimately involved in the attacks.”
The defense has argued that Khatallah is a “soft target” that the government is blaming for the violence at the U.S. mission and annex. They maintain that he did not plan or lead the attacks.
“Why is Mr. Abu Khatallah the only defendant here?” lawyer Jeffrey Robinson said during the defense’s opening statement. “He’s sitting there because he was easy.”
