The capture of the alleged ringleader of the 2012 attacks on the U.S. compound in Benghazi has prompted wrangling over his legal fate and intensified concerns about instability in his fractious nation. In the U.S, lawmakers are divided down partisan lines over whether Ahmed Abu Khattala should face military or civilian justice. In Libya, government officials condemned the raid and insisted Khattala be returned. Kojo explores the legal fallout from the raid, and finds out what’s next for this North African nation in turmoil.


  • Benjamin Wittes Senior Fellow in Governance Studies, Brookings Institution; Editor-in-chief, Lawfare blog
  • Claudia Gazzini Senior Analyst, Libya, International Crisis Group


  • 13:06:38

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, women in conflict zones, how they're organizing for protection, security and economic survival. But first, it was a brazen nighttime raid with all the suspenseful elements of the movie "Zero Dark Thirty." There were months of preparation, meticulous mapping and raid simulations and rigorous training for commandos who would grab one of the world's most wanted men.

  • 13:07:17

    MR. KOJO NNAMDIIn the end, Sunday's capture of Ahmed Abu Khattala went off without a single shot fired. Khattala was the alleged mastermind behind the September 11, 2012 attack on the U.S. diplomatic outpost in Benghazi, Libya. And he's the first suspect from that deadly night to be apprehended. But his clandestine capture, like several before, has raised questions about Khattala's legal fate and the state of U.S. relations with a country that seems to be in chaos.

  • 13:07:48

    MR. KOJO NNAMDINow as the Navy ship holding Khattala makes its way to the U.S., legal wrangling over where he should be held and tried is heating up. So what happens next in this case and what's the diplomatic fallout for U.S. relations with Libya? Joining me in studio is Benjamin Wittes, senior fellow in governance studies at the Brookings Institution. He's also editor-in-chief of the Lawfare blog. Benjamin Wittes, good to see you in person. Thank you for joining us.

  • 13:08:18

    MR. BENJAMIN WITTESThanks for having me.

  • 13:08:19

    NNAMDIJoining us by phone from Italy is Claudia Gazzini, senior analyst for Libya with the International Crisis Group. Claudia Gazzini, thank you for joining us.

  • 13:08:31

    MS. CLAUDIA GAZZINIWell, thank you for having me.

  • 13:08:32

    NNAMDIIf you have questions or comments give us a call, 800-433-8850. Should suspects captured in the Benghazi attack be tried in civilian courts or in military courts? What's your view? You can also send email to or send us a tweet @kojoshow. Claudia, the capture over the weekend of Ahmed Abu Khattala in Benghazi had been planned for months came off without a shot being fired. But it was done completely outside the knowledge of the Libyan government. What does that say about U.S. Libya relations right now if the U.S. can do unilateral raids so easily?

  • 13:09:11

    GAZZINIWell, we don't know to what extent the government had knowledge of the operation. It is presumable to think that they didn't have factual knowledge of when this arrest or this raid would take place. But, I mean, one must bear in mind that Libyan authorities had been notified months ago that the U.S. intended to bring to justice those individuals whom it considered responsible for the U.S. -- for the attack against the U.S. consulate in Benghazi.

  • 13:09:42

    GAZZINISo it didn't come completely as a surprise that this would happen. I don't think that U.S. Libyan relations will be officially tarnished by this operation. We know that the government, of course, protested the operation. But some government circles might be relieved that this arrest took place. You know, Abu Khattala was not somebody whom the Libyan government loved particularly.

  • 13:10:09

    GAZZINIHe's somebody who's considered (word?) , a person who might be also behind several assassinations of security officials in Benghazi. But he was somebody whom simply the government and government forces could not arrest because he had a force of his own protecting him. So for some segments of Libyan society the fact that the U.S. went forward with this arrest unilaterally is a relief actually.

  • 13:10:34

    NNAMDIIs it because he had forces protecting him that he was able to move so easily around Libya for so long, living openly in Benghazi?

  • 13:10:44

    GAZZINIAbsolutely. I mean, he's not a lone rider in this. He has -- during the war against Gadhafi, he formed an armed group, a (word?) as you say in Arabic, that fought against Gadhafi forces. And these individuals, you know, continued to be loyal to him. And it's not only, you know, this small circle of gunmen. It's sort of a network of like-minded individuals who live in a certain area of Benghazi which is considered an Islamist stronghold where individuals like Abu Khattala lives, you know, without being confronted by anti-Islamist forces or even, you know, government or whatever remains of the Libyan police.

  • 13:11:32

    NNAMDIWell, Claudia, last year U.S. Special Forces performed a similar raid in Libya capturing Anas al-Libi, one of the suspected masterminds of the 1998 bombings of U.S. embassies in Nairobi and Dar es Salaam. There was a lot of speculation afterward that the U.S. had help from Libyans on the ground. In a country where so many groups seems to be vying for control, where does the U.S. find Libyans sympathetic to the U.S. cause?

  • 13:11:59

    GAZZINIWell, you have many Libyan groups and more broadly, you know, public opinion that is at the moment adamantly anti-Islamist, even probably more so than the U.S. forces. You must bear in mind that at -- you know, in this moment as we talk, in Benghazi there are military factions or factions of the so-called Libyan army who unilaterally decided to wage their own small war against Islamist leaders and Islamist groups in the city. So this U.S. operation doesn't come -- I mean, didn't take place in a vacuum. There are forces on the ground that are as active.

  • 13:12:44

    NNAMDIBen Wittes, Khattala is reportedly being held on the U.S.S. New York. We now have Republicans demanding he be sent to Guantanamo. And the Obama Administration insisting he go through the civilian justice system. Which is realistic?

  • 13:12:59

    WITTESWell, so this is -- first of all, speaking of not happening in a vacuum, this is a kind of Groundhog's Day. You know, every time we capture a major terrorist figure now...

  • 13:13:10

    NNAMDI...we live this day again, yes.

  • 13:13:11

    WITTES...we press replay and have the same argument where certain Republicans say he has to go to Guantanamo and the administration wants to send him to civilian court. And there's a question of, first of all, should he go to Guantanamo or to a civilian court? And secondly, should he be -- if he's going to be tried should he be tried in a military commission or in the civilian justice system?

  • 13:13:32

    NNAMDIThere you go.

  • 13:13:32

    WITTESYou know, in Abu Khattala's case, it's a fairly easy question. In some cases its question's more difficult. But in his case it's relatively easy because the administration regards the group that he headed as not covered by the authorization to use military force that governs the sort of broader war on terror and is the basis for holding people at Guantanamo.

  • 13:13:56

    WITTESSo the administration's position, as I understand it anyway, is that it's not really legally available to them to try him in a military commission or to hold him in military detention. And therefore, the only basis for his -- for moving forward with a case against him would be as a criminal matter in a U.S. civilian court. And that does seem to be what they're doing.

  • 13:14:19

    NNAMDILet us know what you think, 800-433-8850. Should suspects captured in the Benghazi attack be tried in civilian courts or, in your view, in military courts, 800-433-8850? You made an interesting point in your Lawfare blog amid the uproar about whether to send Khattala to Guantanamo or not. You said, sending detainees to military detention facilities comes down to a numbers issue. What do you mean?

  • 13:14:46

    WITTESWell, so, you know, Guantanamo was created because we captured a very large number of people. And the civilian justice system is perfectly adequate and very good actually at processing major captures when they come one, two, even ten at a time, you know. But if you capture 10,000 people in rapid succession and you don't do individualized investigations because you're capturing groups of soldiers basically, this is not something that the criminal justice system is good for.

  • 13:15:24

    WITTESAnd what gave rise to Guantanamo was the need to process large numbers of people very quickly without knowing a great deal about them individually. And so I -- the point I was trying to make in the blog post is really that the Republican insistence that when you capture a single individual about whom you presumably have a great deal of information and a great deal of evidence, that that person should go through that Guantanamo system is a little bit -- misses the point of why we have a Guantanamo and what it's good for and what it's not good for.

  • 13:16:00

    NNAMDIWe have several suspects in the 2012 Benghazi attack still at large. If investigators want to strike a bargain with Khattala or gather more information from him, where is that better done, civilian courts or a detention facility?

  • 13:16:17

    WITTESSo both are, you know, regimes in which interrogators have had success over the years in getting intelligence from people. There are significant advantages and some disadvantages to the criminal justice system in this regard. The major advantage is that the -- in the criminal justice system, you have this incredible leverage against a detainee or a suspect against whom you have a lot of evidence. And that's the ability to look him in the eye and say, you're going to spend the rest of your life in a very, very small box if you don't, you know, give me some reason to help you at this point.

  • 13:16:57

    WITTESAnd that does have a way of concentrating the mind. And it is one of the things about the criminal justice system that can make it a very powerful intelligence collection platform. On the other hand, there are these quirks of the criminal justice system that can frustrate that. One of them is, you know, as Senator Lindsey Graham and others keep pointing out, that you do start this process by advising people that they have the right to remain silent and they have a right to an attorney which will then -- who will then turn around and tell them to keep silent some of the time.

  • 13:17:29

    WITTESAnd so, you know, the administration has this guy on a boat and is delaying reading him his Miranda rights. But eventually, you know...

  • 13:17:37

    NNAMDIWhat are they allowed to do legally before reading him his Miranda rights?

  • 13:17:40

    WITTESWell, so there is an exception to Miranda, which of course generally requires that you be read your rights right on arrest. But there is this exception to Miranda when the public safety is involved. And the administration has chosen to read the so-called public safety exception quite broadly in counterterrorism cases. And I think reasonably so.

  • 13:18:03

    WITTESBut there is this -- you know, you do have this problem that remains which is some people will of course exercise those rights. And in a military detention setting you don't have that same coercive power of -- that the criminal justice system allows. But you also don't have that -- the exercise of those same Sixth Amendment and Fifth Amendment rights that can frustrate intelligence gathering.

  • 13:18:29

    NNAMDIOn to the telephones. Here is Ani in Fairfax, Va. Ani, you're on the air. Go ahead, please.

  • 13:18:35

    ANIHi. Thanks for having me on the show. My question was about, you know, the actual jurisdiction of what's going on. My understanding is that all these attacks were committed at a U.S. consulate on American soil technically, right. So shouldn't this proceed to criminal courts?

  • 13:18:53

    WITTESWell, so you can -- again, you can frame it either way, right. So the -- on a killing of a U.S. diplomat and killing actually of U.S. personnel, U.S. citizens abroad is a crime under U.S. law, whether or not it takes place in a consulate. But also there is jurisdiction. If you assume the military context, killing civilians is, you know, a war crime. And so you could imagine how somebody could create jurisdiction or establish jurisdiction under the Military Commissions Act to assuming that there was in fact coverage under the Military Commissions Act, which for the reasons we discussed earlier, I'm not sure is correct.

  • 13:19:43

    NNAMDIThank you very much for your call. Benjamin Wittes is a senior fellow in governance studies at the Brookings Institution and editor-in-chief of the Lawfare blog. Claudia Gazzini is senior analyst for Libya with the International Crisis Group.

  • 13:19:55

    NNAMDIClaudia, it seems like Libyan leadership is up for grabs right now. Late last month the Libyan parliament approved an Islamist-backed government led by the prime minister. But there's been massive unrest over that decision. And now the election commission has set up parliamentary elections next week to quell that unrest. Can you make the political situation a little clearer? Are we seeing a widespread backlash against Islamists in Libya?

  • 13:20:21

    GAZZINIYes. Indeed the Libyan political scene is rather complicated. At one point last month we had sort of three rival governments in Libya because we had the newly elected government of Ahmed Maiteeq who was Islamist-backed, a businessman who was voted in office in a very controversial way. And from day one there were criticisms by factions within the congress who said that he didn't actually get the legally required number of votes to give him this confidence.

  • 13:20:59

    GAZZINIAnd actually there was a supreme court ruling just a few days ago, a week ago that confirmed this and considered unconstitutional Ahmed Maiteeq's appointment. And as a result, Ahmed Maiteeq stepped down and his government was dissolved. So power returned to the caretaker government of Abdullah al-Thinni, who I underscore was a caretaker because the previous premiere, Ali Zeidan, was dismissed from office in an equally controversial vote of no confidence. Now Ali Zeidan is also appealing the vote of no confidence and he's claiming that he is still the legitimate leader of the country. But officially as of today Abdullah al-Thinni is the only sole -- you know, official prime minister.

  • 13:21:54

    GAZZINIAll of this underscores the fact that there are competing factions within the Libyan political establishment competing not only along Islamist and anti-Islamist lines but, you know, competing also on regional lines. The upcoming election for the parliament was something that was long overdue. And what happened when the Maiteeq -- when the controversy over the appointment of Maiteeq took place is that the election commission simply decided to schedule these elections earlier than expected.

  • 13:22:30

    GAZZINIIt was supposed to be later in the summer. But because there were so many military forces that were threatening to jump into the political scene and use force to get Maiteeq out, the election commission just established June 25th as Election Day. And I say that this election is long overdue because there's a lot of controversy over this congress, Libya's first post-Gadhafi congress that was elected in 2012. And to a certain extent a lot of the military turmoil we're seeing in the country is related to this congress which is now being accused of being too pro-Islamist.

  • 13:23:08

    GAZZINIYou know, certain members of parliament, members of the congress are accused of, you know, doing the bid of Islamist factions and those, you know, hindering the reconstruction of the Libyan state. So the early elections -- these elections come in a moment of military turmoil for the country but they actually could be the first step towards a solution for the country's political chaos.

  • 13:23:36

    NNAMDICan you give us an idea of how important Ahmed Abu Khattala was in the Ansar al Sharia? Will his capture be a big blow to the group and do we have any idea how many suspects from the 2012 attack on the U.S. compound remain at large at this point, Claudia.

  • 13:23:51

    GAZZINIRegarding Abu Khattala, you know, I'd like to quote another Islamist leader who was talking to me about Khattala. And he said, you know, Abu Khattala is tukseri (sp?) . Tukseri is a certain type of radical Islamist that believes that he has the right to declare another Muslim -- a non-Muslim a non real Muslim. And on the basis of that he has the right to kill other Muslims. So referring to Abu Khattala he said, Abu Khattala is a tukseri. And like any tukseri he doesn't agree with anybody else. So this means that when one is a tukseri three's no real command and control structure.

  • 13:24:34

    GAZZINIYou have other leaders like Abu Khattala who decide by themselves who is a legitimate Muslim and who isn't. And so, I mean, we can say that Ansar al-Sharia is not really a pyramid-structured organization. Ansar al-Shria has many different heads who sometimes come together and sometimes do their own thing. So Abu Khattala's capture certainly will hinder the organization but it certainly will not stop the retaliation that we're actually seeing these days taking place in eastern Libya by, you know, Islamists or Islamist-leaning or nationalist -- groups, you know, that refuse to bow down.

  • 13:25:29

    NNAMDII'm afraid we're running out of time very quickly. Ben Wittes, what has been the track record for recent trials of terror suspects in U.S. courts?

  • 13:25:36

    WITTESThere have been a lot of them over the last bunch of years, both under the previous administration and under the current administration. They have produced generally convictions and quite long sentences for a very large number of people. It's really been one of the -- for all the controversy around it it's really been one of the workhorses of American counterterrorism policy.

  • 13:26:00

    NNAMDIBenjamin Wittes is a senior fellow in governance studies at Brookings Institution. He's also editor-in-chief of the Lawfare blog. Claudia Gazzini is senior analyst for Libya with the International Crisis Group. Thank you both for joining us. We'll be taking a short break. When we come back, women in conflict zones, how they're organizing for protection, security and economic survival. I'm Kojo Nnamdi.

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