In case you haven’t noticed, we are still fighting a war on terror. Young girls are being kidnapped, terrorists in the Middle East are killing Christians, and Islamist terrorists seem generally to be running amok. In the midst of this, we are getting ready to try one of the suspects in the attack on the American outpost in Benghazi.
Andrew McCarthy posted an article at National Review today about the indictment of Ahmed Abu Khatallah, the suspect arrested in connection with the attack in Benghazi. It seems that the indictment the Justice Department has created does not make sense when viewed in the context of who Ahmed Abu Khatallah is and what he did.
The article reports:
In big criminal cases — and there are none bigger than those involving terrorist attacks — indictments tend toward book length, written in a narrative style designed to cut through the legalese and explain what happened. See, if the prosecutor is ethically convinced that there is sufficient evidence to convict an accused terrorist, his duty is to plead the case as expansively as necessary to get that evidence admitted.
In terrorism cases, that has always meant fully describing the nature of the terrorist enterprise. Look at the Justice Department’s jihadist cases from the Nineties (see e.g., here). They explain the history of the international jihadist network; the different terrorist organizations and state sponsors it encompasses; the identity, status, and roles of the players; plus all of the different plots and attacks that knit the network together.
The idea is to frame the case in a way that completely and coherently relates it — making it easier for judges to admit controversial evidence and jurors to grasp the willfulness of the accused. That is why the most critical decision made by the prosecutor drafting a terrorism indictment is Count One — i.e., the first statutory offense alleged.
…It seems, however, that the Khatallah prosecution is following a different strategy.
Khatallah has been identified by the State Department as a “senior leader” of Ansar al-Sharia, one of the al-Qaeda-tied franchises in Libya. Yet there is no mention of Ansar al-Sharia in the indictment, much less of al-Qaeda or the Islamic-supremacist ideology that ties jihadist affiliates together. In fact, the indictment does not even accuse Khatallah of being a terrorist.
…In other words, the Justice Department is not alleging that Khatallah himself was a terrorist. It is saying that there were some elusive “terrorists” hanging around Benghazi, and Khatallah conspired to help the “terrorists” by contributing personnel — mainly, himself — to their machinations, knowing that these just might include preparation for a lethal attack on a U.S. facility.
Oh, and the duration of this conspiracy? It is alleged to have lasted about one day — i.e., from approximately sometime on September 11, 2012, to sometime after midnight September 12.
One day. In fact, maybe it was just a few hours.
…Instead, the indictment is written to portray a sudden, spontaneous eruption of violence, without much planning or warning, in which Khatallah — who knows . . . perhaps inspired by a video — abruptly joined a disgruntled group of protesters that turned out to include some shady terrorists motivated by . . . well, who can really say? All we know is the violence started without warning and, before you could scramble a fighter-jet or fuel up Air Force One for a Vegas campaign junket, it was all over.
There are a lot of downsides to giving enemy-combatant terrorists all the majesty of American due process. But at least it used to mean that, by the end, you’d have the truth, the whole truth, and nothing but the truth. Now, it’s starting to look like what you get on the Sunday shows.
It’s time for Eric Holder to go back to Chicago.