Who cares if Hillary Clinton is convicted of a crime? What we ought to care about is if Ahmed Abu Khatallah is convicted of a crime.
Khatallah is the only person charged thus far in the attack on a shadowy U.S. government compound in Benghazi on September 11, 2012. Dozens of jihadists participated in the attack, during which four Americans, including U.S. ambassador Christopher Stevens, were slain. Yet Khatallah has been singled out for prosecution. As I’ve previously detailed (here and here), the Obama Justice Department has filed an indictment that infuses evidence with politics: Trying to prove the terrorist conspiracy that actually occurred without refuting the Obama/Clinton fiction that the attack was a spontaneous protest ignited by an anti-Muslim Internet video.
That’s why there are worse jobs to have right now than defense counsel for a murderous jihadist.
Mrs. Clinton has spent the last few weeks learning that federal court is not the mainstream media. Because of Freedom of Information Act (FOIA) lawsuits brought by Judicial Watch, she and her top aides are finally being asked tough questions about conducting government business over a private communications system – a system that Clinton designed in order to hide her communications from public inspections, congressional inquiries, and judicial proceedings. We’ve thus learned that Team Clinton may have concealed government records, stored and transmitted classified information on private e-mail systems, and erased tens of thousands of government files.
If Mrs. Clinton thinks FOIA is a headache, wait until she sees what happens when a top government official’s reckless mass deletion of e-mails takes center stage in a terrorism prosecution of intense national interest. Federal criminal court is not the nightly news. There, mass deletion of files is not gently described as “emails a government official chose not to retain”; it is described as “destruction of evidence” and “obstruction of justice.”
In criminal cases, the government is required to disclose to the defense any information in its possession that may tend to prove the defendant not guilty of the charges. That includes information that calls into question the prosecution’s version of events, theory of guilt, and credibility.
In the indictment against Khatallah, the Justice Department alleges that nothing of consequence happened until the day of the Benghazi attack, when he is said to have complained aloud that “something” had to be done about “an American facility in Benghazi” that he believed was an illegal intelligence operation masquerading as a diplomatic post. Suddenly, at 9:45 that night, “twenty armed men,” including “close associates of Khatallah” (not identified by prosecutors), “violently breached” the facility. In the ensuing violence, the Americans were killed. Khatallah is alleged to have participated in the mayhem and to have prevented “emergency responders” from stopping it.
Of course, there is far more to the story than the Justice Department has elected to tell.
In the months preceding September 11, the “diplomatic facility” and other Western compounds in Benghazi had been targeted in terrorist bombings and threats. September 11 would be the eleventh anniversary of the killing of nearly 3,000 Americans by al-Qaeda, which had every incentive to mark that occasion with a significant attack. American forces, moreover, had recently killed Abu Yahya al-Libi, al-Qaeda’s top Libyan operative; that prompted Ayman al-Zawahiri, the terror network’s leader, to call on fellow jihadists to avenge al-Libi – an incitement issued just a day before the Benghazi attack.
So al-Qaeda was very much on the offensive. Obama, however, was on the campaign trail falsely assuring Americans that the terror network had been “decimated.” Obama’s decision to back Libyan “rebels” against Moammar Qaddafi had resulted in the arming of anti-American jihadists and the teetering of Libya on the brink of collapse. Obama, however, was on the campaign trail pronouncing his Libya policy a boon for regional stability.
As Obama next called for the ouster of Syrian dictator Bashar al-Assad and reports surfaced of covert American support for the Syrian “rebels,” arms used by jihadists in Libya were shipped to jihadists in Syria by way of Turkey. Was that why we needed a “diplomatic facility” with a CIA annex in Benghazi, which was a transit point for some of these weapons? Was that why Ambassador Stevens was in Benghazi meeting with Turkey’s ambassador on September 11 despite the obvious peril? The Obama administration refuses to say.
Throughout 2012, American personnel in Benghazi were under heightened terrorist threat. Despite their pleas for more protection, however, the State Department under Secretary Clinton actually reduced security.
Finally, when the September 11 siege occurred, the Obama administration knew from the first moments that it was a terrorist attack of the sort that any competent assessment of the red-blinking intelligence would have predicted. Obama and Hillary Clinton, however, colluded in an elaborate scheme to convince the public that the atrocity was not an al-Qaeda-connected terrorist attack but a spontaneous protest run amok, provoked by an anti-Muslim video.
Like all indicted defendants, Khatallah has the right to defend himself by putting the government’s story on trial. Specifically, he could contend that he is being scapegoated for an al-Qaeda plot that was longer in the making. I’d expect him to elaborate that the government singled him out – even though many others were involved – because he was a known critic of American policy who had the misfortune of being in the vicinity of the “diplomatic facility” that night. His prosecution for an allegedly spontaneous attack, he will claim, is an effort to deflect attention from the State Department’s failure to upgrade security, from Obama’s complicity in arming jihadists long before the Benghazi attack, and from the administration’s decision to downplay the role of al-Qaeda (which is not even mentioned in the indictment) while pretending the attack was caused by a video.
Mind you, a defense theory does not have to be true. The defendant has no burden to prove his innocence. To be admissible, it is enough for a defense theory simply to have the potential to cast doubt on the government’s version of events.
To press such a theory, Khatallah’s lawyer can be expected to argue that the government is hiding evidence that (a) the State Department knew of the continuing al-Qaeda threat but recklessly reduced security before September 11; (b) administration policies had empowered jihadists in Benghazi, who later carried out the attack for which Khatallah is being blamed; and (c) high administration officials, including Secretary Clinton and President Obama, concocted the video story during a tight presidential-election race to divert public attention from questions about who really carried out the Benghazi attack and what was really going on at the “diplomatic facility.”
Her criminal liability is quite beside the point. This is about judgment, credibility, and character.
Laying out this scenario, you can almost hear Khatallah’s lawyer saying, “Your Honor, we believe we are entitled to communications by the secretary of state with other officials. They would demonstrate the government’s knowledge of security lapses, the rising al-Qaeda threat, the fact that the September 11 operation was a terrorist attack, and the identities of attack participants whom the government has chosen not to charge while singling out my client. They would also show the connivance of top government officials in a scheme to convince the public this was a spontaneous attack caused by the video – a scheme that made it easy to frame my client because he happened to be on the scene that night, rather than the terrorist organization that planned it long before.”
A judge gets reversed if he fails to ensure that a defendant gets a fair trial – he cannot ignore defense lawyers the way the press ignores administration critics. On such a showing, then, a judge would be expected to order the prosecutors to search all of the government’s files, including communications by the State Department, and report back to the court about whether there is anything that tends to support the defense claims.
In this instance, the prosecutors would have to reply, “Your Honor, we wish we could but it seems the former secretary of state ran her own e-mail system outside government servers. It also turns out that she destroyed over 30,000 e-mails that she says were about yoga and her daughter’s wedding.”
As the judge’s head seemed to explode, the prosecutor would stammer on: “We’re afraid we can’t verify exactly how many e-mails she destroyed and exactly what they were about. You see, she hit ‘DELETE’ before reviewing them with State Department records custodians, as government guidelines require. And I know this may sound a bit, well, convenient, but it seems there are remarkably few existing e-mails that have anything to do with Benghazi. . . . And, no, we can’t explain why the secretary of state would have had more yoga e-mails than Benghazi e-mails.”
At that point, thanks to Hillary Clinton, the case of a terrorist allegedly responsible for the murder of Americans becomes a trial of whether the government is covering up embarrassing missteps, derelictions of duty, and efforts to deceive the public.
Prior to trial, judges almost never dismiss indictments based on allegations of government misconduct. Such motions are better addressed after the trial is over, when a non-speculative record of the misconduct and its effect on the truth-seeking process has been fully developed.
But there is no need to grapple with such a motion unless the defendant is first convicted. Khatallah’s trial – if the Obama administration goes through with it – will not be an easy one. Expect his lawyers to be given considerable leeway to claim egregious governmental derelictions of duty.
Good defense lawyers can go far on a little leeway. And most of them would tell you they’ve never had a windfall quite like 30,000 e-mails destroyed by the government official at the center of the case.
The Clinton camp is desperate to narrow the latest Hillary scandal to the question of whether she committed indictable classified-information offenses. Her criminal liability is quite beside the point. This is about judgment, credibility, and character.
A version of this piece previously appeared on National Review Online.