RUTHFULLY YOURS

In a terse submission to the federal district court in Washington, D.C., the Obama Justice Department has announced that it will not seek the death penalty against Ahmed Abu Khatallah. He is the only terrorist charged in the Benghazi massacre of September 11, 2012, in which U.S. ambassador J. Christopher Stevens and three other American officials were killed in an attack carried out by dozens of jihadists.

Government lawyers provided no explanation for this decision. If you are wondering whether politics played a role in it, you have good reason to be suspicious.

On the face of it, Khatallah is a textbook case for capital punishment. The Benghazi indictment alleges that he willfully and maliciously caused the death of Americans in a terrorist attack that he helped coordinate. The facts of his offense check several of the “aggravating factor” boxes in federal death-penalty law. There is, moreover, a national-security component, inherent not only in the Benghazi atrocity itself but in the perverse incentive that the government’s failure to seek an available death sentence would create for others considering mass-murder attacks against American installations overseas.

In addition, terrorists imprisoned by the United States after being prosecuted for successful attacks against America become iconic figures in the jihad. As long as they live, they can and do inspire more attacks, recruitment, and fundraising.

Thus, legal and national-security considerations militate in favor of seeking capital punishment. Remember, Mr. Stevens was the first U.S. ambassador killed in the line of duty since 1979. An attack on our ambassador and on sovereign American facilities abroad is an act of war against the United States. Since national security is the core responsibility of the federal government, there can be no federal offense more worthy of capital treatment.

We are talking about the Obama administration, though, so there are always political considerations. And when it comes to Benghazi, they always take precedence.

A criminal trial is an opportunity for a defendant to challenge the government’s version of events. It is not like a press conference or a congressional hearing, at which administration officials can get away with spin and stonewalling. Presided over by an independent judiciary applying rigorous rules of due process, criminal trials arm highly capable defense lawyers with copious discovery of the government’s files and legal avenues to demand further disclosures. And because of the life-and-death stakes of death-penalty litigation, federal law gives no one more ample opportunity to test the government’s story than a death-penalty defendant.

Unlike a normal trial, a death-penalty case is bifurcated. First comes the “guilt phase,” which is the familiar criminal trial, at which the defendant is found guilty or acquitted on the charges. Next, if the verdict is guilty, comes the “sentencing phase.” In it, the same jury decides whether the defendant should be put to death. (In a normal, non-capital criminal trial, the jury’s work is done when it reaches a verdict; the judge subsequently imposes sentence.)

If the government seeks the death penalty in a case, it changes the trial dramatically. In a normal case, the only real issue is whether the defendant is guilty of the offenses charged. In a death case, however, the question is not merely guilt; it is broadly about relative culpability: In the greater scheme of things, how responsible is the defendant for what has happened?

It is possible that during the guilt phase of Khatallah’s trial, the prosecution would be able to narrow the scope of the trial to Khatallah’s own actions on the night of the attacks. But if the government had sought the death penalty, Khatallah would have been entitled, during the sentencing phase, to attempt to show that he was just a minor player; that there are other, more culpable actors who are not even being prosecuted, much less subjected to the death penalty; that the government’s own missteps — its own support of jihadists — played a role.

That is, a death-penalty prosecution would call into question many aspects of Benghazi that the Obama administration has long sought to keep under wraps: how Obama-administration policy empowered the jihadists who carried out the attack; how those jihadists were linked to al-Qaeda, which the president was then ludicrously claiming to have defeated; how those jihadists attacked Western targets in Benghazi several times before September 11, 2012; how, despite that fact, the State Department led by Hillary Clinton reduced security at its Benghazi facility; how there has been no explanation why the State Department had a facility in Benghazi, one of the most dangerous places in the world for Americans; how there were American military assets in place that might have been able to rescue at least some of those killed and wounded in Benghazi, yet they were not used.

As pled in the Khatallah indictment, the Obama administration’s version of what happened in Benghazi is woefully incomplete and misleading. As I’ve previously explained:

In the indictment against Khatallah, the Justice Department alleges that nothing of consequence happened until the day of the Benghazi attack, when [Khatallah] 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 were 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.

This last point is worth emphasizing. We now know, thanks to the belated disclosure of Hillary Clinton’s e-mails, that even as she and the administration were fraudulently telling the American people that the attack was a video-inspired protest that spun out of control, she was frankly discussing with foreign government officials (and her daughter, Chelsea) that it was a terrorist attack involving al-Qaeda affiliated jihadists.

In a criminal trial — and especially in a death-penalty phase — there would be significant disclosure of communications between government officials during and after the attacks. In this case, it could become ever more embarrassingly clear that, for weeks, administration officials were knowingly telling the public things that were not true.

By opting not to seek the death penalty, the Justice Department is in a stronger position to argue to the court that the only narrow issue for the jury is whether Khatallah’s conduct makes him guilty of the specific charges in the indictment. Prosecutors have a far better chance of preventing the trial from becoming a free-wheeling inquiry into what happened in Benghazi, and why.

And now, if the administration could just get Khatallah to plead guilty to a count or two, maybe it could make the whole thing go away.

— Andrew C. McCarthy is as senior policy fellow at the National Review Institute and a contributing editor of National Review.