Summary of Judge Cooper's Ruling Denying Abu Khatallah's Motion to Suppress

Nora Ellingsen
Thursday, August 24, 2017, 12:30 PM

On August 16th, U.S. District Judge Christopher R. Cooper of the District of Columbia issued an opinion denying Abu Khatallah’s Motion to Suppress statements he made to FBI agents while in custody.

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On August 16th, U.S. District Judge Christopher R. Cooper of the District of Columbia issued an opinion denying Abu Khatallah’s Motion to Suppress statements he made to FBI agents while in custody.

The ruling was a blow to the defendant, an alleged perpetrator of the 2012 Libya Embassy attack, whose trial is scheduled for late September. Khatallah is charged in connection with the killings of U.S. Ambassador to Libya Christopher Stevens and three other Americans at the U.S. diplomatic compound in Benghazi.

In June 2014, Khatallah was captured by the U.S. government and transported to the United States to face charges. While transiting the Atlantic Ocean aboard a Navy ship, the U.S. government interrogated Khatallah in a two-step process. First, U.S. intelligence agents questioned the detainee. Next, after a two-day break, FBI agents questioned Khatallah. Several years later, the defendant submitted a Motion to Suppress arguing that his statements to those interviewing agents were inadmissible on several grounds: (1) that his nearly two-week journey across the Atlantic Ocean by boat violated his right to prompt presentment before a magistrate under Federal Rule of Criminal Procedure 5(a); (2) that the government’s two-step interrogation process undermined the voluntariness of his Miranda waiver; (3) that his Miranda rights were otherwise not voluntarily and knowingly waived; (4) that he invoked his right to counsel; and (5) that his statements were not voluntarily given.

The court held an eight day evidentiary hearing on the matter in May before hearing oral argument on the motion in early June. In August, the court issued an opinion rejecting each of the defendant’s five arguments.

Factual Findings

Preparation for Abu Khatallah’s Arrest

The court’s opinion begins by providing background on the 2012 attack, including Khatallah’s role and personal history. Next, the court dives into the year-long planning process that led to the successful capture of the defendant.

The court describes an intelligence community that actively weighed the pros and cons of two operational plans: bringing Khatallah to the United States by plane or by boat.

In order to fly Khatallah back to the United States, officials knew they needed to submit a foreign transfer of custody (FTOC) request. In other words, they had to ask a third country if they could bring Khatallah into that country, prior to flying him back to the United States.

Immediately, U.S. officials questioned the viability of this option. Given the location of the capture operation, they would need permission from a country in Europe, North Africa, or the Middle East. Countries in Europe would be unlikely to grant the request given the potential application of the death penalty, while countries in North Africa or the Middle East would be hesitant to cooperate due to likely political backlash. In addition, since a third government might not keep a request confidential and leak the news to the Libyan government or a rebel group, U.S. officials would only be able to reach out to a third country after the capture.

Due to those concerns, U.S. officials settled on a hybrid approach. The FBI would arrest Khatallah and transport him to a naval vessel in international waters. For the next two to four days, while the vessel was transiting the Mediterranean Sea, intelligence agents would conduct non-Mirandized interrogations of Khatallah. Following the conclusion of those interviews, FBI agents would board the ship and read the subject his Miranda rights before interrogating him. During this period, the State Department would place phone calls to third countries about the possibility of an FTOC request. If a third country agreed to an FTOC request the ship would proceed to that country. If not, the ship would sail across the Atlantic to the United States.

The Capture Operation

Just after 10 p.m. on June 15, 2016, an eight person team captured Khatallah in a villa located on the coastline, just south of Benghazi. Khatallah had been led to the villa by an acquaintance, where he was swarmed by the capture team. After an 11 minute struggle, the team handcuffed Khatallah and told the detainee that he was in U.S. custody and would be taken to the United States. No one on the capture team was injured and a medical examination indicated that Khatallah did not suffer any non-superficial injuries. Khatallah was escorted the 500 meters to the shore, where a boat was waiting. He was then transported to a larger vessel which brought him to the USS New York.


Once aboard the New York, Abu Khatallah was interrogated according to a two-step process. First, intelligence officials interrogated Khatallah. Information concerning the intelligence interview is classified and was excluded from the court’s opinion.

While the intelligence interviews were underway, the State Department, according to plan, considered dozens of countries for an FTOC request. Officials ultimately contacted one country—referred to as G-24 in the court’s opinion—and made an FTOC request. G-24, a North African country, was chosen for its political stability and history of cooperation with the U.S. on counterterrorism operations. However, G-24 denied the request.

The U.S. government continued with the plan for the New York to travel back to the United States. Unfortunately, due to engine problems, the trip back to the United States took about a day and a half longer than initially expected. The captain of the New York later testified that he was not instructed by anyone involved with the capture operation to slow the pace of the ship.

As the Navy ship traveled across the Atlantic, the intelligence team concluded their interview and the FBI interrogation team arrived on the New York on June 19, 2014. The teams had no contact at the time, and, according to testimony during the evidentiary hearings, have not had any contact to this day. Khatallah was moved to new living quarters and the interviews took place in a different room. Prior to the law enforcement interview, the FBI agents advised Khatallah of his Miranda rights, and read him an additional statement distinguishing themselves from his prior interview team, telling the defendant that they were “starting anew.” Khatallah waived his rights both verbally and in writing. The FBI continued to interview Khatallah for six days, advising the detainee of his Miranda rights at the beginning of each day.

On June 28, 2014, the day after his final interview, Abu Khatallah was arraigned before a Magistrate Judge in the District of Columbia. After moving to dismiss all accounts, arguing that the charge statutes could not apply to conduct outside the United States—a request that was denied—Khatallah moved to suppress the statements he made to FBI agents on board the New York.


The court addressed each of Khatallah’s five arguments, rejecting each one in turn.

Right to Prompt Presentment

Given “the extraordinary facts of this case” the court begins the lengthiest section of the discussion with a review of the history and general principles of the presentment requirement.

An arrestee’s right to prompt presentment dates back to common law, but was codified at the federal level by the mid-twentieth century—culminating in the Federal Rule of Criminal Procedure 5(a). The Supreme Court first addressed the issue in McNabb v. United States, a 1943 case discussing a small group of Tennessee mountaineers who were arrested on murder charges and interrogated for several days without being advised of their rights. The Supreme Court reversed the convictions, which relied heavily on confessions obtained during the prolonged questioning.

More than a decade later, the Supreme Court refined the presentment principle in Mallory v. United States. In that case, the court held that even a short delay of a few hours can violate an arrestee’s presentment rights if the delay was intentionally caused in order to interrogate the arrestee. The McNabb-Mallory rule, as it came to be known, rendered inadmissible confessions made during periods when prompt presentment was being violated. However, if the delay in presentment was reasonable, the statement would not be suppressed. Finally, the reasonableness of the delay turns on the cause, not the length, of the delay. For example, delay for the purpose of interrogation is inherently unreasonable.

Next, the court noted that the McNabb-Mallory principle also applies to overseas arrests. Federal courts have upheld long delays in presentment when dealing with overseas arrests—up to 19 days in one case. In particular, the court highlighted the D.C. Circuit’s ruling in United States v. Yunis, which applied the McNabb-Mallory rule to an overseas arrest that occurred after extensive planning. The D.C. Circuit held that the district court erred when it found the four-day delay to be unreasonable. In addition, the D.C. Circuit noted that, because the government had already obtained a warrant prior to arrest, there was no possibility that the government had delayed presentment to obtain a statement that would provide them with probable cause.

Finally, the court turned to the facts of the case at hand and the 13-day delay between Khatallah’s arrest and presentment. Khatallah argued that the government transported him on the New York to maximize interrogation time and never seriously considered other transportation options.

First, the court disagreed that the government failed to seriously consider other options. For a variety of reasons, FTOC requests are politically sensitive-matters, and the government used appropriate restraint in approaching partner nations.

Khatallah then introduced emails between the FBI and State Department as evidence both that the government didn’t enthusiastically pursue an FTOC and that the agency deliberately slowed the pace of the ship. But the court held that none of the emails “undermine the sincerity of the government’s efforts.”

The defendant also introduced an alternate operational plan—he claimed he should have been flown in a V-22 Osprey which could be refueled in mid-air, to an aircraft carrier in the region which did have planes that could fly trans-Atlantic. For a variety of reasons (including concerns about diverting resources from ongoing military operations and the fact that the nearest aircraft carrier was in the Arabian Gulf), the court held that Khatallah’s substitute plan would not have been feasible at the time.

Finally, reminding the parties that “the government is not required to take the fastest possible route to the courthouse—just a reasonable one” the court held that the decision to transport Khatallah by ship was reasonable and not motivated by a desire to prolong his interrogation. Because the delay survives the McNabb-Mallory test, Khatallah’s statements will not be suppressed.

However, the court was careful to add the caveat that “every case will be different” and the McNabb-Mallory test will is not a “‘stiff formula’ that mechanically permits a prolonged presentment when a defendant is apprehended overseas, or where the government’s justifications for delay are buoyed by national security or diplomatic concerns.’”

Miranda Waivers and the Two-Step Interrogation

Next, Khatallah argued that his Miranda waivers were undermined by the government’s interrogation process.

The government did not dispute that it used a two-step interrogation process: Khatallah was questioned in the intelligence interview without a Miranda warning. Later, FBI agents provided Khatallah with a Miranda warning prior to commencing the law enforcement interview. The concern in such a case is that, despite the Miranda warning, a detainee would be less likely to invoke his rights, having already confessed during the intelligence interview. In other words, the Miranda would not overcome the coercive nature of the initial interview.

The court turned to Missouri v. Seibert, a 2004 Supreme Court case which provides the lower courts two alternative tests to apply when confronting the issue of intelligence interview undermining a subsequent Miranda warning. The first approach, set forth in the plurality’s opinion, centers on effectiveness. The plurality offers several objective factors to consider when determining whether, under the specific circumstances of the case, the Miranda warnings would be effective. Those factors include “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.”

The second approach, outlined in Justice Kennedy’s concurrence, focused on the interviewer’s intent—i.e., whether the intelligence interview was conducted with the intent to undermine Miranda.

The Circuits are split on which test controls, and the D.C. Circuit has never ruled on the issue. In the current case, the court decided not to take a position on which test controls, but instead ruled that under either test Khatallah’s statements during the law enforcement are admissible.

The court first applied Justice Kennedy’s test and finds that the intelligence interviews were not intended to violate Miranda. In fact, they had a clear and distinct purpose: acquiring information and gathering intelligence to protect national security interests. The court goes on to emphasize the strict division between the intelligence and FBI interview teams. For example, the court noted, the FBI agents who conducted the law enforcement interviews were not involved in Khatallah’s capture, the FBI team wasn’t privy to information obtained during the intelligence interview, and the intelligence team left the New York before the law enforcement interviews started.

There was also a clear division in content between the two interviews. While the FBI interview focused on the Benghazi attack, the intelligence interviews focused on imminent and future terrorist threats. Finally, there was a two-day break between interviews and the FBI team communicated to Khatallah that they were beginning a new, distinct set of interviews.

Applying the Plurality Test, the court came to the same conclusion. Turning to the factors enumerated above, the court stressed significant break time between the two interviews, and the change in circumstances—more regular shower privileges for example. The second interviews could not be seen simply as a continuum given the FBI agent’s warnings to Khatallah and the change in personnel.

Knowing and Voluntary Miranda Waivers

Khatallah next argued that he did not voluntarily waive his Miranda rights. He argued that his treatment prior to the law enforcement interview—essentially, his abduction—renders his waiver involuntary.

Again, the court rejected his argument, pointing to the general circumstances surrounding the waiver. No party made threats or promises, Khatallah was not physically restrained, and he waived his rights to a team of unarmed FBI personnel. Furthermore, the detainee received humane treatment and waived his rights multiples times—once in writing and twice verbally.

The court also rejected the argument that the abuse Khatallah suffered while in Libyan detention would have led him to believe that in order to survive he needed to comply with the interrogators and waive his rights. That prior experience, the court reasoned, actually stood in stark contrast to his FBI interview, making it even more reasonable for him to want to invoke his Miranda rights. In other words, the humane treatment that he received at the hands of the U.S. government agents, would have signaled to the defendant that he was being detained by authorities who would not force him to waive his rights.

Finally, the court also held that Khatallah waived his rights knowingly and intelligently. Although the defendant pointed to his lack of familiarity with the U.S. legal system, the court noted that, prior to his capture, Khatallah had “given numerous interviews to Western media outlets, touching on topics such as civilian versus military courts.”

Invoking the Right to Counsel

Next, Khatallah argued that he invoked his right to counsel, notwithstanding his Miranda waiver.

At the beginning of the law enforcement interview, Khatallah waived affirmatively his Miranda rights. He then asked, “Is there an attorney here?” When the FBI agents informed him that no attorney was present, he stated that he wanted to continue to talk to FBI agents but also wanted to reserve his right to have an attorney in the future.

The court rejected Khatallah’s contention that by asking if an attorney were present he was invoking his right to counsel because he did not “unambiguously” invoke his right.

Voluntary Custodial Statements

Finally, the defendant argued that the statements he made to law enforcement were not voluntary and cannot be used against him at trial. The court reviewed the facts it previously explored when finding the Miranda waiver to be voluntary and ruled that his custodial statements were, in fact, voluntary.

Nora Ellingsen is a third-year student at Harvard Law School. Prior to graduate school, she spent five years working for the FBI's Counterterrorism Division. She graduated cum laude from Northwestern University with a B.A. in Psychology and Political Science.

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