U.S. Charges for Benghazi Attack Suspect Open U.S. Options

U.S. waits to see how Libya will cooperate in manhunt for alleged consulate attacker.

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U.S. authorities are waiting to see how Libya will cooperate in the manhunt for the alleged consulate attacker.

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News that the U.S. has formally charged one of the suspected Benghazi attackers will likely do little to intimidate the enemies of the West, but it does open the floodgates for a legal response.

Reports circulated Tuesday that the U.S. Justice Department has filed charges against Ahmed Khattalah, the leader of a violent Libyan militia believed to have carried out the attack on a U.S. diplomatic facility in Benghazi last September. His whereabouts are not publicly known, and it is unclear whether the Libyan government can detain him for prosecution.

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"It may seem like it's symbolism if you're sitting in the U.S.," says Amb. Daniel Benjamin, who until last year served as a coordinator for counterterrorism at the State Department. "However, it's an extremely important thing to have when you're talking to foreign partners and asking for their cooperation in apprehending and questioning such an individual."

"You can't pursue these goals without having paper on a person," says Benjamin, now the director of Dartmouth's Dickey Center for International Understanding.

It remains important for U.S. officials to have this kind of solid legal foundation, he says, whether dealing with the Libyan government or the governments of other countries where suspects may be hiding.

At the time Benjamin left the State Department eight months ago, the fledgling Libyan government was "very solicitious, very concerned, very positive" about partnering with the U.S. to find justice in the wake of the Benghazi attacks. But that country is still reeling from the 2011 Arab Spring protests that brought about the ouster and death of its autocratic leader, Col. Moammar Gadhafi.

"The issue with Libyans has always been less their inclination to help the U.S. and more their ability to do so," says Benjamin. "Gadhafi destroyed Libyan institutions over many decades, and they're struggling to build new ones."

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Tuesday's news is not the first time a Western power has attempted to seek justice from a suspected Libyan terrorist. That country initially refused to extradite Abdelbaset Ali Mohmed al-Megrahi, better known as the Lockerbie Bomber, in the 1990s after he was identified as one of the attackers of Pan Am Flight 103.

The U.S. and Libya – hesitant under Gadhafi to be seen bowing to the will of a superpower – finally reached a compromise by prosecuting al-Magrahi and his accomplice in a Netherlands court overseen by three Scottish judges.

Libya, like other countries such as Pakistan, might still want to appear to distance itself from U.S. demands to show neighbors and its own people that it acts independently, says Abdullahi An-Na'im, a professor of international and Muslim law at Emory University. The question remains whether the U.S. could prompt the extradition of Khattalah.

"Legally, yes. Politically, unlikely," says An-Na'im.

"Politically, it might be difficult for Libya to do that because it will be seen as succumbing to U.S. pressure and being subservient to the U.S.," he says. "It is unlikely issuing the charges may enable the U.S. to request the terrorist extradition or transition to stand trial in the U.S."

President Barack Obama has already faced difficulties attempting to prosecute foreign terrorists on U.S. soil. The White House abandoned its hopes of trying Khalid Sheikh Mohammed, the supposed mastermind of the Sept. 11 attacks, in New York City following outrage from locals and some politicians.

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Mohammed is currently facing pre-trial hearings in Guantanamo Bay, Cuba, where the president has vowed to send no further terrorism suspects.

The Libyan government is fragile and beset by factions, says An-Na'im, who is from neighboring Sudan. It also must contend with factions from al-Qaida, he says, which appear strong as ever following the U.S. decision to close 20 embassies and consulates amid a potential terrorist threat.