No one has pushed harder than Representative Jason Chaffetz (R., Utah) to get to the bottom of the Benghazi massacre. He has admirably fought to hold President Obama and the administration to account for their shocking derelictions of duty. Nevertheless, one can only be baffled by his tendentious reaction to news that the Justice Department has filed criminal charges under seal against some of the jihadists responsible for murdering U.S. ambassador Christopher Stevens and three other Americans.
Chaffetz says he is skeptical about what he describes as “the new information that the government suddenly has to file charges.” In the same Fox News interview (summarized on the Corner by NR’s Andrew Johnson), he further complains about the sealing of the charges, suggesting that they should have been filed publicly. The first claim seems to be unfounded and the second is frivolous.
News reports, including this one
from the New York Times
, indicate that charges have been filed against Ahmed Abu Khattala (said to be “a prominent militia leader in Benghazi”) and at least “some” of the “roughly a dozen others” suspected by the FBI of participating in the attack. The charges were sealed and we do not know when they were filed, only that they have been. So there is no basis to claim that the charges have “suddenly” been filed, or that they were triggered by “new information.”
Indeed, FBI agents have been on the ground in Libya since the massacre occurred nearly eleven months ago. It is true that their arrival in Benghazi was delayed for nearly three weeks, thanks to Obama-administration misrepresentations about the attacks that infuriated Libyan officials, who then denied the Bureau access to the bloody site. That is obviously why Chaffetz grouses that “those days and weeks right after” an event are “the most critical time of any investigation.” But even this is an overstatement: Yes, investigators always want immediate access to the crime scene, but the most critical breaks in investigations often happen weeks or months later, when important witnesses emerge. (Note that the most significant advance in Congress’s Benghazi investigation, by the committee on which Chaffetz sits, was the testimony of State Department official Gregory Hicks, who was in Tripoli, not Benghazi, on the night of the massacre.)
Even when agents get instant access to a crime scene and discover damning evidence, this may have little bearing on the timing of charges. That is usually controlled by tactical considerations — for example, if low-level figures are arrested before the main culprits are identified, the main culprits scatter and finding them becomes geometrically harder.
In this instance, the agents leading the Benghazi investigation are said to be frustrated that no arrests have been made. That strongly implies that they believe they have had a prosecutable case for a long time, and few things are as frustrating for FBI agents as a long delay in apprehending suspects after charges have been filed. That may or may not be the case here — again, we do not know when charges were filed — but unless Chaffetz knows more than he is letting on, he should not leap to the conclusion that, just because we have only recently learned that charges were filed, they were filed “suddenly.”
Chaffetz says that the main issue is whether the administration has made capturing or killing the Benghazi jihadists a “top priority.” He is right about that — but that makes his snarking over the filing of charges all the stranger. It is a commonplace — and has been in both Democratic and Republican administrations — to file criminal charges under seal against terrorists (as well as ordinary criminals) who may be the subject of extradition requests or even covert capture operations.
In fact, the failure to file charges would be a truer indication of unseriousness. Most countries will not even begin to entertain an extradition request unless charges have been filed. A capture in the absence of charges is certain to be condemned as a violation of international law. That is why, for example, the Justice Department filed charges in the mid 1990s against Osama bin Laden and Khalid Sheikh Mohammed — just like George H. W. Bush’s administration did when it snatched Manuel Noriega in Panama only after drug charges were filed. It is why the Obama administration has filed espionage charges against Edward Snowden. In the Fox interview, Chaffetz decried the administration’s inability to obtain sufficient cooperation from at least one country — he did not specify, but I assume he meant Tunisia — where one of the suspects was temporarily detained. Fair enough . . . but how is it credible to complain both about the failure to persuade a country to extradite a suspect and about the filing of charges, the sine qua non of extradition?
The Benghazi massacre was an act of war against the United States. Yet the Obama administration has palpably signaled its intention to treat the attack as an ordinary crime, fit merely for an FBI investigation and a civilian prosecution, not a military response involving either lethal force or a capture followed by indefinite detention and trial by military commission. One senses that this is what has Chaffetz outraged. On that, he could not be more right. Obama’s September 10 approach is the policy that emboldened our enemies and invited the 9/11 atrocities. (Even President Clinton, author of that wayward policy to which Obama would return us, had the sense to fire cruise missiles at al-Qaeda’s safe havens — however ineffectually — shortly after the terror network bombed our East African embassies in 1998.)
We should steadfastly object to that approach. But even more irresponsible than vesting our murderous enemies with all the constitutional due-process rights of American citizens would be to do nothing. The filing of a civilian criminal charge does not preclude the use of military force (see, e.g., bin Laden, KSM and Noriega, cited above). But it is a prudent and necessary thing to have in place in the likely event that a person we want to apprehend turns up in some country (e.g., any country in Europe) that will play ball with us only if charges have been filed.
Finally, Chaffetz’s objection to the sealing of the charges is specious. It is a matter of numbing routine for charges against people who are not yet in custody to be filed under seal — and to be unsealed and made public only after the person has been arrested. The purpose of an indictment or an arrest complaint is to inform the accused of the charges against him. Particularly in a conspiracy case, the information in the indictment or complaint often reveals to a defendant the strength of the government’s case, the state of the government’s knowledge about collaborators, and the identity of the government’s witnesses. Making that information public while the accused is still at large could encourage him to remain a fugitive, tip off his coconspirators, and enable them to kill witnesses and otherwise obstruct the investigation.
Is Chaffetz saying we should run the risk of prematurely identifying cooperating witnesses in a terrorism investigation against a jihadist network that has already killed Americans and demonstrated itself capable of projecting military force? Is he saying that, in the case of the Benghazi attack, we should publicly identify all participants known to the FBI, even though they have not been located yet, so that they can step up efforts to evade capture and the use of force? What is wrong with delaying the public revelation of charges until arrests have been made — the way it is done in most cases involving suspects who are at large?
The Obama administration’s handling of Benghazi — from the unprovoked, unauthorized Libya war that empowered jihadists; through the reckless diplomatic security lapses and dubious covert operations in Benghazi; and on to the disgraceful abandonment of Americans under attack and the subsequent cover-up — is an enormous scandal. Representative Chaffetz has been an especially effective force in exposing it. We need him to stay that way if the president and his underlings are to be held accountable. Intemperate outbursts against routine, sensible investigative steps will only undermine the cause.
— Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.