Politics & Policy

New Benghazi Indictment Still Doesn’t Mention Al-Qaeda

The DOJ produces another brazenly politicized set of charges.

On September 10, 2012, al-Qaeda’s emir, Ayman al-Zawahiri, issued a lengthy statement to his fellow jihadists in Libya. He called on them to avenge the American military’s killing of Abu Yahya al-Libi, the highest ranking al-Qaeda operative in that country. His “blood is calling, urging and inciting you to fight and kill the Crusaders,” Zawahiri cried.

The diatribe was no surprise, the following day being the eleventh anniversary of the 9/11 atrocities committed against the United States by the terror network with which we were — and are — still at war. Plus, jihadists in Benghazi, the terror network’s hub in eastern Libya, had repeatedly attacked American and other Western targets during the preceding five months.

The following night, September 11, 2012, jihadists from al-Qaeda’s main Libyan franchise, Ansar al-Sharia, laid siege to a U.S. State Department mission in Benghazi, the very target jihadists had detonated an IED against only three months earlier, on June 6. They torched the facility, murdered the American ambassador to Libya, killed three additional American officials, and wounded several others in an attack that lasted several hours — a terrorist attack by our wartime enemies during which President Obama and the U.S. armed forces took no meaningful action to respond or rescue our personnel.

Now, do you suppose what happened before the Benghazi massacre — the continuing war with al-Qaeda, the serial jihadist attacks, the call by the terror network’s leader right before the 9/11 anniversary to avenge a “martyr” by striking against the United States — just might shed some light on the terrorist attack involving al-Qaeda’s Libyan franchise against the State Department compound that night?

If you do, you clearly do not work for the Obama administration and its brazenly politicized Justice Department.

For them, as a superseding indictment filed on Monday reaffirms, “al-Qaeda” is a term not to be uttered — except at fundraisers, and only for the purpose of absurdly claiming victory over the terrorist group. And Benghazi is just a spontaneous protest that, somehow, came to involve terrorists — impossible to have foreseen and over in the blink of an eye, before any commander-in-chief could have done much about it.

Yes, Attorney General Eric Holder’s minions have finally filed their long-awaited superseding indictment against Ahmed Abu Khatallah, a ringleader in the Benghazi attack. It is a gussied up replay of the original indictment returned last summer, the one that was roundly mocked by critics, not least by your humble correspondent. That indictment was more a political than a legal document, hewing to the administration’s fictional account of Benghazi as a sudden uprising, not a coordinated attack within the framework of an ongoing terrorist conspiracy.

The Justice Department hopes you’ll miss the chicanery this time because, ostensibly, they’ve beefed up the charges. Instead of the original indictment’s bare-bones brevity — it was just two pages long (actually, just 15 lines) and alleged just one count against the single defendant — the superseding indictment comes in at about 21 pages and now levels 18 charges against Khatallah. But the additional heft merely comes from a mining of new statutory offenses out of the same version of events. The story has not changed.

That is, the new indictment does not allege an al-Qaeda terrorist conspiracy against the United States. It instead posits a scheme lasting just one day — indeed, perhaps just a few hours — in which Khatallah is accused of agreeing to lend material support, namely, himself, to unidentified terrorists who spontaneously attacked the State Department compound without much planning or warning. It is indictment as agitprop: a charging instrument designed to sit comfortably with the Obama administration’s political claims.

The superseding indictment makes no mention of al-Qaeda, much less of Zawahiri’s baying for American blood. After all, the president had said some three-dozen times during the 2012 campaign that he had already defeated al-Qaeda. In fact, Obama had the temerity to repeat that risible claim at his Vegas fundraiser the day after the massacre (“A day after 9/11, we are reminded that a new tower rises above the New York skyline, but al-Qaeda is on the path to defeat and bin Laden is dead”).

The new indictment breathes not a word about the series of jihadist attacks in the months before the Benghazi massacre, including on the State Department mission itself.

Khatallah is now identified as the “commander” of “an Islamist extremist militia in Benghazi” that had merged in 2011 with Ansar al-Sharia. This is an improvement over the original indictment, which did not even allege that Khatallah was a terrorist. That omission must have embarrassed the Justice Department since, as I pointed out at the time, the State Department had already publicly designated Khatallah as a “global terrorist” and a “senior leader” of Ansar al-Sharia. But here’s the thing: The new indictment studiously avoids mentioning that Ansar al-Sharia is al-Qaeda. Rather, Ansar is vaguely described as just “another Islamist extremist group in Libya” that wanted to implement sharia law.

Yet, as the Obama Justice Department well knows, “Ansar al-Sharia” is a moniker used by several al-Qaeda franchises, including in Libya, where the organization is led by Sufyan bin Qumu. Like the scores of other terrorists complicit in the Benghazi massacre and the many anti-Western attacks that preceded it, Qumu is neither charged or mentioned in the indictment of Khatallah (the only terrorist “brought to justice” so far). Yet, as this Long War Journal profile by Tom Joscelyn, recounts, Qumu is a longtime al-Qaeda leader who was detained at Guantanamo Bay until being transferred back to Libya in 2007 — only to return to the jihad when set free by Qaddafi during his failed 2010 attempt to buy peace with the release of anti-regime “rebels.”#page#

Most significant, the superseding indictment contends that everything you need to know about the Benghazi siege happened in a few hectic hours between 9:45 the night of September 11 and 5:15 on the morning of September 12. Just one of those spontaneous uprisings that happen to involve terrorists using mortars.

The new indictment lists 18 counts instead of just one because even a brief assault involving terrorists can yield many felony violations, especially if death results. So now, instead of just conspiring to provide material support to terrorism, Khatallah is also charged with actually providing that support. To repeat, he is said to have done this by contributing himself as “personnel” to the efforts of “terrorists” — terrorists who go unnamed because then you’d have to get into that whole al-Qaeda business.

The Justice Department further confuses matters with a legal error. It alleges that the “objects of the conspiracy” charged against Khatallah included such aims as driving the U.S. out of Libya, attacking the mission, killing Americans, plundering property, and the like. As a strict matter of law, however, the object of a conspiracy to provide material support to terrorists is simply to contribute something — in this case, personnel — to their efforts. The aims of those terrorists may, in turn, include levying war against the United States with all the objectives that entails, including the ones described as “objects of the conspiracy” in the indictment. But that makes them objects of the conspiracy the Justice Department did not actually charge. They are the objects of al-Qaeda’s conspiracy against the United States — the conspiracy the indictment takes pains not to mention, notwithstanding that it was a staple of Justice Department terrorism indictments before President Obama hung his “Mission Accomplished” sign on Osama bin Laden’s corpse.

The remaining charges focus on the murders and attempted murders of American officials, as well as the use of firearms and other “dangerous weapons” against a “federal facility.” They inflate the number of counts and trigger the possibility of a death sentence. They do not change the story. In fact, as in the Fort Hood jihadist attack, these additional charges do not allege terrorism — which, as in the “Khorasan Group” plot, relieves the administration of the inconvenience of uttering the term “al-Qaeda.”

Of course, Khatallah will be convicted and the Obama administration will use the conviction to claim vindication — even as the scores of other terrorists involved in the siege continue the al-Qaeda-driven jihad against America. By the time the trial or the guilty plea comes around, the administration will probably even figure out a way to slip in that the “spontaneous” Benghazi attack was incited by that “hateful anti-Muslim video.”

But understand, this is not law-enforcement or counterterrorism. It is theater and politics.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.

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