Many have criticized the Obama administration’s plans to try the alleged leader of the Benghazi, Ahmed Abu Khattala, in civilian court. “Ahmed Abu Khattala should be held at Guantanamo as a potential enemy combatant,” said Senator Lindsey Graham. Representative Trey Gowdy, who is leading the House committee investigating the Benghazi attack, argued for “a noncivilian court trial,” i.e. military commission. The problem with these proposed alternatives is that they are not legally available.
Military detention does not appear to be an option because the United States does not appear to believe that Abu Khattala and the others who perpetrated the Benghazi attacks fall within the AUMF. Josh Gerstein reports that last year, Joint Chiefs Chairman General Martin Dempsey stated: "The individuals related in the Benghazi attack, those that we believe were either participants or leadership of it, are not authorized use of military force. . . . They don’t fall under the AUMF authorized by the Congress of the United States." If Abu Khattala does not fall under the AUMF then it would be very hard to sustain military detention of him.
What about trial in a military commission? The jurisdiction of military commissions is broader than the AUMF. Section 948c of the Military Commission Act of 2009 provides (my emphasis): “Any alien unprivileged enemy belligerent is subject to trial by military commission as set forth in this chapter.” An “unprivileged enemy belligerent” is defined in Section 948a as follows:
The term ‘unprivileged enemy belligerent’ means an individual (other than a privileged belligerent) who —
(A) has engaged in hostilities against the United States or its coalition partners;
(B) has purposefully and materially supported hostilities against the United States or its coalition partners; or
(C) was a part of al Qaeda at the time of the alleged offense under this chapter.
Abu Khattala is an alien and not a privileged belligerent. It might appear that he is an unprivileged belligerent because he has (or is alleged to have) “engaged in hostilities against the United States.” However, the MCA defines “hostilities” to mean “any conflict subject to the laws of war,” i.e., probably, an armed conflict. While the Benghazi attacks were horrific, they might not – indeed, almost certainly don’t – rise to the level of a stand-alone armed conflict. (It also appears that in light of General Dempsey’s comment, the attack on Benghazi was not part of the armed conflict with al Qaeda.) Thus it does not appear that Abu Khattala is subject to trial by military commission. At a minimum a trial of Abu Khattala in a military commission would be legally very, very risky at the jurisdictional stage, on top of the other legal risks that a commission trial might pose.
There are other complications here, but my first take is that the critics of the Obama administration’s choice of civilian court to incapacitate Abu Khattala don’t have a legal leg to stand on. If the United States wants to maintain custody over Abu Khattala, interrogate him as aggressively as possible, and incapacitate him for a long time, then a lawful interrogation on ship pursuant to the “public safety” exception before sending him to the United States for civilian trial appears to be the only legally available option.