The Three Legal Questions Left Unresolved by al-Libi’s Death

al-LibiJust 10 days before his trial on terrorism charges was set to begin in Manhattan federal court, accused al Qaeda operative Nazih Abdul-Hamed al-Ruquai, from Libya, better known as Anas al-Libi, has died in custody, leaving several pending legal questions unresolved.

“He had liver cancer, but I don’t know what killed him,” said his defense attorney, Bernard Kleinman, in a telephone interview.  Kleinman, along with an imam, was at the Beekman Manhattan Hospital when al-Libi died Friday night at 8:30pm, his third day admitted. An autopsy will determine the official cause of death, Kleinman said.  He described hospital staff as “incredibly professional.”

Al-Libi’s medical problems had been known publicly since shortly after his extradition to the United States in late 2013.  He spent portions of his pre-trial detention in hospitals, including a month at a Bureau of Prisons facility in Butner, North Carolina, last year. This morning, federal prosecutors wrote the case’s presiding judge, U.S. District Judge Lewis Kaplan, to advise him of the death:

As the court is aware, on December 31, 2014, Anas al-Libi was taken from the Metropolitan Correctional Center to a New York hospital due to sudden complications arising out of his long-standing medical problems. We write now to inform the court that despite the care provided at the hospital, his condition deteriorated rapidly, and al-Libi passed away yesterday evening.

Al-Libi was due to stand trial starting January 12, along with one other man, Khalid al-Fawwaz, 52, a Saudi who is alleged to have been a former spokesman for deceased al Qaeda leader Osama bin Laden and a founder of his East Africa cell.

In his last public court appearance, in October, al-Libi appeared gaunt and older than his 50 years.  He looked tired and walked unsteadily to the witness stand when he testified about his interrogation by an FBI agent and investigator for the U.S. Attorney for the Southern District of New York aboard a flight from Europe to the U.S.

Al-Libi’s death leaves the legal issue raised that day, whether his statements were voluntary and admissible, and at least two other legal questions, up in the air: (1) the existence of any videotapes of pre-arrest interrogations that occurred while he was in military/CIA custody; and (2) how 2011 letters between al-Libi and bin Laden might be used. Al-Libi testified his confession of membership in al Qaeda and other statements on his flight to the U.S. were not voluntary, despite his initials and signature on an Arabic form waiving his Miranda rights, because his state of mind was confused by his detention on a U.S. military ship for the week prior to his extradition.

In October 2013, U.S. Army’s Delta Force, in conjunction with the CIA and FBI, captured al-Libi on the streets of the Libyan capital of Tripoli pursuant to the indictment stemming from al Qaeda’s 1998 twin truck bombings of U.S. embassies in Kenya and Tanzania, which killed 224 people, including 12 Americans, in the group’s most lethal attach before 9/11. Al-Libi was charged with participating in al Qaeda’s global conspiracy to kill Americans and specifically of conducting surveillance of the embassy in Nairobi, Kenya, in the early 1990s. His maximum sentence could have been life in prison.

“What’s lost is an opportunity at the most basic level to establish my client had no association with the East Africa bombings conspiracy,” Kleinman said.  For example, the attorney said he would have challenged the veracity of the sources of the al-Libi surveillance — two al Qaeda defectors turned cooperating government witnesses.

Subsequent to the suppression hearing, and in light of the recent U.S. Senate Intelligence Committee’s report on CIA treatment of post-9/11 detainees, Kleinman had asked Judge Kaplan to revisit the issue of whether there are videotapes of al-Libi’s interrogation and handling aboard the U.S.S. San Antonio, where he was held after his capture in Tripoli. Al-Libi said he saw camera equipment set up on the ship. “The methods of interrogation used on board the San Antonio were of such an enhanced nature as to have rendered any subsequent Miranda waiver (especially one made within hours of the transfer) meaningless for all intents and purposes,” Kleinman wrote in his December 15 letter.

Judge Kaplan ruled last July there is no proof the sessions were recorded or any videotapes exist. “The government has produced all such materials of which it is aware,” Kaplan decided. “Being ‘unaware’ of an event merely means that the government has made no inquiry of the CIA as to the existence of any such videotapes,” Kleinman countered in the new letter.  “Of course, this assumes that the CIA would provide a factual response.”

In 2005, the CIA misled federal prosecutors and a federal judge on this very question in the trial of 9/11 conspirator Zacarias Moussaoui in the Eastern District of Virginia, when the agency, through prosecutors, told Judge Leonie Brinkema that no tapes ever existed of CIA interrogations or treatment of al Qaeda captives held in secret CIA prisons overseas such as alleged training camp gatekeeper Abu Zubaydah and alleged U.S.S. Cole attack planner Abd al-Rahim al-Nashiri, who both now reside at Guantanamo. In fact, the CIA destroyed the tapes as questions of detainee statements were before the trial court and a federal appeals court.

In al-Libi’s case, a third unresolved issue concerns six letters to bin Laden that prosecutors intended to show the jury. Two are signed by al-Liby, and four others mentioning him were authored by bin Laden’s chief aide during the time the al Qaeda leader was hiding out on Abbottabad, Pakistan. “The letters are both authentic and admissible,” Assistant United States Attorney Nicholas Lewin wrote the court just four days ago.  “The letters are not hearsay.”

Lewin disclosed that a government witness could testify about receiving the letters directly from U.S. Special Forces who removed them from the Abbottabad house after killing bin Laden in May 2011.  The witness got the letters after examining bin Laden’s bullet-ridden dead body, Lewin said. Earlier, in a December 23 declaration to Judge Kaplan defending the planned usage of the Abbattabad letters, Lewin disclosed both defendants, al-Libi and al-Fawwaz, are named on an al Qaeda “member list” discovered in Afghanistan in 2001, after U.S. forces invaded the country in response to 9/11. “The government anticipates adducing trial proof that Fawwaz was in longstanding, repeated, and direct contact with Mohammed Atef, commonly known as Abu Hafs al-Masri,” Lewin wrote, referring to al Qaeda’s longtime military commander, who was killed in an October 2001 air strike. “We also anticipate adducing evidence of connections between Fawwaz and al Liby,” Lewin wrote.

Now, prosecutors say in today’s letter to Kaplan they will file a nolle prosequi (Latin for “we will no longer prosecute”) with respect to al-Libi.  But the prosecution of al-Fawwaz is expected to proceed. Jury selection is scheduled to begin January 12.  Hundreds of potential jurors already filled out 10-page questionnaires at the Manhattan federal courthouse last month.

In two separate jury trials, in 2001 and 2010, federal prosecutors in New York convicted five men for the embassy bombings, and all received life sentences. Originally, four men would have sat at the defense table in this third embassy bombings trial.  Al-Libi is the second defendant to die in custody. Defendant Ibrahim Eidarous, from Egypt, died in 2008 in England, where he and al-Fawazz, and another Egyptian, Adel Abdel Bary, jointly fought their extradition to the U.S. for more than a decade while they were incarcerated.  All three allegedly belonged to al Qaeda’s London cell in the 1990s. Al-Fawwaz and Abdel Bary finally arrived in the U.S. in 2012. Last September, Abdel Bary, 54, pleaded guilty before Judge Kaplan and faces a maximum 25-year sentence, also to be handed down January 12.  He is among a half dozen men to plead guilty before trial to the embassy bombings conspiracy.

In a November opinion rejecting separate trials for al-Libi and al-Fawwaz, Kaplan noted al-Libi was “seriously ill.” “It is possible that his condition may improve, though the opposite may be more likely,” Kaplan presciently wrote, finding further delay caused by severance “may deprive entirely the public of a trial of al Liby…the magnitude and seriousness of which cannot be overstated.”

Prosecutors had no comment on the al-Libi and al-Fawwaz trial beyond their letter to the court, said James Margolin, a spokesman for the U.S. Attorney for the Southern District of New York. “Appropriate arrangements are being made with his family,” the letter said.

Kleinman said, “A man died five-thousand miles from home without seeing his family.  That’s sad.” 

About the Author(s)

Phil Hirschkorn

Fellow at the Center on National Security at Fordham Law School and New York-Based Journalist covering Al Qaeda and terrorism trials for 15 years