WASHINGTON – Senate Judiciary Committee Chairman Chuck Grassley is pressing the State Department and Justice Department for details on how a known terrorist involved in an attack on American officials was able to remain outside the reach of U.S. authorities. The terrorist continued to recruit for and plot future attacks, despite assurances from the State Department that he was being monitored by a foreign government.
Shortly after the September 11, 2012, attacks on the American consulate in Benghazi, Libya, Turkish authorities detained Ali Awni al Harzi, a suspect in the attacks. He was then transferred to his home country of Tunisia to face terrorism charges. The FBI, reportedly with the assistance of the State Department, was allowed to interview al Harzi in Tunisia about his role in the Benghazi attacks. However, rather than standing trial or being transferred to U.S. custody, al Harzi was released by Tunisian authorities in January of 2013.
In congressional hearings later that month, then-Secretary of State Hillary Clinton responded to congressional concerns about the terrorist’s release, testifying that the Tunisian government promised that al Harzi would be surveilled and prohibited from leaving Tunis. Clinton also assured the congressional panels that the State Department would hold the Tunisians to that pledge. Yet, al Harzi was able to leave Tunisia and join ISIS, where he reportedly recruited more foreign fighters, plotted hundreds of suicide attacks and helped ISIS expand from a regional terrorist group into a more globalized one. In June 2015, the Defense Department announced that al Harzi was killed in a U.S.-led airstrike against ISIS targets in Mosul, Iraq.
Grassley’s inquiry seeks to determine whether U.S. officials exhausted every available resource and authority to take custody of al Harzi and prevent him from returning to the battlefield. Grassley has been an outspoken critic of the Obama Administration’s attempts to treat terrorists as common criminals rather than enemy combatants. In a letter last year to the Attorney General, Grassley and nine other senators stated, “... we fear the potential loss of intelligence when the Administration elects to outsource the detention and interrogation of terrorists to foreign governments, perhaps due to a political aversion to the U.S. detaining them at Guantanamo.”
Here are links to Grassley’s letters to the State Department and Justice Department. Full text of the letters can be found below:
January 15, 2016
VIA ELECTRONIC TRANSMISSION
The Honorable John F. Kerry
Secretary of State
Office of the Secretary
U.S. Department of State
2201 C Street, NW
Washington, DC 205
Dear Secretary Kerry:
On June 22, 2015, the Department of Defense announced that the U.S. had killed the Tunisian terrorist Ali Awni al Harzi in an airstrike against ISIS targets in Mosul, Iraq. On July 1, 2015, I wrote to Attorney General Lynch and FBI Director Comey regarding prior efforts by the FBI and the Department of Justice (DOJ) to bring al Harzi to justice. I write today to inquire about the State Department’s actions in conjunction with those efforts.
According to the United Nations’ official designation of al Harzi as a terrorist, he “[p]lanned and perpetrated the attack against the Consulate of the United States in Benghazi, Libya on 11 Sep. 2012.” In October of 2012, al Harzi was detained in Turkey as a suspect in the attack and sent to Tunisia on charges of membership in a terrorist organization. The State Department reportedly played a role in efforts to persuade the Tunisian government to allow the FBI access to al Harzi, including a meeting between Deputy Secretary of State William Burns and a senior Tunisian foreign ministry official. After this initial reluctance by the Tunisian government to let the FBI speak with al Harzi, and subsequent intervention by Senators Graham and Chambliss, the FBI questioned al Harzi in Tunisia in December of 2012. In response, members of al Harzi’s al Qaeda-linked group reportedly released pictures of the interviewing FBI agents to jihadist websites. Nonetheless, rather than being tried for any offense by the Tunisian court or transferred to U.S. custody, al Harzi was released from Tunisian custody in January of 2013. His al Qaeda-linked group posted a celebratory video of his release online.
In multiple Congressional hearings that same month, then-Secretary of State Clinton responded to Congressional concerns about al Harzi’s release. She acknowledged that al Harzi was a suspect in the Benghazi attacks and stated that his release stemmed from an issue at the time regarding the availability of evidence “that could be provided in an open court” in Tunisia. She testified that, despite al Harzi’s release, the Tunisian government had assured the U.S. government that it was monitoring him and that he was forbidden to leave Tunis. Secretary Clinton further assured Congress that the State Department would hold the Tunisians to that pledge and would monitor the situation carefully.
Specifically, in a hearing before the Senate Foreign Relations Committee, she provided the following explanation and assurance:
Senator Risch: Only one person has been arrested regarding the attack on Benghazi and was then released. […]
Secretary Clinton: […] I think you’re referring to the Tunisian, Harzi, who appeared in a Tunisian court. Upon his release, I called the Tunisian prime minister. A few days later Director Mueller met with the Tunisian prime minister. We have been assured that he is under the monitoring of the court. He was released, because at that time – and Director Mueller and I spoke about this at some length – there was not an ability for evidence to be presented yet that was capable of being presented in an open court. But the Tunisians have assured us that they are keeping an eye on him. I have no reason to believe he is not still in Tunis, but we are checking that all the time.
In a hearing before the House Foreign Affairs Committee, Secretary Clinton and Representative Poe had the following exchange:
Rep. Poe: As of today, several months later, after the attack in Benghazi, has, to your knowledge, any person been put currently in custody anywhere by any government for the responsibility or as a suspect involved in the Benghazi attack?
Secretary Clinton: Congressman, there is one potential suspect who has been placed under monitoring by the Tunisian government. […]
Rep. Poe: My understanding is that the Tunisian, the person that was held in Tunisia was released by a judge there [….]
Secretary Clinton: Well, Congressman, I confirmed with Director Mueller, who was just in Tunisia meeting with their high officials that this person is basically under law enforcement surveillance and forbidden to leave Tunis. Director Mueller told me that that had been confirmed to him by the Tunisians.
Later in that hearing, she had the following exchange with then-Representative Cotton:
Rep. Cotton: Both the Chairman and Mr. Poe have referenced a Tunisian suspect who has been released, I believe that’s Mr. Ali Harzi, on January 8th it was reported in the New York Times. Do you find it distressing that the Tunisian government has released that gentleman […]?
Secretary Clinton: At this point, Congressman, I do not, for two reasons. First, I had a long conversation with high ranking Tunisian officials about this, as did director Mueller of the FBI when he was there in person. We have been assured that there was an effort to have rule of law, judicial process, sufficient evidence not yet available to be presented, but a very clear commitment made to us that they will be monitoring the whereabouts of Harzi and we’re going to hold them to that and watch carefully.
But that was not to be the case.
As noted in press reports, after being questioned by the FBI about the Benghazi attacks and released from Tunisian custody, al Harzi became an ISIS operative, was responsible for planning hundreds of suicide attacks around the world, and was responsible for recruiting foreign fighters and sending them to the fight in Syria. According to the New York Times, “[h]e recruited fighters from Europe and North Africa, helped them travel to Iraq and Syria, procured weapons and other matériel, and organized attacks. […H]is links with ISIL recruitment and financial networks in such locations as Europe, Africa and the Persian Gulf helped ISIL expand from a local group to a more globalized organization.” Then, on June 22, 2015, the Department of Defense announced that al Harzi had been killed in a U.S. airstrike in Mosul, Iraq on June 15, 2015, further stating that “[h]is death degrades ISIL’s ability to integrate North African jihadists into the Syrian and Iraqi fight and removes a jihadist with long ties to international terrorism.”
In light of these circumstances, my July letter to Director Comey and Attorney General Lynch asked a number of questions in an attempt to get more information to evaluate the situation. In response, on September 30, 2015, the FBI provided a classified briefing to members of my Committee staff. That briefing answered a few of the questions I raised in my letter, but left the majority unaddressed. The FBI declined to discuss then-Director Mueller’s reported discussions with the Tunisian government or the State Department regarding al Harzi. Moreover, the FBI personnel declined to speak to issues involving other parts of the Department of Justice or other government agencies, even on matters involving the FBI’s interaction with those other DOJ components or other agencies. Instead, the FBI requested that the Committee direct its inquiry to officials from the Department of Justice and the Department of State.
Accordingly, in order to further evaluate this situation, please respond to the following by January 29, 2016:
1. Did the State Department undertake any diplomatic efforts toward the government of Turkey to persuade it to allow the FBI to interview or otherwise have access to al Harzi while he was in Turkish custody? If so, please describe these efforts and their effects, and please provide all related records, including diplomatic notes, records of demarches, instruction cables, aides-mémoire, letters, non-papers, and reporting cables. If the Department did not make any such efforts, why did it not?
2. Did the State Department undertake any diplomatic efforts toward the government of Turkey relating to the execution of a provisional arrest of al Harzi pending a possible extradition? If so, please describe these efforts and their effects, and please provide all related records. If the Department did not make any such efforts, why did it not?
3. Did the State Department take any action relating to a request to the Turkish government to extradite al Harzi to U.S. custody? If so, please describe these actions and their effects, and please provide all related records. If not, why not?
4. Did the State Department undertake any diplomatic efforts toward the government of Tunisia to persuade it to allow the FBI to interview or otherwise have access to al Harzi while he was in Tunisian custody? If so, please describe these efforts and their effects, and please provide all related records. If not, why not?
5. Regardless of the absence of an extradition treaty with Tunisia, did the State Department undertake any diplomatic efforts toward the government of Tunisia relating to the execution of a provisional arrest of al Harzi pending a possible extradition? If so, please describe these efforts and their effects, and please provide all related records. If the Department did not make any such efforts, why did it not?
6. Regardless of the absence of an extradition treaty with Tunisia, did the State Department take any action relating to a request to the Tunisian government to extradite al Harzi to U.S. custody? If so, please describe these actions and their effects, and please provide all related records. If not, why not?
7. Please provide all records relating to the reported meeting between Deputy Secretary of State William Burns and senior Tunisian foreign ministry official Hedi Ben Abbes in October or November of 2012.
8. Please provide all records relating the Secretary Clinton’s communication with the Tunisian prime minister and other Tunisian officials about al Harzi, as referenced in her Congressional testimony.
9. Please provide all records relating to Secretary Clinton’s communication with Director Mueller about al Harzi, as referenced in her Congressional testimony.
10. Please provide all records relating to the State Department’s interactions with any other parts of the executive branch relating to al Harzi.
11. Did the State Department receive updates from the Tunisian government about al Harzi after his release? If so, please provide all related records. If not, why not?
12. Did the State Department contact the Tunisian government after al Harzi’s release to inquire about the Tunisian government’s monitoring of al Harzi, the results of that monitoring, and the whereabouts and activities of al Harzi? If so, please provide all related records. If not, why not?
Please number your answers according to their corresponding questions. If any of these documents are classified, please deliver them to the Office of Senate Security. If you have any questions about this request, feel free to contact Patrick Davis of my Committee staff at (202) 224-5225. Thank you for your attention to this important matter.
Sincerely,
cc:
The Honorable Patrick J. Leahy
Ranking Member
Senate Committee on the Judiciary
The Honorable Lindsey O. Graham
Chairman, Subcommittee on Crime and Terrorism
Senate Committee on the Judiciary
The Honorable James E. Risch
United States Senate
The Honorable Ted Poe
United States House of Representatives
The Honorable Tom Cotton
United States Senate
January 15, 2016
VIA ELECTRONIC TRANSMISSION
The Honorable Loretta Lynch
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
The Honorable Channing D. Phillips
Acting U.S. Attorney for the District of Columbia
U.S. Department of Justice
555 4th Street, NW
Washington, DC 20530
Dear Attorney General Lynch and Mr. Phillips:
On June 22, 2015, the Department of Defense announced that the U.S. had killed the Tunisian terrorist Ali Awni al Harzi in an airstrike against ISIS targets in Mosul, Iraq. On July 1, 2015, I wrote to Attorney General Lynch and FBI Director Comey regarding prior efforts by the FBI and the Department of Justice (DOJ) to bring al Harzi to justice. According to the United Nations’ official designation of al Harzi as a terrorist, he “[p]lanned and perpetrated the attack against the Consulate of the United States in Benghazi, Libya on 11 Sep. 2012.”
In October of 2012, al Harzi was detained in Turkey as a suspect in the attacks and sent to Tunisia on charges of membership in a terrorist organization. After initial reluctance by the Tunisian government to let the FBI speak with al Harzi, and the subsequent intervention by Senators Graham and Chambliss, the FBI questioned al Harzi in Tunisia in December of 2012. In response, members of al Harzi’s al Qaeda-linked group reportedly released pictures of the interviewing FBI agents to jihadist websites. Nonetheless, rather than being tried for any offense by the Tunisian court or transferred to U.S. custody, al-Harzi was released from Tunisian custody in January of 2013. His al Qaeda-linked group posted a celebratory video of his release online.
In multiple Congressional hearings that same month, then-Secretary of State Clinton acknowledged that al Harzi was a suspect in the Benghazi attacks and stated that his release stemmed from an issue at the time regarding the availability of evidence “that could be provided in an open court” in Tunisia. She testified that, despite al Harzi’s release, the Tunisian government had assured the U.S. government that it was monitoring him and that he was forbidden to leave Tunis. Secretary Clinton further assured Congress that the State Department would hold the Tunisians to that pledge and would monitor the situation carefully.
But that was not to be the case.
As noted in press reports, after being questioned by the FBI about the Benghazi attacks and released from Tunisian custody, al Harzi became an ISIS operative, was responsible for planning hundreds of suicide attacks around the world, and was responsible for recruiting foreign fighters and sending them to the fight in Syria. According to the New York Times, “[h]e recruited fighters from Europe and North Africa, helped them travel to Iraq and Syria, procured weapons and other matériel, and organized attacks. […H]is links with ISIL recruitment and financial networks in such locations as Europe, Africa and the Persian Gulf helped ISIL expand from a local group to a more globalized organization.” Then, on June 22, 2015, the Department of Defense announced that al Harzi had been killed in a U.S. airstrike in Mosul, Iraq on June 15, 2015, further stating that “[h]is death degrades ISIL’s ability to integrate North African jihadists into the Syrian and Iraqi fight and removes a jihadist with long ties to international terrorism.”
In light of these circumstances, my July letter asked a number of questions in an attempt to get more information to evaluate the situation. In response, on September 30, 2015, the FBI provided a classified briefing to members of my Committee staff. That briefing answered a few of the questions I raised in my letter, but left the majority unaddressed. The FBI declined to discuss then-Director Mueller’s reported discussions with the Tunisian government or the State Department regarding al Harzi. Moreover, the FBI personnel declined to speak to issues involving other parts of the Department of Justice or other government agencies, even on matters involving the FBI’s interaction with those other DOJ components or other agencies. Instead, the FBI requested that the Committee direct its inquiry to officials from the Department of Justice and other involved agencies.
On October 16, 2015, Assistant Attorney General Kadzik sent a response letter that merely referenced the FBI briefing, but did not provide any responses to my questions. It did state that I should “not hesitate to contact this office or the FBI[] … if we may provide additional assistance regarding this [] matter.” Because so many of my initial questions have not been answered, I am contacting you to raise them again, along with some new ones.
As reported by the New York Times, within 24 hours of the Benghazi attack, Attorney General Holder assigned the Benghazi cases to the U.S. Attorney for the District of Columbia, although the FBI agents leading the investigation were in New York. According to the article:
Early in the Benghazi investigation, the [FBI] agents and [DOJ] prosecutors clashed about whether there was enough [evidence] to file charges. Agents from New York traveled to Washington to make their arguments that they had enough evidence. The prosecutors disagreed. Ultimately, senior Justice Department officials sided with the prosecutors, and charges were filed months later.
1. Did FBI agents ask DOJ attorneys to file charges against al Harzi? If so, when? Did DOJ attorneys refuse to do so at that time? Did senior Justice Department officials agree that no charges should be filed at that time? If so, which senior Department officials made this determination? Did the DOJ attorneys or officials determine that the evidence against al Harzi at the time did not establish probable cause?
2. Section 9-27.270 of the U.S. Attorneys’ Manual requires that “[w]henever the attorney for the government declines to commence or recommend Federal prosecution, he/she should ensure that his/her decision and the reasons therefore are communicated to the investigating agency involved and to any other interested agency, and are reflected in the office files.” Please provide all records related to FBI’s request, if any, that DOJ initiate a prosecution of al Harzi, DOJ’s refusal, and any concurrence by senior DOJ officials.
3. Did anyone from the US Attorney’s Office, DOJ’s National Security Division (NSD), or any other component of the Justice Department ever seek authorization to prosecute al Harzi? If not, why not? If so, when? Please provide all records related to that request.
4. Did anyone from the U.S. Attorney’s Office, NSD, or any other component of the Justice Department prepare a prosecution memorandum related to al Harzi? If so, please provide a copy of that memorandum and all records relating to any decision on the issue. If not, why not?
5. Did anyone from the U.S. Attorney’s Office, NSD, or any other component of the Justice Department ever request to use classified or declassified information as evidence in a criminal case against al Harzi, either in support of his prosecution in Tunisia or a prosecution in the United States? If so, was such a request granted? If not, why not? Please provide copies of all such evidence, all documents relating to requests to use the evidence in a criminal case, and all documents relating to discussion and decisions on the issue.
6. Did the Department of Justice ever seek or obtain an arrest warrant, criminal complaint, or indictment against al Harzi? If so, when? Please provide copies of all related documents.
7. Did the Department of Justice ever seek or obtain any red, blue, or green notice with INTERPOL related to al Harzi?
8. Was al Harzi ever considered for law-of-war detention pursuant to the Authorization for Use of Military Force, rather than an Article III prosecution? If so, please provide all records relating to such consideration. If not, why not? Was the sufficiency of the evidence against al Harzi ever considered under the burden of proof for habeas corpus challenges to law-of-war detention rather than that of Article III prosecution? Were DOJ attorneys with expertise in habeas corpus challenges to law-of-war detention consulted about al Harzi’s case?
11. As noted above, it was publicly reported that FBI agents interviewed al Harzi in Tunisia in December of 2012. Please provide all records relating to the United States government’s request to interview al Harzi in Tunisia and the interview itself.
12. If the government requested extradition from Turkey and Tunisia, but they refused, did DOJ consider, or was DOJ aware of other government agencies’ consideration of, securing al Harzi via an Alvarez-Machain type rendition? As stated in Section 9-15.610, prosecutors may pursue such rendition if given the advance approval of the Department of Justice and if OIA is notified before any such operation is undertaken. Indeed, it appears al Harzi’s fellow Benghazi attacker Abu Khattala was seized in Libya in 2014 in such an operation. If considered, why was an Alvarez-Machain rendition rejected? If it was not considered, why was it not?
13. After al Harzi was released from Tunisian custody, did any component of the Justice Department receive updates from Tunisia about al Harzi’s whereabouts and activities? If so, when did they cease? Please provide copies of any such reports.
14. After al Harzi was released from Tunisian custody, when did DOJ prosecutors involved in his case learn of his subsequent terrorist activities with ISIS? What actions did they take in response to this information?
Please provide your response by January 29, 2015, and please number your answers according to their corresponding questions. If any of these documents are classified, please deliver them to the Office of Senate Security. If you have any questions about this request, feel free to contact Patrick Davis of my Committee staff at (202) 224-5225. Thank you for your attention to this important matter.
Sincerely,
cc:
The Honorable Patrick J. Leahy
Ranking Member
Senate Committee on the Judiciary
The Honorable Lindsey O. Graham
Chairman, Subcommittee on Crime and Terrorism
Senate Committee on the Judiciary
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