What Is the Secret Item the Government Wants Withheld from Abdulmutallab?

As I tweeted earlier, I find the timing of the Anwar al-Awlaki assassination to be rather curious. The first time we might hear real evidence supporting the government’s claim that Awlaki was operational, and not just producing propaganda, will be in Umar Farouk Abdulmutallab’s trial, which starts next week.

Which is why I’m curious about the government’s motion for a protective order submitted last Friday, seeking to have one item withheld from Abdulmutallab (who, remember, is technically defending himself; Judge Edmunds granted the motion on Monday).

The United States of America respectfully moves pursuant to [Criminal Procedure and CIPA] for a second protective order precluding the discovery of a particular item which contains classified information. The classified information is not exculpatory, is privileged, and is otherwise not discoverable.

A page and a half of the seven page filing (which includes a half page redacted description of the item in question) is background which I don’t believe to be boilerplate; that is, I think it is background specific to this filing. And that background includes a close focus on Abdulmutallab’s ties to Awlaki.

The defendant told the [FBI] agents that he was inspired to commit jihad against the United States as a result of regular visits to the web sites of Anwar Awlaki, a member and leader of Al Qaeda in the Arabian Peninsula (“AQAP”), which has been designated by the United States government as a foreign terrorist organization. The defendant stated that while in Yemen, he was able to make contact with members of Al Qaeda, who subsequently provided the defendant with the bomb and gave him training on its components. The defendant and other members of Al Qaeda discussed plans to attack the United States.

Now, I have no real suspicions about what this item is and I’m not suggesting the government is withholding it improperly.

But I find it curious that the government is, at this late date (and at a time when they were already watching Awlaki for their opportunity to kill him) finding items that must be withheld from Abdulmutallab. And I find the particular focus in this filing on his time with Awlaki–precisely the stuff that supports the claim Awlaki had given Abdulmutallab operational instructions–to be interesting.

Is there any reason why the government might be obliged to protect the assassination approval, which we know to be based in part on Abdulmutallab’s own testimony, from him?

Update: I’ve got just a few more major filings left, and thus far, I haven’t found one that mentions Awlaki. This is how the superseding indictment referred to Abdulmutallab’s time in Yemen, which is some of the most detail given on this front.

Defendant Umar Farouk Abdulmutallab is a Nigerian national. In August 2009, defendant Abdulmutallab traveled to Yemen for the purpose of becoming involved in violent “jihad” on behalf of Al Qaeda.


In preparation for a suicide attack, defendant Abdulmutallab practiced detonating explosive devices similar to one which he later received for an attack on a U.S. airliner.

The government moved for an earlier protective order in August. That motion doesn’t mention Yemen at all.

Update: This request for expert testimony again mentions Yemen.

The First Superseding Indictment, on which defendant will be tried, alleges that he traveled to Yemen to become involved in violent jihad on behalf of Al Qaeda, a designated terrorist organization, as part of a conspiracy to commit an act of terrorism transcending national boundaries.

And it describes the importance of English-language propaganda.

Finally, the government seeks to admit three minutes and forty two seconds of the Al Qaeda produced video, America and the Final Trap1 and portions of the Al Qaeda in the Arabian Peninsula publication Inspire. Through testimony by the Al Qaeda expert, see Argument A, supra, the government will establish that America and the Final Trap and Inspire are produced by Al Malahem media, an Al Qaeda production company, that products of Al Malahem media serve as official statements by Al Qaeda, and thus are unquestionably authentic. The Al Qaeda expert will explain the reasons Al Qaeda produces Arabic language videos with accurate English language subtitles, as is the case with America and the Final Trap. The expert also will establish that such productions are created by terrorist organizations as part of and in furtherance of their criminal conspiracies, for a number of reasons. Those reasons include the goals of terrorizing their targets into fearing that additional attacks will be forthcoming, and to convince their own supporters and possible recruits that the terrorists are successful and are gaining the upper hand.

And it mentions the toner cartridge plot.

The conspiracy to commit aircraft attacks against the United States had not ended, as demonstrated, at a minimum, by the contents of America And the Final Trap and the 2010 toner cartridge conspiracy by Al Qaeda in the Arabian Peninsula.

Yet in none of these discussions–all of which involve actions in which Awlaki was central–does the filing mention the cleric.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

11 replies
  1. geoschmidt says:

    which we know to be based in part on Abdulmutallab’s own testimony, from him?

    That is a Catch 22.

    For crist’s sakes what are reasons for stuff, Tell what it is… (everthing too top secret… ? how do ya have a democracy of informed… denizens… when they are mainly a bunch a mushrooms? /in the dark fed w/horsefeathers.

    Niemand’s poem about staying silent when the neighbor is hauled off should be looked at again, now that the global transnational thing is up and trying it’s legs… drones… them’s the bees ain’t male or female… don’t trust em!

  2. Kathleen says:

    Tonight on MSNBC’s Martin Bashir’s investigative reporter Jeremy Scahill on he stated that al Awlaki was “barely mid level” a “virtual no body”. Scahill went on to say the Obama administration is “normalizing these policy’s”

    On Dylan Ratigans..Ratigan was banging the “kill the terrorist, kill the terrorist” drum. Ari Berman brought up a few good points about why liberals would condemn Bush and team for torture, Gitmo, killings but celebrating Obama’s orders to execute alleged terrorist.

    Then on Chris Matthews he was really banging the “kill the terrorist” drum. He had Even Kohlman on who stated “no question about his guilt’ Kohlman kept saying you can go watch al Alwaki tapes on the web. So I am have never watched or listened to him before. Kohlman directed me to these tapes. Did he inspire me to listen?

    When will Chris Matthews grow some balls and have guest on who really offer opposing views based on US and international laws instead of banging on this repeat what they say drum? Have Glen Greenwald, Marcy Wheeler, Jeremy Scahill on instead of bowing to what the Bush or Obama administrations repeat.

    “a religion of justice”

  3. papau says:

    Per the WashPost the administration asked for an opinion from Justice and was told that Obama had a right to enlarge the concept of hot battlefield justice to include cars on a road in another country.

    Per the WP: ” “What constitutes due process in this case is a due process in war,” said one of the officials, who spoke on the condition of anonymity to discuss closely held deliberations within the administration.”

    And we can rest easy because while we now know a president can order the killing of U.S. citizens overseas as a counterterrorism measure, ” “the CIA would not have killed an American without such a written opinion (the written legal opinion from Justice).” ”

    I guess this just an extension of the rule that our Courts can not review anything that Congress says they can not review.


    sigh ……

  4. thatvisionthing says:

    So much for a material witness:

    Ibrahim Al-Asiri, Bomb-Maker Linked To 2009 Christmas Day Plot, Likely Killed In Yemen Drone Strike: Officials

    …Ibrahim al-Asiri is the bomb-maker linked to the bomb hidden in the underwear of a Nigerian man accused of trying to blow up a plane over Detroit on Christmas Day 2009.

    The FBI pulled al-Asiri’s fingerprint off that bomb…

    Al-Asiri’s death would make the attack perhaps the most successful single drone strike ever…

  5. rugger9 says:

    So, according to Malloy, Awlaki was targeted because he was inspiring terrorism, but if that makes him a target, why isn’t Beck [Tides], Palin [crosshairs] and the rest of the flying monkeys on the kill list? Oh, that’s right, the RW nuts were all lone wolves, no matter how many there are. I posted this twice because it really needs an answer.

  6. emptywheel says:

    @rugger9: Right. Contemplating a post on whether we ought to kill Hal Turner.

    That’s the problem with Evan Kohlman’s point: Awlaki was purportedly killed particularly bc he had moved to an operational role. The Abdulmutallab attack is key to that, but they’ve made all the stuff that describes his operational role secret. FWIW, they’ve also eliminated the possibility that a lot of info about Abdulmutallab’s condition when he told them Awlaki was operational. For example, there’s a dispute about how much pain killers were was on. Details like that might have been challenged in an Awlaki trial. Not so in an assassination.

  7. lysias says:

    @papau: That WaPo article doesn’t mention the Office of Legal Counsel within the Justice Department, does it? That sort of opinion usually comes from OLC. I wonder if they were cut out for some reason.

  8. Dan says:

    ‘precluding the discovery of a particular item which contains classified information’

    ‘The defendant stated that while in Yemen, he was able to make contact with members of Al Qaeda, who subsequently provided the defendant with the bomb and gave him training on its components’

    What jumps out at me from these statements is: What/how could Abdulmutallab have or want access to anything with classified information? This sounds like a cell phone or laptop computer. Add in the second quote, and this sounds like one of the FBI’s manufactured terror attacks. Would the “thing” show his contacts to be CIA rather than AQAP? Would it show the operational aspects coming from government agents rather than Awlaki? Would this show the Christmas Day attack to be a False Flag op to gin up terror in US?

    If not a phone or computer, would the item be some piece of the bomb that would demonstrate US involvement in the manufacture of the device?

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